# State v. Merlo

> Oregon Supreme Court · June 18, 1919 · 92 Or. 678

URL: https://www.frixlaw.com/law-library/cases/6906712

## Case

- **Full name:** STATE v. MERLO
- **Court:** Oregon Supreme Court
- **Decided:** June 18, 1919
- **Citations:** 92 Or. 678; 173 P. 317
- **Precedential status:** Published
- **Opinion:** Concurrence by Bennett
- **Judges:** Bean, Bennett, Harris, McBride, Moore
- **Cited by:** 26 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6906712

## Opinion text

BENNETT, J.,
Concurring in Part. — I concur in the result announced in the opinion of Mr. Justice Harris. I also concur with his opinion as to the grounds upon which that result was reached, and agree a;s to what is said in regard to the impeachment of the witness, *713 Luigi Beggi, and as to the general question as to whether or not a party calling a witness, who has simply testified to a negative, may impeach him by showing that he has made at other times affirmative statements, which are inconsistent with his denial of knowledge on the stand, and which, if testified to, would have been material evidence in the cause.
As I understand it, the rule is well settled in this state and generally, that a party calling a witness, who simply says, in relation to a given matter, that “I don’t know” or that “I don’t remember” cannot impeach his own witness by showing that he has made statements at other times, that he did know, and has related facts favorable to the cause of the party calling him.
In Langford v. Jones, 18 Or. 307, 326 ( 22 Pac. 1064 ), Chief Justice Thayeb, delivering the opinion of the court, said:
“Section 838, Civil Code, permits the party introducing a witness to contradict him by other evidence, and to show that he has made at other times statements inconsistent with his present testimony; but that section does not allow the party to inquire about matters regarding which the witness has not given any testimony, or testimony of a weak a/nd unsatisfactory character, and then prove his statements made at another time in reference to such matters. The intent of the provision was to allow a party producing a witness who testifies adversely to him regarding some matter which directly affects the merits of the case, to impeach such testimony in the manner there pointed out. The object of the section was to prevent the party from being prejudiced by the evidence of his own witness. He may, of course, call his attention to any statements he may have made at other times, for the purpose of refreshing his memory, but he has no right to ask him about his having made some statement at another time, favorable to the party’s side of *714 the case, which the witness has given no testimony in regard to; nor, a fortiori, to prove what that statement was. The Code certainly did not intend to permit a party to get in testimony as a makeweight, in support of his cause of action or defense, by such a course; and that evidently is the character of the said statement. To allow a party, after calling him as a witness and failing to elicit from him any advantageous testimony, to prove that the witness at some other time and place had made statements favorable to the claim of the party, is a strange mode of securing proof. It would be a kind of evidence which I could not distinguish from hearsay. Counsel for appellant cited a number of authorities to show that such a course was not permissible; but I think that the bare statement of the proposition is a sufficient refutation of its correctness. If it were proper, a case could be made out many times by proof of what third persons had said; it would only be necessary to call the persons as witnesses and attempt to show by them the substance of the matter embraced in the statements, and having failed in that, then to prove what such persons had said at another time and place, when they were not under oath, and obtain the benefit of that as direct evidence of the fact. Such a construction would enable parties to employ as a sword what was intended as a shield. Instead of availing themselves of the benefits of the statutory rule in order to avoid the effect of damaging testimony given against them by a witness called to prove a fact in their favor, they could make use of it for the direct purpose of establishing the fact. It is enough to say that the legislature never intended by said provision of the Code to adopt any such absurdity.”
This opinion was quoted with approval by Mr. Justice Moore in State v. Steeves, 29 Or. 85 (43 Tac. 947), in a very carefully prepared opinion, in which that learned and careful Jurist adds:
*715 “The rule appears to be well settled that a party cannot impeach his own witness by showing he had made statements inconsistent with the testimony given at the trial, unless the testimony so given be material .and prejudicial to the interests of the party calling him.”
And in State v. Yee Gueng, 57 Or. 509 ( 112 Pac. 424 ), Mr. Justice King, delivering the opinion of the court, quotes both of the preceding cases with entire approval, and says:
‘“Applying the rule thus announced to the case in hand, it will be observed that the witness gave no testimony directly adverse, or prejudicial to the state. He was asked whether certain conditions existed, and the tenor of his responses was to the effect that he did not know, or could not furnish the desired information, * * it was merely testimony of a ‘weak and uncertain character’ such as adverted to in Langford v. Jones , and suggested in State v. Steeves * * Nor can the fact that the former statements were made under oath change the rule, for the accused in this case, although jointly indicted with Lem Woon, was not on his trial at that time, was not present when the statements were made, and had he been present would have had no opportunity to cross-examine the witness or to dispute his assertions.”
