State v. Director

On Rehearing.

( 231 Pac. 191 .)

Reversed and Remanded.

PIPES, J.

The judgment in this case was heretofore affirmed: State v. Director, ante, p. 74 ( 227 Pac. 298 ). Two members of the court dissented from that judgment and the court allowed a reargument, which has been had. The case is now before us for reconsideration.

The court in the former opinion decided five questions :

(1) That the variance between the initials of the man charged in the indictment to have been the owner *88 of the burned dwelling-house, and the initials of the man proved to have been the owner, was not a material variance. The indictment gave the name as “A. D. Aden,” while the initials of the owner proved were H. D. Aden.

(2) That there was sufficient evidence “to require the defendant to enter upon his defense and to introduce evidence.”

(3) That it was not error to admit in evidence a written statement by defendant showing defendant’s assets and liabilities, over the sole objection that it was not signed by him.

(4) That the expert evidence of a fireman concerning the origin of the fire was properly admitted.

(5) The language of the court on this question is as follows:

“At the request of counsel for defendant, the trial court instructed the jury to disregard the evidence referred to in defendant’s fourth assignment of error. The direction to the jury was made promptly when and as requested; consequently the assignment presents no question for review by this court.” State v. Director, ante, p. 74, 227 Pac. 298, 301 .

The fourth assignment of error, referred to in the above excerpt, is as follows:

“The court erred in allowing witness Arthur Pullen to testify as to the condition of defendant’s store in Portland—a condition existing 15 or 16 months before the trial of this cause, as shown at pages 234, 235 of the printed testimony.”

Except as to point 5, this opinion will not discuss the points decided in the former opinion.

A re-examination of the bill of exceptions discloses two rulings of the trial court that were reversible errors. One of them is the ruling referred to in the •fourth assignment of error and in the excerpt of the *89 opinion above quoted. Tbe other is the admission of the testimony of E. B. Hasselbrinck in rebuttal, which ruling will receive attention in its order.

To reach a full understanding of assignment No. 4, and of this court’s ruling thereon, we will consider all of Mr. Pullen’s testimony, the objections thereto, and the rulings of the trial court thereon. The record thereof in the bill of exceptions is in full as follows:

“Direct Examination.

“By Mr. Stipp:

“Q. What is your business? A. Assistant fire marshal—fire inspector for the city of Portland.

“Q. What did you say your particular business was in the department? A. Fire marshal, or inspector.

“Q. What do you do in connection with your duties as inspector? A. I go through practically all the business buildings in the city of Portland from Salmon Street to Couch Street, and from the Biver to 10th Street.

“Q. In connection with your duties were you ever in the place or store run by Mr. Director in Portland? A. Yes, sir.

“Q. When were you there last while he had it? A. Well, it was about fifteen or sixteen months ago, something like that.

“Q. Were you in there more than once? A. Yes, sir.

“Q. What attention did you give to his stock of goods when you were in there?

“Mr. Hedges: Objected to on the ground it is .incompetent, irrelevant and immaterial, and not proper rebuttal testimony.

“Court: Objection overruled.

“Mr. Hedges: I save an exception.

“A. In making an inspection of all business places in the city of Portland it is our duty—

“Mr. Hedges: (Interrupting.) -I object to that as not responsive to the question.

*90 “Court: Objection overruled.

“Mr. Hedges: I save an exception.

“Court: An exception is allowed. Gro ahead.

“A. Our duty is to look for fire menaces, waste material, rubbish, or accumulations that will start fire of any description, and in going through his place of business I have found rubbish and accumulations several different times, and he has been notified to clean up.

“Mr. Hedges: We move to strike that out and have the jury instructed to disregard that part of his testimony where he says he was notified several different times.-

“Court: The jury will disregard that.

“Q. How about the stock of goods? A. Well, it was like most little stores along Front Street; it was a cheap class of goods. It was not first-class goods, even in the second class. It was way down below par, I would say. Men that wanted good substantial clothing would not buy that.

