State v. Gardner

O’CONNELL, J.,

dissenting.

The admission of the testimony of Luella Smith showing the forgery, the attempt to pass the check obtained in the burglary, and her conviction did not constitute reversible error. Essentially, the case which the state was required to prove consisted of the identification of the defendant as one of the participants in the burglary. An important element of the state’s proof in so identifying the defendant was the showing that he possessed at least one of the fruits of the burglary—the check. However, it was necessary that the state connect the cheek which defendant was shown to have possessed with those taken in the burglary. The evidence established that the checks taken in the burglary were blank. The cheek introduced into evidence contained writing. The state was entitled to connect the forged check with the blank cheek taken from the safe. That part of the testimony of Luella Smith establishing this connection was admissible. The state went beyond this and brought out the complete story of the crime of forgery for which Luella Smith was convicted and in which defendant participated. It is true that evidence of other crimes is not generally *386admissible. But as State of Oregon v. Long, 195 Or 81, 112, 113, 244 P2d 1033 (1952) points out, “[t]he admissibility of evidence of other offenses is, in its essence, merely a special aspect of the broad general problem of relevancy” and “[i]f evidence of a collateral crime tends to prove the commission of the crime charged in the indictment, the general rule of exclusion has no application.” This has been the consistent view of our cases. See, State v. Langley, 214 Or 445, 315 P2d 560, 323 P2d 301, cert. den., 358 US 826, 79 S Ct 45, 3 L ed2d 66 (1958); State v. Broadhurst, 184 Or 178, 196 P2d 407 (1948); State v. Ewing, 174 Or 487, 149 P2d 765 (1944); State v. Sullivan, 139 Or 640, 11 P2d 1054 (1932).

It should be noted that the evidence elicited from Luella Smith only incidentally tends to prove the commission of another offense by the defendant. Evidence of other offenses is most prejudicial when the state proves other convictions of the defendant with the object of branding him as a bad man. Here, the state did not attempt to prove defendant guilty of the crime of forgery. Indeed, the evidence clearly indicates that he neither filled in the check nor attempted to cash it. It is unrealistic and unwarranted to assume that the jury, on the basis of this testimony, would convict the defendant of the crime of burglary simply because there was evidence that he was a conspirator with Luella Smith in committing the crime of forgery.

The evidence of the defendant’s conduct which constituted his participation in the crime of forgery was relevant in proving the crime with which he was charged. The evidence of Luella Smith’s activities after the check was forged may not have been relevant. However, no objection was made with respect to this evidence and it is well established that failure to object, *387together with no motion to strike, constitutes a waiver or concession of admissibility. State v. Langley, supra; State v. Cunningham, 173 Or 25, 144 P2d 303 (1943); State v. McDaniel, 39 Or 161, 65 P 520 (1901). In any event, I do not believe that the admission of that evidence was so prejudicial to the defendant as to warrant a reversal of the judgment in this case.

Defendant made two objections concerning the evidence in question, both solely on the ground of “general relevancy.” The first was taken at the commencement of the questioning with respect to the conduct of Luella Smith and defendant when they were maldng preparations to cash the check. The second was taken in objecting to the admission of the check into evidence. A part of the evidence was relevant, a part was irrelevant. Defendant’s “general relevancy” objection can receive no more favorable treatment than that accorded the so-called general objection, i.e., an objection advanced on the general grounds that the evidence is irrelevant, incompetent and immaterial. We have repeatedly held that such an objection is not sufficient unless the evidence sought to be admitted is obviously improper. U. S. Nat. Bank v. Guiss et al., 214 Or 563, 331 P2d 865 (1958); Hryciuk v. Robinson, 213 Or 542, 326 P2d 424 (1958); Goldfoot v. Lofgren, 135 Or 533, 296 P 843 (1931). The trial court should have been more specifically apprised of the theory upon which the objection was taken as it related to the testimony elicited. After the testimony was given defendant made no effort to have the testimony stricken. Under these circumstances, I am of the opinion that the admission of the testimony was not reversible error.