This is also the rule, as I read the reports, laid down generally, and almost universally, in the decisions of the courts of other states
In Commonwealth v. Welsh, 70 Mass. (4 Gray) 535 , it appears from the statement of the case, that—
“The witness• testified with a great deal of reluctance, and showed a strong disposition to conceal the' facts which he knew, and evaded the questions put to him by the District Attorney.”
He was asked the following question:
*716 “Q. Did you not swear before tbe grand jury that you did know the defendant’s business, and that you did know where the defendant’s shop was situated * * ?
“The district attorney assigned no reason for putting the question, and the court gave no reason for allowing it, nor was their any explanation made by court or counsel.”
The court, by Shaw, Chief Justice, says:
“The evidence'of what the witness testified before the grand jury ought not to have been received. It bore upon no question pertinent to the issue. It was not to neutralize the effect of evidence given by the ■witness against the party calling him; for the witness had given none. It could only be to disparage the witness, and show him unworthy of credit with the jury, which was inadmissible.”
The Supreme Court of Kentucky in Saylor v. Commonwealth (Ky.), ( 33 S. W. 185 , 186), says:
“Nor can a witness who fails to testify to substantive facts be ashed if he has not made statements to others out of court, that such facts exist, for the purpose of proving that he had made such statements, as that would transform declarations made out of court, and not under the sanction of an oath, into substantive testimony.
In Rickerson v. State, 106 Ga. 391, 392 ( 33 S. E. 639 ), the prosecution was for seduction. The defendant called a witness who, upon his examination, testified that he had never had intercourse with the female in question. Counsel for the accused then offered to impeach his statement, and the court said:
“While under our statute.' (Civil Code, 5290) a party may impeach a witness voluntarily called by him, where he can show to the court that he has been entrapped by the witness by a previous contradictory statement, yet this rule is not applicable where the tes *717 •timony of the witness is not prejudicial to such party. In such case the credibility of the witness is immaterial, as he has done no damage. The mere failure of a witness to testify to facts supposed to be beneficial to the party introducing him and which were expected to be proved by him does not come within the reason or policy of the rule.”
In Nathan v. State, 131 Ga. 48 ( 61 S. E. 994 ), the court approved the Rickerson. case and followed the same.
To the same effect is State v. Reed, 60 Me. 550 ; People v. Creeks, 141 Cal. 529 ( 75 Pac. 101 ); In re Dolbeer’s Estate, 153 Cal. 652 ( 96 Pac. 266 , 15 Ann. Cas. 207); Commonwealth v. Bavarian Bluing Co., 26 Ky. Law Rep. 121 ( 80 S. W. 772 ).
In 40 Cyc. 2696, the rule is stated thus:
“The mere fact that a witness has failed to testify as expected does not warrant impeaching him by proof of prior statements in conformity to what he was expected to testify; but proof of prior contradictory statements of a party’s own witness is admissible only where the witness has given affirmative testimony hostile or prejudicial to the party by whom he was called; and in such case the proof must be confined to contradictions of the testimony of the witness which is injurious to the party seeking to impeach him.”
Indeed, the only exceptions to the universality of this rule seem to be a few cases where the court has failed to distinguish between the materiality of the testimony actually given by the witness in the same trial in which he is sought to be impeached, and the materiality of the proposed statements made by the witness, out of court, or in some other proceedings, where the adverse party had no opportunity to cross-examine.
*718 The only discordant note among the cases in onr own state that I have been able to find is the opinion of Mr. Chief Justice Bean in State v. McDaniel, 39 Or. 161 ( 65 Pac. 520 ). We all have great respect for the opinions of this learned and careful Jurist, but his opinion in the McDaniel case seems to have been based upon the theory that, as the facts which the witness had stated out of court, would have been material if they had been followed by his statements at the trial, the denial of knowledge in relation to such facts by the witness, would be “adverse testimony” and would entitle the party calling the witness to impeach him by contradictory statements in relation thereto, even if the actual testimony of the witness in court was purely negative. For myself, I cannot see how the opinion in the McDaniel case can possibly be reconciled with the rule in the Langford case, the Steeves case, and the case of Yee Grueng, or with the rule so universally adopted in other states.
It is well settled in this state that the party calling a witness vouches for his truthfulness and credibility: Chance v. Graham, 76 Or. 199 ( 148 Pac. 63 ); Sabin v. Kyniston, 81 Or. 358 ( 159 Pac. 69 ).
In this case the facts sought to be proved by the state from the lips of Beggi were that, in the quarrel between the defendant and the deceased, part of which he had witnessed, the defendant had “started the quarrel.” As to this the witness, who was called by the state, testified that “He did not know” as to that. He then testified as follows:
“Q. Do I understand you to say that you do not know who started the quarrel when they started to quarrel?
“A. No. * *
“Q. You remember being in the grand jury room, don’t you?
*719 “A. Yes, sir.
“Q. When this case was being investigated, you remember that time?