“Q. You haven’t any idea, I don’t presume, as to the value of the stock? A. No, sir; only- I would class it as very cheap.

* ‘ Cross-examination.

“By Mr. G-oldstein:-

“Q. Have you the date you were over to that place of business formerly conducted by Mr. Director ? A. No, sir; I haven’t it with me.

“Q. You say it was about fifteen or sixteen months ago? A. As near as I can remember, yes.

‘ ‘ Q. How did you fix that in your memory as being fifteen or sixteen months ago? A. Well, we used to go through these places of business every two months, and now it is every three months.

“Q. Did you go to Wilsonville? A. No, sir.

“Q. You have never been at Wilsonville? A. No, sir.

“Q. Have you been over at Front Street? A. First Street.

“Q. First Street? A. Yes, sir.

*91 ££Q. You happened to look through and see what class of merchandise? A. We look through everything when we go into a place of business. We take in everything, every opening.

££Q. He had clothing? A. Yes, sir.

££Q. You are sure? A. Well, I couldn’t class it clothing myself, because I generally buy good clothing.

££Q. What do you call good clothing? A. (Indicates own clothes.)

££Q. A suit like you have on? A. Yes, sir.

££Q. He didn’t have that class of shirt? A. No, sir; I don’t think so.

“Q. You are sure he had men’s suits, consisting of a coat, pants and vest? A. I could not say what he had.

Q. When you say clothing, what do you mean? A. Anything consists of clothing that you wear. Socks are a part of your clothing. Pants are a part of your clothing.

££Q. That is what you call it? A. Yes, sir.

££Q. Did you see any suits of clothes that people wear, consisting of a coat, trousers and vest? A. Really, I could not answer that, because I didn’t look into details for that.

“Q. You were there for the purpose of looking? A. Yes, sir.

£<Q. But you can’t say now whether he had men’s clothing? A. Yes, I can say he had men’s clothing. Yes, but what kind, only just noticing practically like in all those stores you can go and see on First Street.

££Q. I am asking you what you saw there. That is what I am interested in. Tell us what you saw there. A. Well, he had a general line of clothing.

££Q. A general line of clothing? A. Yes, sir.

££Q. What else did he have? A. He had rubber boots, and coats, and one thing or another—slicker coats, and particularly some shoes, quite a number of shoes on each side.

££Q. Was there anything wrong with the shoes? A. Only a common class of shoes.

££Q. What price were they? A. On an average of from $2.50 up to $5 or $6.

*92 “Q. At the wholesale prices? A. Sale prices, I imagine.

“Q. You imagine that? A. Yes, sir.

“Q. What was the name of the $2.50 shoes? What quality, and what was the name of it?

“Court: Don’t waste time.

“Q. What other things did you find? A. I found quite a bit or rubbish in the back, for one thing.

“Q. Was it packed with rubbish? A. Yes, sir; loose papers and other waste.

“Q. How much of it, approximately? A. Quite a bit.

“Q. You were only in there once? A. I was in there several times.

“Q. How many times were you there? A. Well, now, that is hard for me to say that.

“Q. Were you there more than twice? A. Yes, sir.

“Q. Looking through the entire place? A. Yes, sir; from top to bottom.

“Q. And looked through the quality of merchandise he had? A. Oh, no, sir; we don’t do that. You know better than that.

“Mr. Stipp: Did you see any secondhand stuff? A. Well, I would say maybe some of it that hung in the rear; it looked like secondhand stuff.

“Q. You say you think there was some secondhand stuff? A. I would think so.

“Q. Would you say you saw secondhand merchandise in the store conducted by Samuel Director? A. No, sir; I would not say positively.”

