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18 Or. 423

State v. Gallo

Oregon Supreme Court

Decided February 11, 1890

Oregon Supreme Court · decided 1890-02-11

The defendant was indicted for the crime of grand larceny, and convicted by a jury, and by the court sentenced to the penitentiary, from which judgment he has appealed to this court. There was some conflict in the evidence as to the manner of the commission of the larceny; the prosecuting witness, one Morris Baillon, testifying, in substance, that he met the defendant on the morning of the twenty-seventh day of May, 1889, and went with him to several saloons.

Relies on State v. Saunders · State v. Lurch · Sovern v. Yoran

Good law ✅— No negative treatment on recordhow we know

Decided 1890-02-11

How this case has been cited

Cited by 4 later decisions — most recently September 1922

4 state decisions

101890190019101920decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Strahan, J.

¶1The main question sought to be litigated, by the appellant on this appeal is that the trial court permitted the district attorney to propound to him the foregoing questions on his cross-examination, and that they related to matters not testified to .by him in chief. I am inclined to think that these questions do not fall within the objections successfully urged in State v. Lurch, 12 Or. 102, and State v. Saunders, 14 Or. 302. The defendant had testified that he wagered $100 at the game. Whether he did so was a question for the jury, and if by his cross-examination the State could make it appear that what he did in fact wager was of no value it would tend to contradict him, and I think would be legitimate cross-examination. But however this may be, the state of this record renders the consideration of that question immaterial in this case. The record is silent as to what answers, if any, the defendant made to those questions. In such case I do not think we can infer that he answered the questions, or that he was prejudiced by his answers. We have held several times, where the trial court refused to allow á witness to answer, and the record failed to disclose what answers the witness was expected to give, that no question was presented for review in this court. Kelly v. Highfield, 16 Or. 277; Tucker v. Constable, 16 Or. 409. And for the like reason I think where it is claimed that the court improperly required a witness to answer a question, before we could be called on to review that ruling the substance of the answer ought to appear in the record, so that we might be able to determine whether the appellant was prejudiced by the evidence or not. We cannot presume error. It must affirmatively appear. (2) What Barry testified to was properly in rebuttal of the defendant’s evidence in chief. It was a circumstance somewhat remote, it is true, but its tendency was to connect the defendant with the Confederate currency and the Brazilian note at the very time he was claiming to have wagered $100 with the prosecuting witness.. And his concealment of this money was a fact which the jury might properly consider in cónnec *426tion with the same subject—that is, his betting with the witness. All the facts in connection with this branch of the case were properly for the jury, and are disposed of by the verdict.

¶2There being no error, we cannot do otherwise than affirm the judgment.

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