“A. Yes, sir.
“Q. And the grand jury and myself being present, didn’t yon, at that time and place in the first part of November, I think it was, make the following statement: ‘All the time they had trouble, yes, sir; I know it, all the time they had trouble, Eosa all the time started it, she started it first, some time Joe run away outside, some time she drink too much.’ ”
To this there was an objection that it was an attempt to impeach the state’s own witness, which objection was overruled by the court and the district attorney was permitted to proceed as follows:
“Q. Didn’t you say that at that time and place!
“A. I think so.
“Q. You think you said that?,
“A. Yes, sir.
“Q. Was it true
“A. I guess so.
“Q. Was it or not true?
“A. Well, that is true.”
I cannot agree that the effect of this testimony was not to impeach the witness, simply because other witnesses were not called for that purpose. Anything which tends to discredit a witness, either on account of his bias, inaccurate memory or untruthfulness, tends to impeach his testimony to that extent. It impeached Beggi, it seems to me, just as fully, to show by his own evidence, that he had made previous inconsistent statements, as it would to have called other witnesses to show the same contradictory statements. It would be the fact that he had made these contradictory statements, and not the manner of proving them, which would impeach the credibility of his testimony.
*720 As to the admissibility of this testimony for the purpose of refreshing the memory of the witness, I agree that under the rule established in this state, the preliminary questions as to his'testimony before the grand jury, with proper safeguards to prevent it being considered by the jury as substantive evidence, and after the proper foundation had been laid, might have been admissible, for'that purpose.
But here there were no safeguards, and from the record I do not think the contradictory statements were offered or received “to refresh the memory.” There was no statement of any such special or preliminary purpose, either by the district attorney or the court. The form of the question was suggestive of impeachment and was the form usually employed for laying the foundation for impeachment by other witnesses.. There was absolutely no foundation for refreshing the memory of the witness. No suggestion that the witness had forgotten, and no attempt to show that his memory of the transaction was fresh at the time of his testimony before the grand jury, which must have been over a month, and probably many months — possibly even years — after these quarrels he had been testifying about. He said he had worked for the Merlos several years — “a few days each year”— and it was during these years that these quarrels occurred.
The only express provision in our statutes for refreshing the memory of a witness at all is in the case of written memoranda, and in such case it is carefully provided that it must be made, “at the time when the fact occurred or immediately thereafter, or at any other time, lohen the fact was fresh in his memory Section 859, L. O. L. •
*721 This rule, I think, is not an arbitrary one, but is taken from the common law, and is based upon centuries of judicial experience and observation. The reason of it is just as applicable to oral statements. Indeed, the reasons for a strict rule are far greater, in the case of oral statements, and the danger to the adverse party far more imminent, for in the case of written memoranda, it does not go before the jury at all (except at the option of the party against whom it is used) and, therefore, there is no risk of the jury giving it substantive consideration, which is always so great a danger to the rights of the adverse party, in the case of oral statements. Such rule ought to be especially applicable, where the alleged statements were made before a secret tribunal like a grand jury, where the proceedings are only known to the district attorney, and the members of the grand jury who are sworn not to disclose the same; and where the defendant had no right to be present, and cannot know by what irregular means or leading or coercive questions the statements were secured.
This question was squarely before the Supreme Court of the United States in Putnam v. United States, 162 U. S. 687 ( 40 L. Ed. 1118 , 16 Sup. Ct. Rep. 923), which was a case on all-fours with this ease. There, a witness called by the government, had been asked:
‘ ‘ Q. Did he ever, at any time, tell you what he had done with these bonds?
“A. Not that I now recollect.”
Thereupon the attorney for the government stated:
“I propose to ask this witness a leading question, because I am taken by surprise at his answer after his testimony before the grand jury, and I wish to ask him if he did not testify to certain things before the grand jury.”
*722 This was allowed over the exception of the defendant, whereupon the witness was asked:
“Q. # * Do you not recollect that you testified before' the grand jury that when you discovered those bonds were gone, you went to Boston and learned that Mr. Putnam had them, and that he acknowledged to you that he had those bonds on the 3d of August? Did you not so testify before the grand jury?
“A. If it is a matter of record I suppose it is so. * *
“Q. I am asking if you did not so testify before the grand jury?
“A. If it is a matter of record, I do not dispute the record. # #
“Q. Let me refresh your recollection a little further. Did you testify before the grand jury that you said to him something about the bond, and he said, ‘Mr. Dorr, I will state to you, I am not going away?’
“A. Yes, sir, I did. * *
“ Q. And did he not say, ‘ I will get the bonds for you as soon as I can’?
“A. Yes, I can assent to that.”
