Opinion
Argued March 4, 1930
Reversed March 18, 1930
Appeal from Circuit Court, Clatsop County, H.K. ZIMMERMAN, Judge.
Wilford La Jesse was convicted of selling and offering for sale intoxicating liquor, and he appeals.
REVERSED, and new trial directed.
Frank E. Swope of Portland (Powers Swope of Portland on the brief) for appellant.
Frank P. Leinenweber of Astoria (Francis Franciscovich of Astoria on the brief) for the State.
The defendant, Wilford La Jesse, was indicted for the crime of selling and offering for sale intoxicating liquor in Clatsop county, Oregon, said intoxicating liquor being moonshine whisky, and the date of the sale being alleged as the 14th day of January, 1929.
On trial one Elsie Moody was called as a witness and testified that she and another woman, Agnes Lutrell, had an apartment over a filling station and garage occupied by defendant's brother; that one of their purposes in occupying said apartment was to sell soft drinks and intoxicating liquor; that on the 14th day of January, 1929, the defendant brought to the apartment a gallon of moonshine whisky which they purchased at the rate of $6 a gallon; that she paid the defendant $3, which was her share of the purchase price, and that the whisky was retailed out to various customers.
Cora Smith, another witness, testified that on another occasion the defendant brought to Mrs. Lutrell, three one-gallon jugs, but that she did not sample the contents, and did not know what the jugs contained.
The defendant, Wilford La Jesse, testified in his own behalf, and admitted being at the apartment of the two women about the 13th or 14th day of January, 1929, but denied absolutely that he ever sold or gave them any whisky or other intoxicating liquor on the occasion of his visit. On direct examination, among other questions, he was asked the following:
"Q. Did you ever bring any whisky up there, to that apartment above your brother's filling station, in Taylorsville, Mr. LaJesse? A. No, sir.
"Q. You never did. A. No, sir.
"Q. Not at any time? A. No, sir."
On cross-examination, he was asked the following question:
"Q. Then as I understand it, Mr. LaJesse, you never did bring any liquor to that place where the filling station or garage of your brother's was, at Taylorsville? A. No, sir.
"Q. You never did? A. No, sir.
"Q. Did not the deputy sheriff, Antone Christiansen once catch you up there, on or about the 11th day of March, 1928, for possession of liquor? At that time and place, did he not arrest you for possession of liquor, Mr. LaJesse?
"A. He arrested me, but I had no liquor with me.
"Q. But he did arrest you there, then? A. Yes, sir.
"Q. And you say that you had no liquor there with you, at that time? A. No, sir.
"Q. Well, what did you have at that time and place, when the deputy sheriff arrested you, Mr. LaJesse?
"A. Nothing.
"Q. Nothing? A. No, sir, I had nothing."
The state, over the objection of the defendant, then introduced the deputy sheriff, who testified that on the 11th day of March, 1928, he saw the defendant at or near the filling station, and that the defendant then threw a bottle of moonshine whisky into the brush; that he arrested the defendant and found the flask containing the liquor and that it contained moonshine whisky. Concerning the circumstances of the arrest, he testified at some length all over the objection of the defendant.
From a verdict in favor of plaintiff, defendant appeals.
The defendant assigns as error in this case the admission of the testimony of the sheriff, and we think the testimony was inadmissible. There was no testimony by the defendant, in his direct examination, with regard to having whisky on the premises, except that he did not take the whisky to the apartment occupied by Miss Moody and Mrs. Lutrell, and the testimony indicates that it was impossible for Miss Moody to have been occupying the apartment on January 11, 1928, as her testimony shows that she and Mrs. Lutrell had only moved into the apartment on or about the 13th or 14th of March, 1929, ten months subsequent to the date when defendant was alleged by the sheriff to have thrown the flask of whisky into the brush. The testimony had no relation to the particular offense charged here. Its tendency was to indicate a crime, alleged to have been committed nearly a year previous, namely, the possession of a flask of intoxicating liquor. The defendant can not be convicted by testimony showing that nearly a year previous to the offense charged in the indictment he committed another distinct offense against the law, and that such offense was committed in the vicinity of the premises designated in the testimony introduced by the state. A defendant may be cross-examined in relation to any testimony given by him concerning the crime for which he is charged, but this privilege does not extend to evidence of other distinct offenses not in any way connected with the offense for which he is on trial. The testimony, on direct examination, was to the effect that defendant never at any time took intoxicating liquor to the apartment occupied by the two women, and the testimony offered and received in rebuttal only tended to show that nine or ten months previous he was seen at or about the filling station with a bottle of whisky in his possession, a circumstance entirely outside of and not connected with the crime for which he is charged. The testimony in the case, as presented by the state, was confined almost entirely to the testimony of Miss Moody, and the testimony for the defendant was confined principally to a single sale of liquor to her on the 11th day of March. This is a close case and it was error for the state to lug into it evidence of another alleged offense committed several months previously. It was highly prejudicial and tended to confuse the jury and to leave perhaps in their minds the impression that, if the defendant were lawless enough to commit the first offense, he probably was guilty of the second.
The judgment will be reversed and a new trial directed.
COSHOW, C.J., RAND and ROSSMAN, JJ., concur.