The opinion
*606 TOOZE, J.,
dissenting.
I dissent from the majority opinion, but for one reason only. I cannot subscribe to the application of Art. VII, § 3, of the Oregon Constitution being made by the majority in its opinion.
The only affirmative defense offered by defendant in this case is that he repaid the money to the treasurer of the water district and obtained the treasurer’s receipt for such repayment. He admitted that he had received the money. The state attacked the receipt as being a forged document, and the error committed on the trial, error that is conceded by the majority, related directly to this alleged forgery. It is manifest, therefore, that the evidence erroneously admitted against defendant touched the very gist of his defense. The improper admission of this evidence was not merely a technical defect in the proceedings as suggested in OES 138.230. To say that error which goes directly to the very substance of the defense is not prejudicial goes much further than I am willing to go in this or any other case; it is presumed to be prejudicial. To say that it is not prejudicial requires a consideration and weighing of all the facts and circumstances of the case, and that evidently is what the majority has done. In a sense, at least, this court is re-trying the facts, and upon a theory of the case different from that presented by the state upon the trial.
As I understand the majority opinion, defendant’s crime was complete when he deposited the $750 in his own personal banking account (the resolution turning the money over to him directed that that be done), and the balance in that account, because of withdrawals, was reduced below that sum. If that is true, then all the allegations of the indictment charging defendant with failing to repay the money on demand, which *607 would constitute larceny under the statute for an alleged violation of which defendant was prosecuted, became mere surplusage and not a necessary part of the crime charged in the indictment. I also am unwilling to subscribe to that theory because, as Justice Rossman so ably demonstrates in his opinion, those allegations are essential elements of the particular crime charged, and it was necessary to prove them to warrant a conviction. Defendant was under a necessity of being prepared to defend against these. Repayment was such a defense. The state in offering its evidence on the trial recognized this necessity. It produced substantial evidence to prove those allegations. The point is, however, that the acknowledged error in this case, which the majority now says was not prejudicial, goes to the very heart of defendant’s defense in answer to those averments. If the theory adopted by the majority in this case is correct, then it is manifest that defendant simply had no defense to the charge against him. He should have thrown up his hands and quit fighting the instant the indictment was returned. According to the theory of the majority, there really was nothing for the jury to pass upon; it had no alternative other than to find defendant guilty.
ORS 138.230 (adopted first in 1864), the statutory predecessor of the language to be found in Art. VII, § 3, Oregon Constitution, which is relied upon by the majority as its authority for affirming the judgment of conviction notwithstanding the error committed on the trial, provides:
“After hearing the appeal, the court [Supreme] shall give judgment, without regard to the decision of questions which were in the discretion of the court below or to technical errors, defects or exceptions which do not affect the substantial rights of the parties.”
*608 I do not think it was the intention of the people in adopting Art. VII, § 3 (the portion thereof involved here), to do other than reaffirm and give constitutional sanction to what had long been the statutory law of this state: OES 138.230, supra. In my opinion, the constitutional provision has reference to the same conditions mentioned in the statute: matters of discretion on the part of the trial court, technical errors, defects, or exceptions. The error in the instant case was neither technical nor a matter involving the exercise of judicial discretion.
Although the construction of Art. VII, § 3, as a whole is not involved here, there is involved the question of what is intended by the clause thereof now being used by the majority. In view of that fact, I cannot overlook this opportunity of expressing my own view that the whole question of what is intended by Art. VII, § 3, should be re-examined upon a proper occasion. In my opinion, Hoag v. Washington-Oregon Corp., 75 Or 588 , 144 P 574 , 147 P 756 , gives an erroneous interpretation to this constitutional provision adopted by the people in 1910. I believe the true interpretation is to be found in the dissenting opinions in that case of former Justices George H. Burnett and Lawrence T. Harris. I do not think the people of this state intended that this court should in actions at law, both civil and criminal, ever re-try, either directly or indirectly, the facts presented to a jury. The first sentence of Art. VII, § 3, expressly denies us that right. In particular, I recoil from the use that is being and has been made of Art. VII, § 3, in cases involving the life or liberty of any person.
The judgment should be reversed and the cause remanded for a new trial.
*609 Harry G. Hoy, of Oceanlake, argued the cause for appellant. With him on the brief was B. Richard Anderson, of Newport.
William T. Hollen, Special Deputy District Attorney, of Newport, argued the cause for respondent. With him on the brief were Robert Y. Thornton, Attorney General for Oregon, Walter W. Foster, District Attorney, of Dallas, and T. R. Adams, Special Deputy District Attorney, of Taft.