It appears from this record that the trial court did not instruct the jury to disregard the testimony of the witness concerning the “condition of defendant’s store in Portland—a condition existing 15 or 16 months before the trial of this cause, as shown at pages 234, 235 of the printed testimony,” as specifically recited in the assignment. The instruction to the jury to “disregard that” was in response to a specific objection, not to all of the witness’ answer, *93 but to a particular and specific part of it. The language of the objection was to disregard “that part of his testimony where he says he was notified several different times.” It was “that” that was taken from the jury. The rest of the answer remained with the jury, and it was couched in these words:

“Our duty is to look for fire menaces, waste material, rubbish, or accumulations that will start fire of any description, and in going through his place of business I have found rubbish and accumulations several different times. * * ”

It seems too plain for controversy that the jury must have understood that the only part of Pullen’s testimony that they were to disregard was that to which the specific objection was made, and that the ruling of the court made at the instant was a ruling on that objection, and no other.

It will be noticed that the assignment predicates no error upon the part of the witness’ answer that was taken from the jury. That assignment goes to the competency and relevancy of the evidence concerning the condition of the store at Portland fifteen or sixteen months before. But this evidence also went in over the objection of the defendant. The question that elicited the answer of the witness was:

“What attention did you give to his stock of goods when you were in there?”

The objection was:

“Objected to on the ground it is incompetent, irrelevant, and immaterial, and not proper rebuttal testimony. ’ ’

The objection being overruled, an exception was taken. When the witness was proceeding to answer: “In making an inspection of all business places in *94 the city it is our duty—” the defendant objected that the answer was not responsive to the question, but the court held that it was, over objection and exception.

Under such circumstances, the objection to the question on the ground of incompetency, irrelevancy and immateriality, is available to raise the same objections to the answer when given.

We misconceived, in our former opinion, the scope of this objection, the ruling thereon, and what of Pullen’s testimony was taken from the jury. The consequence of that is that this court has not yet passed upon the admissibility of the evidence concerning the condition of the store at Portland.

One ground of the objection was that it was irrelevant. The argument is not without force that the fact that the defendant allowed debris and accumulations that would start fire in his store at Portland sixteen months before had no tendency to prove that he willfully and maliciously set fire to his store at Wilson-ville. The inquiry might still be serious whether the jury would not feel authorized to draw the natural conclusion from the evidence that the defendant was careless in suffering debris and accumulations about the premises, and so to conclude that the carelessness constituted the arson charged.

However that may be, and not deciding these questions, there was another objection to the evidence that admits of no doubt and should have been sustained. It was that it was not proper in rebuttal. If the evidence had any tendency to prove the charge against the defendant, it was a part of the state’s case in chief. This court is thoroughly committed to the rule that in a criminal case it is reversible error for the court to admit evidence in rebuttal which was a part of the state’s case in chief, without *95 reopening the case or good reason shown for separating the case into parts. The first case in which this point was decided is State v. Hunsacker, 16 Or. 497 ( 19 Pac. 605 ). The charge there was larceny of a horse, and the identification of the horse was sought to be proved by the brand. The court said:

“Another error which would also require a reversal was committed by the introduction of the testimony of Joseph Putman, claimed by the district attorney to be in rebuttal. Numerous witnesses, both for the state and the defendant, were called, who described minutely and with particularity the brand on the animal in question, and then after the defendant had rested Joseph Putman was called by the state. The record recites m rebuttal, and he was asked a number of questions as to the appearance of the brands on the horse in dispute by the district attorney, over the objection of the defendant. I think this was improper. The state was bound to exhaust its evidence in chief before the defendant’s witnesses could be heard.

“After the defendant had closed his evidence the state could not re-open the case and give additional evidence to support its case without special leave of the court, obtained for that purpose, which was not done. This evidence was in no sense rebuttal. It was cumulative evidence, tending to support the state’s contention, and ought to have been introduced in chief, and before the state rested. (Hill’s Code, §196, subds. 2, 3.)” 16 Or. 497, 499 ( 19 Pac. 605, 607 ).