The court held this was error, treating the evidence as covered by exactly the same rule, as if it had been a written memorandum, the court in an opinion by Mr. Justice White, now Chief Justice, saying:
“The very essence, however, of the right to thus refresh the memory of the witness, is that the matter used for that purpose be contemporaneous with the occurrences as to which the witness is called upon to testify. Indeed, the rule which allows a witness to refresh his memory by writings or memoranda, is founded solely on the reason that the law presupposes that the matters used for the purpose were reduced to writing so shortly after the occurrence, when the facts were fresh in the mind of the witness that he can, with safety, be allowed to recur to them in order to remove any weakening of the memory. * * It is well settled that memorandum are inadmissible to refresh the *723 memory of a witness unless reduced to writing at or shortly after the. time of the transaction and while it must have been fresh in his memory.”
See, also, Commonwealth v. Bavarian Bluing Co., 26 Ky. Law Rep. 121 ( 80 S. W. 772 ); Commonwealth v. Welsh, 70 Mass. (4 Gray) 535 ; Commonwealth v. Blood, 77 Mass. (11 Gray) 74 .
It seems to me that this is the true rule, and is in entire harmony with the rule established by our statute, and by the common law, where the attempted refreshment of memory is by a writing.
Here, as we have seen, there was no such foundation — no suggestion of a purpose to refresh the memory. The form of the question was suggestive of impeachment. I cannot resist the conclusion, that the evidence was offered and received, as substantive evidence, for the purpose of impeaching the witness, and incidentally getting before the jury in the trial court the evidence given by the witness, before the grand jury, when the defendant was not present. This conclusion seems to me to be further strengthened by the manner in which the district attorney used the evidence after he had compelled the witness to admit that he had made the statements. He did not follow it up by asking, “What do you say now?” or “What is your memory now, after being refreshed, as to who did start the quarrel?” On the contrary, his form of questions was still directed toward impeachment.
“Q. Didn’t you say [that] at that time and place?
“A. I think so.
“Q. Was it true?
“A. I guess so.
“Q. Was it or not true?'
“A. Well, that is true.”
*724 It does not seem to me that.an attorney for either party to a litigation has a right to put a witness on the stand and vouch for his credibility, and then, when the witness does not testify as strongly as he expects, to assume that he is lying, and proceed to get him in a. corner and by impeachment and threats of impeachment, drive and coerce him to testify to things, as to which he now says in court that he has no knowledge; and then defend it on the theory that he had a right to refresh the memory.
The rules of evidence are for the elucidation of truth, but they are also framed to protect the parties and to prevent the poisoning of the mind of the jury by hearsay testimony and declarations out of court. An honest witness (and the district attorney in this case vouched for the honesty of this witness) who is trying to tell the exact truth, may, when confronted with some hasty or inaccurate statement he has previously made, find himself very much embarrassed; and if he is threatened with the disgrace of impeachment, and happens to be ignorant or timid, and unable to explain himself, may, if he is cornered close 'enough by repeated questions, be willing, in sheer desperation, to answer “yes” to any question, if he thinks that answer will relieve him from the distressing situation.
In State v. Steeves, 29 Or. 85 ( 43 Pac. 947 ), it is said, by Mr. Justice Moore, in relation to the introduction of such evidence, that:
“Courts should carefully guard against its abuse, by the party producing the witness.”
I think, where a party desires to ask his own witness about contradictory statements, for the purpose of refreshing his memory, he should lay the proper *725 foundation and state that the evidence is offered for this special purpose; and if he does not, the presumption is that he offers it as substantive evidence, to go .to the jury for the purpose of impeachment, and the adverse party has a right to so assume, and frame his objection upon that ground.
I also think, where the evidence is offered for such purpose, that the examination should stop, as to such statements, when the attention of the witness has been called thereto; and that the party calling him should not be allowed to make such hearsay statements substantive, by attempting to prove that they were true. Having refreshed the memory of the witness, he should then revert back to the original examination, and ask the witness to state the facts as he now remembers them.
In Trammell v. McDade, 29 Tex. 361 , the court says:
“It is difficult to conceive of a more objectionable form of putting a question to a witness, than is present in this case. His previous deposition is set out, * * and the substance of the last interrogatory is to know if the first answers were true according to the recollection of the witness, at the time of giving the first answers, and the witness answers that the answers first given were true, according to his recollection at that time. The deposition was properly excluded. The witness does not'propose to give his recollection at the time of testifying, except by reference to the first deposition, and his belief that his first answers were true when made.”
In short, it seems clear to me that the contradictory statements in this case were offered, received and considered by the jury, for the purpose of impeachment and as substantive evidence, which was improper and prejudicial; and that the claim now, that they were *726 admissible to “refresh the memory,” is a mere afterthought and cover for the real purpose.
In such a case the language of Judge Thayer in the Langford case is particularly applicable:
“The Code certainly did not intend.to permit a party to get in testimony, as a make weight in support of his cause' of action or defense, by such a course.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6906712. Public record. Not legal advice.