Opinion
Submitted on briefs at Pendleton May 9, 1929
Affirmed September 17, 1929
From Wasco: FRED W. WILSON, Judge.
For appellant there was a brief over the name of Mr. Frank G. Dick.
For respondent there was a brief over the names of Mr. I.H. Van Winkle, Attorney General, and Mr. Francis V. Galloway, District Attorney.
IN BANC.
Defendant Ince appeals from judgment of conviction of larceny in a dwelling alleging errors in admitting testimony, giving of instruction and refusing direction to jury to return verdict for defendants.
Defendants were indicted charged with the crime of larceny in a dwelling. August Barsch was the prosecuting witness. He lived alone on a homestead about eight miles south of Antelope in Wasco County. On Saturday, the 14th of January, 1928, he drove his team to the town of Antelope and when he returned he found that someone had broken into the lean-to of his residence and stolen therefrom a keg containing about four and one-half gallons of moonshine whisky. Monday night, the 16th of the same month, about 10 o'clock, three men came to his residence after he had retired for the night. These men demanded entrance, stated they were government officers and came to arrest him for manufacturing moonshine. He invited them in and struck a match for the purpose of lighting a lamp when one of the three shot the lamp, bursting it into pieces. One of the men had grabbed him and held him while another bound his hands behind his back. While he was thus bound and held, defendant Ince stepped to plaintiff's bed and took from beneath the pillow thereon the purse belonging to the prosecuting witness containing $4.56. Then without permitting prosecuting witness to dress, notwithstanding there was snow on the ground, the three men took the prosecuting witness with them towards the road distant about 300 yards from the house. While he was thus held and bound two of the men took another keg of moonshine containing four and one-half gallons from said lean-to and rolled it towards the highway. The prosecuting witness then begged them to let him return to his residence to dress himself and to turn out of the barn his horses and other stock because he anticipated that he would be punished for violating the prohibition laws and would be away from his home for some time. After going about 200 yards from the house they permitted him to return. He attended to his chores, went to the road to go with the men, and found that they had disappeared. He then returned to his residence, which consisted of a hut with one room and the lean-to mentioned above built for a woodshed, and lay in bed all day Tuesday. On Wednesday he went to a neighbor's about two and one-half miles distant and reported what had occurred. That neighbor phoned to a party in Antelope, who came and got the prosecuting witness. That night the sheriff of Wasco County went to the prosecuting witness' place, destroyed the mash that remained, took the still to town, arrested the prosecuting witness, who pleaded guilty to the unlawful possession of mash and still and was in jail at the time the instant case was tried. Prosecuting witness testified positively to the identity of the defendant Ince, who alone was convicted and has appealed. The defendant Charles Stratton was acquitted by the jury. Appellant bases his appeal on alleged errors in admitting testimony of facts which might constitute a different crime, in giving an alleged erroneous instruction, and in refusing to give an instruction directing the jury to return a verdict in favor of defendants. AFFIRMED.
A witness in behalf of the state testified that on Saturday afternoon, the day the first keg of moonshine was taken from the premises of the prosecuting witness, he saw both defendants on the highway between Antelope and the prosecuting witness' ranch. The defendants stopped and gave the witness a drink of moonshine whisky. Said witness also testified to having spent the same evening and night at the home of defendant Ince in Shaniko, where more drinking of moonshine was indulged. Another witness was permitted to testify to finding on a vacant lot near the home of defendant Ince in Shaniko a keg which had recently contained moonshine whisky. The keg was positively identified by Barsch. Defendants objected to the admission of that testimony because it tended to prove another and different crime, citing State v. Lockwood, 126 Or. 118, 127 ( 268 P. 1016).
"It is contended that the court erred in permitting one of the arresting officers to testify that he found two flasks of whisky in defendant's automobile at the time of her arrest, and further in receiving in evidence the bottles of liquor. The unlawful possession of intoxicating liquor within this state is a statutory offense; and, as heretofore held by this court in State v. Haynes, 116 Or. 635 ( 242 P. 603), the admission of evidence of the possession of such liquor in a cause wherein such possession constitutes a distinct offense, having no relation to or bearing upon the issues to be determined, will constitute reversible error. * * Treating of the general principles of evidence, our Code provides that collateral questions should be avoided, but that it is within the discretionary power of the court to permit inquiry into a collateral fact `when such fact is directly connected with the question in dispute, and is essential to its proper determination': Or. L., § 725." State v. Lockwood, above.
The evidence adduced regarding the taking of the moonshine from the premises of the prosecuting witness, the possession of moonshine by defendants and the finding of the keg which recently contained moonshine was connected, though somewhat remotely with the crime charged. The prosecuting witness very positively identified Ince as one of the three men who entered his house and as the man who stole his purse. The testimony objected to, while probably of small value, yet is intimately enough connected with the crime admitted to make it admissible under the rule in said Section 725. The court did not err in admitting the testimony.
Our ruling on the admissibility of the testimony objected to by defendants covers also the alleged error predicated on the court's refusal to instruct a verdict for defendants. There was some testimony tending to prove that both defendants were guilty as charged.
The particular instruction objected to by defendant appealing is the following:
"On the other hand, as I have already stated, if you should find that they had a plan but that the plan involved only the taking of moonshine whisky and that that was as far as the agreement went, and that after they got out there, if you find at all that they were there, Ince conceived an additional action not involved in the original plan, to-wit: the taking of the money, and if you should so find that he did take the money, as charged in the indictment, and that Stratton was not a party to the conspiracy or plan, then, as I have said, one would be guilty, and the other not guilty."
Appellant claims that this instruction stressed the conduct of Ince in a special way to direct the jury's attention to him to his prejudice. We do not think that is the effect of the instruction. It correctly states the law since the defendants were jointly charged with the crime. In the bill of exceptions appears instructions requested by defendants. Among others the defendants requested this instruction: If you find that "the stealing and carrying away of money, was committed by them or either of them, and then only the one can be found guilty, that you believe, the evidence shows, beyond a reasonable doubt is guilty." Also this instruction:
"If you are unable to agree as to the guilt or innocence of one of the defendants, and if you find and do agree that the other defendant is not guilty, then and in that event, you should render a verdict as to the one agreed upon, and find him not guilty, even though you disagree as to the guilt or innocence of the other."
The prosecution witness testified positively that defendant Ince took the purse. There was no evidence that the other defendant took the purse. The instruction as given by the learned judge presiding at the trial is substantially the same as instructions requested by defendants. Appellant Ince has not pointed out to the court any error committed at the trial. Judgment is affirmed. AFFIRMED.
BROWN, J., absent.