That case was cited and the rule announced with still greater emphasis in State v. Minnick, 54 Or. 86, 94 ( 102 Pac. 605, 608 ). The charge there was larceny of two heifers. The evidence complained of was admitted in rebuttal. The rule was thus announced:

“T. B. Johnson was called in rebuttal by the state and, as an expert, testified, generally, as to the apparent age of the calves, their actions, indicating that *96 they had been raised on skim milk, and other circumstances which tended to support the theory of the prosecution in the case. The evidence given by him was in no sense rebuttal, but was a part of the state’s case in chief, and, under such circumstances, it was error to admit-it. [Citing State v. Hunsaker, supra.] "We do not hold that the state may not, in a proper case and by leave of the court, obtained for that purpose, reopen its case and introduce evidence in chief, even, after defendant has rested his case; but this was not done in the case at bar. The record shows that the testimony was offered . simply in rebuttal. No reason was given, or showing made, to explain why it was not offered as 'part of the prosecutor’s case in chief. While in a civil case we would not feel inclined to interfere with the discretion of the court in the order of proof, unless there appeared a clear abuse of such discretion, we think a more strict rule should be invoked in a case where the liberty of a citizen is involved, and that this is not a case that comes under the principle announced by this court in Crosby v. Portland Ry. Co., 53 Or. 496 ( 101 Pac. 204 ).”

Both of the above cases were cited and followed in State v. Evans, 98 Or. 214 ( 192 Pac. 1062 , 193 Pac. 927 ), where, if ever, the question must be held to have been set at rest. The charge was assault and robbery, being armed with a dangerous weapon. The state’s case depended upon whether the prosecuting witness could identify the defendant as the person who assaulted him. Evidence was offered and received in chief, but without defendant’s objection, that the prosecuting witness had identified the defendant in jail at Klamath Palls, and giving in detail the conversation there held. The defendant then testified that he protested his innocence at that interview, and that he had never seen the prosecuting witness before. The sheriff was then called, in pretended rebuttal, who testified over objection that it was not *97 proper rebuttal, that the prosecuting witness had identified the defendant at Klamath Falls as the man who robbed him. Concerning this evidence, the court said:

“ * * It ought not to have been admitted in the first place, although no objection was made to it. It was clearly not rebuttal, and it had the effect of giving the state the last chance to testify in support of its case. In State v. Hunsaker, 16 Or. 497 ( 19 Pac. 605 ), it was held that in a criminal case the state cannot be permitted to withhold a part of its evidence in chief and then introduce it in rebuttal after the defendant has rested his case. Like doctrine is laid down in State v. Minnick, 54 Or. 86 ( 102 Pac. 605 ). In the instant case there was no request for the court to re-open the case, as in State v. Merlo, 92 Or. 678 ( 173 Pac. 317 , 182 Pac. 153 ). In prescribing the order of proceedings on trial, Section 132, L. O. L., indeed says that after the plaintiff has introduced evidence on his part and has concluded, and the defendant has done the same, ‘the parties may then respectively introduce rebutting evidence only, unless the court, for good reasons and in furtherance of justice, permit them to introduce evidence upon the original cause of action, defense or counterclaim. ’ Some good reason should appear for separating the state’s case into parts and giving a portion in chief and another in rebuttal. Permission should not be granted arbitrarily out of hand. The objection should have been sustained on the ground that the testimony was not rebuttal. The evidence as to identification at Klamath Falls should have been rejected.” 98 Or. 214, 234 ( 192 Pac. 1062, 1068 ).

As the court below did not take that evidence from the jury, it was suffered to remain in the case for their consideration, as rebuttal testimony, which, under the three cases quoted, was error.

The other error which we hold is reversible was committed when the court admitted in rebuttal the *98 testimony of E. R. Hasselbrinck, over the specific objection that it was not proper rebuttal testimony. For the better understanding of the point we quote the direct testimony of that witness in full:

“By Mr. Stipp:

“Q. Where do you live? A. Wilsonville, Oregon.

