Dissenting Opinion.
[102 Pae. 178.]
Dissenting opinion by
Mr. Justice King.I find it impossible, after a careful re-examination into the merits of the above action on petition for rehear*570ing, to agree with my associates in the conclusion reached denying the petition. As reluctant as I am to dissent from the views of the majority, yet, owing to the resultant evil effects that must follow the precedents to be established thereby, I feel it my duty to place on record my dissent from the conclusion announced.
Under the holding of this court in State v. Walton, 50 Or. 142 (91 Pac. 490: 13 L. R. A. (N. S.) 811), the defendant not having entered a plea, no issue was tried, and without an issue I am of the opinion that perjury could not, under any circumstances, be predicated upon false testimony given at such trial, from which it follows that it was error to permit the typewritten copy of the testimony at the former trial to be read in evidence. Section 11, Article I of the Oregon Constitution, guarantees to the accused the right to meet the witness face to face. However, in a case where the court acquires jurisdiction of the cause, and an issue is tried, even though it be for some cause declared a mistrial, for the reasons stated in the main opinion, I think such course is permissible. But, where no issue was before the court, the evidence must necessarily be immaterial, of no binding effect, and the reading of which, in any subsequent proceedings, should not be permitted, except under such circumstances as the admission of any statement not given under oath might be deemed proper. It was held in State v. Lewis, 10 Kan. 157, relied upon, that perjury could be predicated upon false testimony given under such circumstances. This was upon the theory that, if the defendant had been acquitted at a trial without an issue, a plea of former jeopardy could have been pleaded. In the case under consideration we have held, and, I think, wisely, that the plea of former jeopardy was not well taken, and it would have been incumbent upon us to so hold in the event the defendant had been acquitted and again tried after the entry of a plea. The error in the case of State v. Lewis, 10 Kan. 157, evidently *571occurred by erroneously assuming that a plea of former jeopardy, under such circumstances, could have been successfully pleaded. It might also be well to note that Mr. Justice BREWER, who wrote the opinion in State v. Lewis, 10 Kan. 157, also wrote an opinion which was subsequently overruled (as indicated in State v. Walton, 50 Or. 142, 151: 91 Pac. 490: 13 L. R. A. (N.S.) 811), holding that the failure to enter a plea of guilty, or not guilty, was a matter of form, and not of substance (State v. Cassady, 12 Kan. 550), and that his views were not only disapproved by a subsequent decision of that court, but by the Supreme Court of the United States as well (Crain v. U. S., 162 U. S. 625: 16 Sup. Ct. 952: 40 L. Ed. 1097), in which the same eminent jurist, then a member of that court, dissented. His preconceived, but subsequently disapproved, views along these lines doubtless had much to do with the conclusion reached in State v. Lewis, 10 Kan. 157, on this question, the fallacy of which consisted in assuming a premise which had no foundation in law. While I believe that under some circumstances the reading of testimony taken in one trial should be permitted in a retrial of the same cause, I think in the case at bar, where there was no issue, it cannot be said that there was, in law, a trial of any kind, for which reason the testimony complained of was inadmissible. A trial, under such circumstances, is a mere nullity, and any evidence adduced thereat hearsay only. No one will question — in fact it is elementary— that a witness cannot be convicted of perjury for any statements made at a trial, though under oath, where the testimony relates solely to immaterial matters. Now, if there were no issue to try, how can it be said that any statements at the pretended trial were material? If so, material to what? Material to a supposed or imaginary issue? I do not question the statement in the majority opinion that “it would be most unreasonable to require that all proceedings of a court in which a wit*572ness testified falsely should be in strict conformity to law before the witness could be proceeded against for perjury.” This is not a case where testimony was given in a mistrial, and the trial reversed for a mere irregularity, but one where the pretended trial was a nullity. Had it come under that class where a reversible error occurred on account of some irregularity only, the conclusion reached per curiam would be tenable, but that such is not the situation here is conceded, and, when conceded, makes a reversal, on account of the admission of the testimony in the manner complained of, inevitable.
Another important feature disposed of by this court, to which I cannot agree, is in holding that the testimony of Mrs. Butler, although héarsay and inadmissible, constituted a harmless error. The effect of this testimony was to show that the defendant had testified falsely, and whether the feature concerning which the false testimony'may have been given was material or immaterial can make no difference so far as the effect upon the jury is concerned. It is true that some jurors may have taken into consideration the fact that it is immaterial, and did not go to the merits of the controversy, but how are we to determine this fact? Again,- it appears that the usual statutory instruction was given to the effect that a witness, false in one part of his testimony, is to be distrusted in others, and it is not to be presumed that this witness testified upon this point only. In fact, the record discloses that he gave other testimony. Further-. more, no rule is better settled in this State than that, where an error in the trial of a cause is once shown, prejudicial error will be presumed, making it incumbent upon the party relying upon its harmless character to place in the bill of exceptions the data essential to a demonstration of its harmless effect. Carter v. Wakeman, 45 Or. 427, 430 (78 Pac. 362); State v. Reed, 52 Or. 377 (97 Pac. 627). Then, under this instruction of the court, counsel for the State were permitted to *573argue to the jury that the defendant, having made a false statement in one instance, should be distrusted as to all other testimony given by him. To say that this would be harmless error, and not have an effect upon the jury prejudicial to the defendant, is to ignore the common experience of every practitioner at the bar.
It may be that the defendant is guilty, and, if so, his sentence of three years at hard labor, in addition to the same period previously served, is not too severe; but with that we have nothing to do. As stated by Mr. Justice Harlan, in Crain v. U. S., 162 U. S. 625 (16 Sup. Ct. 952: 40 L. Ed. 1097): “The present defendant may be guilty, and may deserve the full punishment imposed upon him by the sentence of the trial court. But it were better that he should escape altogether than that the court should sustain a judgment of conviction of an infamous crime where the record does not clearly show that there was a valid trial.” The experience of centuries has made it incumbent upon the highest civilized countries of the world to recognize, as the basis of every prosecution, that every man is presumed to be innocent until proved guilty, and that he must be so proved in a trial regularly had in the manner provided by law. It is here conceded that this was not done; that the testimony was inadmissible — and I think, beyond question, prejudicial to defendant, from which it must follow that he was precluded from having a fair and impartial trial under the law.
I am therefore of the opinion that the judgment of the lower court should be reversed, and a new trial ordered.