State v. Akles , 9 Or. App. 501 ( 1972 )

FOLEY, J.

Defendant was convicted of armed robbery and be appeals asserting four assignments of error. The first three assignments are interrelated and concern the introduction of evidence of defendant’s prior convictions. The fourth assignment, which alleges error because the trial court accepted less than a unanimous jury verdict, was decided adversely to defendant in State v. Gann, 254 Or 549, 463 P2d 570 (1969); Apodaca v. Oregon, 406 US 404, 92 S Ct 1628, 32 L Ed 2d 184 (1972).

Defendant took the stand in his own defense and testified during direct examination that he had been on parole from an armed robbery conviction when the crime for which he was being tried had been committed.^①

When it was time for cross-examination, the district attorney sought to introduce what was denominated the “judgment roll”^② of the 1967 armed robbery conviction and similarly the “judgment roll” of a larceny conviction. The “judgment roll” of the armed robbery conviction included the indictment for armed robbery, the arraignment order and entry of plea of not guilty, the trial order, including the jury verdict, in addition to the record of judgment. The, indictment for the earlier armed robbery alleged that the crime had been committed at knife point, which was in a manner similar to that allegedly employed by defendant in the present ease.^③

Defense counsel objected to evidence of prior convictions as irrelevant and cumulative since the jury already knew that the defendant had been convicted of a crime. The court overruled the objection.

Defendant’s testimony did not foreclose the ■state’s right to impeach him as an adverse witness under OES 45.600 which provides:

“A witness may be impeached by the party against whom he was called, by contradictory evidence or by evidence that his general reputation for truth is bad or that his moral character is such as to render him unworthy of belief; but he may not be impeached by evidence of particular wrongful acts, except that it may be shown by his examination or by the record of the judgment, that he has been convieted of a crime.”

Evidence of the larceny conviction was admissible to prove that defendant had been convicted of more than one crime. State v. Wilson, 182 Or 681, 697, 189 P2d 403 (1948). To the extent that impeachment for armed robbery was cumulative, the introduction of such evidence lay within the discretion of the trial judge.^④

After his first objection had been overruled, defense counsel objected to tbe introduction of any documents other than tbe judgment orders. Tbe entire “judgment roll” of both tbe larceny conviction and tbe armed robbery conviction were admitted into evidence over this objection. Tbe extraneous documents in tbe armed robbery conviction contained evidence of particular wrongful acts, e.g., tbe manner in which the armed robbery bad been committed, contrary to the provisions of ORS 45.600. Their admission was prejudicial and requires reversal. See State v. Bouthillier, 4 Or App 145, 476 P2d 209, 479 P2d 512 (1970), Sup Ct review denied (1971); State v. Capitan, 8 Or App 582, 588, 494 P2d 443, Sup Ct review denied (1972).

After tbe judgment rolls bad been admitted, ■tbe district attorney asked tbe court to read tbe exhibits to tbe jury, and tbe court, without objection by defense counsel, read both judgment orders and in addition told tbe jury that tbe first armed robbery bad been committed at knife point. This inadvertent participation by tbe court in tbe presentation of evidence for tbe prosecution was error.

Reversed and remanded.

① The state made no objection to this testimony. As to the admissibility of such testimony, see State v. Hamilton, 4 Or App 214, 476 P2d 207, 209 (1970), Sup Ct review denied (1971); ORS 45.590.

② The judgment roll is distinguished from the record of the judgment itself. The “judgment roll” by statute formerly consisted of copies of the indictment, demurrer, if any, journal entries of the plea, trial and verdict, as well as the judgment; also any orders affecting the judgment and bill of exceptions. See OCLA 26.1221. In 1959 this statute was repealed and ORS 137.220 enacted in lieu thereof. In the newly enacted statute essentially the same documents which had been the “judgment roll” became the “trial court file.” It is the record of the judgment which is admissible for impeachment purposes. ORS 45.600.

③ There was no attempt to introduce this evidence as proof of modus operandi. See State v. Edwards, 8 Or App 159, 493 P2d 180 (1972), and cases cited therein.

④ We do not interpret Mannix v. Portland Telegram, 144 Or 172, 190-192, 23 P2d 138, 90 ALR 55 (1933), as requiring a different result because in that case the plaintiff was trying to introduce evidence of matters other than the record of judgment.