“Q. Are you acquainted with Mr. Director? A. Yes, sir.

“Q. Have you worked in the store out there for him after he took it over? A. I did.

‘ ‘ Q. What work did you do in that connection along about the 1st of January, 1921? A. Well, I was working in the store, waiting on the people, and I helped him inventory that time, and general work.

“Q. Did you assist in taking an inventory at that time? A. Yes, sir.

“Q. Who took the inventory? A. Well, the boy and I worked together. His boy Harry and I worked together. I read them off, and took them out of the shelves, and he put them down.

“Q. How much did the stock in that store inventory at that time? A. Well, I never knew the facts on it. I never knew the figures on it.

“Q. Did you ever inquire? A. Yes, sir; I asked the boy.

“Q. What did he say?

“Mr. Goldstein': Whom did you ask?

“A. Harry Director.

“Mr. Goldstein: I object, to that as being incompetent, irrelevant and immaterial.

“Court: Harry was bookkeeper.

“Mr. Goldstein: Unless defendant was present. Any statement someone else would make would not bind this defendant.

“Court: Objection overruled.

“Q. What did Harry say? A. Well, I asked him two or three times and he would not answer me. He said no one would ever know how much stock they had.

“Q. He told you no one would ever know? A. Yes.

*99 <£Q. How long had you worked in that store? A. Do you mean for Director?

££Q. Yes, and for Mr. Peters, before Mr. Director took it. A. I went to work for Mr. Peters in 1915, and worked there right along every day.

££Q. And Mr. Director, how long did you work for him? A. Do you mean altogether?

££Q. Up to the time you quit? A. I went to work for Director on July 6th, and worked right along.

££Q. How familiar were you with the stock that was in there at the time that Mr. Peters disposed of it to Mr. Director? A. Well, I had been there every day, and knew what there was, six years.

££Q. Do you know what the value of the stock was, the hardware stock and the portion or part of the stock that Mr. Peters sold to Mr. Director ?

“Mr. Hedges: That is objected to as being incompetent, irrelevant and immaterial,- and not proper rebuttal testimony.

“Court: Objection overruled.

“Mr. Hedges: I save an exception.

“ (Reporter reads the question.)

“A. I don’t know the exact value of it. There was no inventory taken.

“Q. Gan you, from your knowledge, put an estimate on the value of the stock? A. The entire hardware?

“Q. Hardware, furniture, paint, and so on?

“Mr. Hedges: The same objection, incompetent, irrelevant and immaterial, and not proper rebuttal.

“Court: The same ruling.

“A. Well, I should guess between seven and eight thousand dollars worth of stock there at that time.

“Q. What time? A. When Director, took the stock over. Is that what you mean?

“Q. Yes. A. Between seven and eight thousand dollars at that time.

“Q. How much was there there on January 1st, 1921, when he took the inventory of that same portion of the stock? A. An estimate of it, do you mean?

“Q. Yes. A. Well, between five and six thousand dollars, I think.

*100 “Q. Of that? A. Yes, sir.

“Q. And what paint, how much? A. Well, ahont $250.00 worth of paint stock at that time.

“Q. Did you see the dry-goods stock? A. Yes, sir.

“Q. How much was there of that? How much was that worth at that time? A. January 1st?

“Q. Yes. A. Well, between ten and twelve hundred dollars, I guess, January 1st. I should judge that.

“Q. And the grocery stock? A. About four hundred dollars, I guess.

“Q. And what was the character of the quilts and blankets? A. Well, they were mostly cotton shoddy. The quilts were marked ‘Cotton shoddy’ right on them.

“Q. Do you know whether that stock was reduced any between the 1st of January and the 24th of May, when the fire occurred? A. Well, he had been selling out right along, at the time I left there anyway.

“Q. What can you say as to how much it had been reduced? A. Between January and May?

“Q. Yes. A. Well, I should say about a thousand dollars, or something like that.

