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Petition for rehearing denied February 25,1947

ON PETITION FOR REHEARING-

Before Rossman * , Chief Justice, and Lusk, Belt, Bailey and Hay, Justices. HAY, J.

The defendant Moore, contending that, in several *510 particulars, the court’s opinion herein is manifestly erroneous, has petition for a rehearing.

It is insisted that the court erred in stating that the two defense counsel who appeared at the trial represented both defendants, and that they so informed the trial judge.

The record, however, showed clearly that both counsel represented both defendants. The preamble to the transcript of testimony states, “ * * * and the defendants S. D. McClain alias Douglas Day and Roy Moore appearing in person and by their attorneys Edward Sox and John P. Hannon * * Mr. Sox reported “ready” for both defendants by name. Mr. Hannon made an opening statement “on behalf of the defense”. Mr. Sox, answering a query by the trial judge, informed him that he was associated with Mr. Hannon in representing Moore. He had been appointed by the court to represent McClain, and stated that, even before such appointment, he had represented Moore. There can be no question but that both counsel represented both defendants.

It is asserted that the court erred in holding that McClain was a witness for his codefendant Moore. Counsel say that under the law of Oregon (section 26-925, O. C. L. A.), it was impossible for McClain to be called as a witness by his codefendant. That section of the code provides that, when two or more persons are jointly indicted, and the court is of opinion that, in regard to a particular defendant, there is not sufficient evidence to put him on his defense, it must discharge him if requested by a codefendant then on trial, in order that he may be a witness for such codefendant. The gist of the matter is that a defendant is not a competent witness for his codefendant. McClain, in the present case, offered himself volun *511 tarily as a witness. The state might have objected to his competency, but it did not. That he was testifying both for himself and Moore is apparent. He was called as the first defense witness, and his testimony appears in the transcript under the heading “Defendants’ Case”. He was examined in chief, and immediately cross-examined. At the conclusion of his cross-examination, Mr. Sox, one of his counsel, immediately stated to the court: “If the Court please, we now change our plea to ‘guilty’.” McClain then stated that he had never intended to deny the facts.

Even apart from the affirmative showing of the record, it is obvious from the tenor of McClain’s testimony that the major and no doubt the only purpose of putting him on the stand was as a witness for Moore. His testimony served to fortify Moore’s defense of alibi. It sought to eliminate Moore from the burglarious trio and replace him by the mysterious “Benny” (or “any bodie I don’t care hoo”). He testified to matters which had no bearing upon his own defense, but only upon Moore’s. Indeed, he was making no defense for himself, but, on the contrary, admitted his participation in the crime. For example, he said that the purchase of sandwiches and coffee for the gang was made by him, (thereby contradicting the testimony of the waitress that they were purchased by Moore); that he and Mann, having heard it rumored that Moore kept several thousand dollars in his apartment in Portland, broke into the apartment with the intention of stealing this money, but failed to find it, (apparently, this incident was related for the purpose of inviting the jury to infer that there was no close association between McClain and Moore); that he had been acquainted with Moore, off and on, since 1922; and that, after returning to Portland from Brownsville *512 with the proceeds of the Brownsville burglary, he telephoned Moore and asked him if he might leave “something hot”' — some bonds — with Moore for a few days, but that Moore refused.

On being recalled by the state for further cross-examination, his counsel made no objection whatever, notwithstanding the fact that McClain was “out of the case”.

During McClain’s further cross-examination, he testified that Moore could neither read nor write, and thereupon voluntarily apologized to Moore for such statement, saying, “I hate to do that, Roy, but for your benefit I have to do it”.

We are satisfied that our holding, that McClain testified as a witness for both defendants, was well within the mark. In fact, under all the circumstances, it might be argued plausibly that his testimony was intended for Moore’s sole benefit, because, as he had already determined to plead guilty, there was no other imaginable purpose for putting him on the witness-stand at all.

Error is claimed in the court’s holding that the state was entitled to impeach McClain by putting the Hoskins letter in evidence, for the reason that, when the letter was introduced, McClain, having changed his plea to guilty, was no longer on trial. As he had testified as a witness for Moore, however, he was subject to impeachment as any other witness.

The only purpose in the introduction of the Hoskins letter, it is said, was to prejudice the jury against Moore, and it is argued that putting the letter in evidence violated Moore’s constitutional rights to due process, as guaranteed him by the.XIV Amendment to the Constitution of the United States. As we have *513 said, however, the letter was, in onr opinion, admissible in evidence to impeach McClain as Moore’s witness, and its introduction was the only competent and effective means available to the state to counteract the ingenious trial strategy by which the defendant sought to make use of the testimony of a codefendant who intended immediately after testifying, to withdraw from the fray by changing his plea to guilty.

It is suggested that the court erred in not considering testimony which the defense offered in impeachment of the defendant Mann, who had turned state’s evidence. The weight of such impeaching testimony, however, was solely a matter for the jury’s consideration.

The petition for rehearing is denied.

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