State v. Finnigan

Mb. Justice Habbis delivered the opinion of the court. 1-3. The state is in no position to complain of the ruling which permitted the defendants to introduce the findings and order of the County Court. The state alleged in plain terms in the information that it was claiming the personal property as well as the realty; the answering defendants pleaded an adjudication of the County Court which, when proved, would utterly defeat the claim of the state to the personal property; and the state replied by denying that the County Court had made the adjudication. The pleadings raised a clear-cut issue concerning the personal property. Proof that the County Court made the order pleaded in the answers would prevent the personal property from being forfeited to the state (State v. O’Day, 41 Or. 495 (69 Pac, 542); State v. McDonald, 55 Or. 419 (103 Pac. 512, 104 Pac. 967, 106 Pac. 444), and it was therefore competent to prove the order which the County Court made. It is true that the trial court might have considered the oral statement of counsel as a waiver of the claim to the personal property which-the state had made in its pleading; but it is also true that the state did not in unequivocal [543] terms admit the fact to he that the County Court had ordered a distribution of the personal property to persons whom that court had found were the heirs of James McNulty, and, since proof of the fact would establish the claim of the defendants and defeat the claim which the state had solemnly written into its pleadings, it was not prejudicial error for the trial court to permit the defendants to offer evidence of the order which had been made by the County Court: Bannister v. Alderman, 111 Mass. 261. By claiming the personal property, the plaintiff made it necessary for the defendants to plead the order of distribution; the defendants pleaded what it was necessary for them to plead and what they had a right to plead; and, consequently, they were entitled to prove what they had rightfully pleaded, so that, even if the state did make a binding disclaimer, that act did not of its own force necessarily render incompetent that which undeniably would be competent in the absence of a disclaimer. An oral renunciation of the pleaded claim to the personalty might have avoided the need of evidence to show that the plaintiff had no right to the personal property, but it would not necessarily prevent the court from permitting the introduction of evidence to prove that in truth the state had no rightful claim to the personalty. 4, 5. The County Court had authority to distribute the personal property, but it had no jurisdiction to determine the descent of the real property, and the state therefore argues that it was error to receive evidence of the order distributing the personalty because it also mentioned the real property. Even though it be assumed that the order was inadmissible to prove heirship to the real property, it was nevertheless competent to prove ownership of the personal [544] property, and its incompetency for one purpose did •not destroy or even affect its competency for another purpose. An instruction limiting the evidence to the single issue which made it competent would have been proper; and, of course, when evidence is competent for one purpose but incompetent for another, it is error if the court refuses a request to limit the evidence to the purpose for which it is competent: 3 Ency. of Ev. 188. The plaintiff, however, made no such request, and therefore, in the language of Mr. Justice Moore, in Smitson v. Southern Pac. Co., 37 Or. 74, 89 (60 Pac. 907, 913): “No error can well be predicated upon the court’s failure in that respect, in the absence of a request for such instruction”: 3 Ency. of Ev. 190. Moreover, the state is now complaining, not on account of the mere failure of the court to limit the application of the evidence, but because of the admission of the evidence for any purpose. 6. The appellant next contends that the instructions of the court were too broad and “required the State of Oregon to prove that the deceased left no heirs ’ ’; and that the jury should have been required “to find whether the defendants, or some of them, in this proceeding, were the particular heirs of deceased.” An examination of the instructions given by the court will disclose that, when considered in their entirety, they are not open to the objection now being urged by the state. Quoting from the charge to the jury: “So now there is the fact for you to determine: Did James McNulty at the time of his death during the year 1907 die without any heirs ? And, so far as this particular case is concerned, before you can determine he died leaving heirs, you would have to find that some of those parties set up in the answer were his heirs.”' [545] The remaining assignments of error will not he discussed, for the reason that the state does not argue them in its printed brief. The judgment is affirmed. Affirmed. Mr. Chief Justice Moore, Mr. Justice Burnett and Mr. Justice McBride concur.