“Q. The hardware line, or all of it together? A. Well, the hardware alone. About a thousand dollars.”

Under the cases cited this was error. But it must be said that there is no assignment of this error in the brief. It must be first determined whether we are permitted in such case to notice the error. That will depend upon the rule of this court governing such cases. Rule 12 ( 100 Or. 749 ), is as follows:

“On the hearing in this court, no questions will be examined or considered at the instance of the appellant, except those going to the jurisdiction of the court, or when the pleading does not state facts sufficient to constitute a cause of action or defense, or those arising upon .the assignments of error as contained in the printed abstract. The court reserves the right in furtherance of justice to notice on its *101 own initiative a plain error of law apparent on the face of the record.”

Buie 6 ( 100 Or. 744 ), provides that in criminal cases a printed abstract may be served and filed or not, as the appellant may elect. And Buie 4 ( 100 Or. 743 ), provides that in criminal cases the appellant shall set out in full in his first brief the errors alleged.

Bules 12, 4 and 6 will be read together, so that the reservation contained in the last sentence of Bule 12 will qualify Buie 4 to the same extent as it qualifies the first provision of Bule 12. This court has applied the first sentence of Bule 12 in innumerable civil eases, and has consistently refused to notice errors not assigned. We do not intend here to relax that rule, where it is applicable. But the last sentence of Bule 12 is as much a part of the rule as the parts that have been so often enforced in civil cases. When the conditions required in this rule exist, the court falls under the coercion of a rule it has itself made to further justice.

The ruling made here and the exception to it are shown explicitly in the bill of exceptions. The ruling is apparent on the face of the record, and it is just as apparent that it was error. Our cases referred to take this error out of the domain of argument.

It will have been noticed that the language of this court concerning testimony in chief allowed in rebuttal is not confined to a construction of the strict letter of the statute. The holdings all are to the effect that the method denounced is essentially unfair. But the record here emphasizes the unfairness in this case. A great part of the testimony on both sides was directed to the question of motive. The value of the property destroyed compared with the insurance on it was a very important issue on the *102 question of motive. The circumstances surrounding the fire in this case greatly needed the help of an adequate motive to sustain the conclusion that the defendant set the fire. The state, recognizing this, called in chief some five or six witnesses, with more or less opportunity of knowledge, whose testimony had a tendency to prove that the stock of goods was worth much less than the insurance and that the defendant was financially embarrassed. The defendant produced more than an equal number of witnesses, including himself, whose testimony tended to show that the stock was worth as much as, or more than, the insurance carried. Then, without reopening the case, or showing any excuse for not calling the witness in chief, the state offered E. E. Hasselbrinck as a witness. He had worked for defendant for some time in the store and had helped take an inventory of the stock, although he did not know the figures. He had worked for the former owner and then right along for defendant. He testified that the stock was worth something over $8,000, which was reduced by $1,000 between January and the night of the fire; the value given by him being something over half the insurance, which was $10,000. This witness had perhaps the best opportunity to estimate the value of the stock of any witness for the state. The case not being reopened, the defendant had no opportunity to meet this evidence. After the warm contest on the question of the value of the stock, to throw this evidence against the defendant under guise of rebuttal testimony might well have turned a wavering doubt in the minds of the jurors of the existence of a motive, and therefore Of the commission of the crime by defendant, into a moral certainty of his guilt. Without the motive of gain, it would be inexplicable that the defendant would burn his store. Letting *103 this evidence in, under the circumstances, was not only clear error, but it was highly prejudicial. The case is within the reason of our Rule 12. We have reserved the right to notice this error on our own initiative, without an assignment, and in furtherance of justice. The error so noticed, being plain and apparent on the face of the record, and leading possibly to an unjust conviction, is ground for reversal.

The very reason of this rule is to leave the court free, in the case of error, beyond debate, to do justice, where for any reason the assignment is omitted.

The judgment appealed from is reversed and a new trial ordered. Reversed and Remanded.