*1 May Argued 1; 20, 1944 at reversed June Pendleton STATE v. EWING 765) (2d)
(149 P. *3 Before and Justice, Chief Bailey, Ltisk, Belt, and Associate Justices. Hay, Beard appellant. Swan, Vale, of for W. Charles (I. of Baker H. Van Attor- HallocTc, Winkle, Blaine Attorney, ney M. District of Blank, and J. General respondents. City, Canyon brief), for on the J. BRAND, guilty, tried, and sen- found
The defendant charging part upon of which indictment, tenced as follows: “ Ewing on the 15th ‘The said Leland Stanford County day September, A. 1941 the said of D., of Oregon, being, then and there Grant and State unlawfully feloniously and and and there did then against have a certain nature, venereal the order being, L. Miller, human to-wit: W. affair with a being person, and L. Miller a male the said W. said Leland Stanford Ewing, did then and there osculatory private parts with the relations sustain of the and so the Miller,
said said Leland W. Ewing did in manner and form afore- Stanford perpetrate and commit detestable crime said, sodomy, contrary to the statutes such cases against provided, peace made ” Oregon.’ dignity of the State the defendant had demurred to trial, Before ground more than one indictment overruling therein. crime was de- upon which defendant makes the basis his murrer forms *4 appeal. assignment error in this of first BRAND, J. that
The defendant contends indictment charges sodomy, perversion, three distinct crimes: sex oscnlatory relationship. assignment The and is without allegation preliminary the indictment merit. day September that on the 15th the defendant “have a did certain venereal affair with human being” sufficiently allege any et does not cetera, crime only specific charge in our statutes. The listed is portion found in that al be of the indictment which leges (re did and the defendant “then there” ferring place to the time “venereal affair”) osculatory “sustain relations” with L.W. particularly Miller, more set forth. The indict (italics ours) ment so” continues the defendant “in manner and did form aforesaid, commit ** *” sodomy. is crime It clear phrase, “in manner and form aforesaid,” refers specific charge precedes which be cannot charging any construed as other offense. specifically charged Whether the which offense was sodomy comes within common definition law provides: immaterial. The statute any “Sodomy. person sodomy If shall commit any against practice or the act nature, crime or or perversity, of sexual either with mankind or beast, osculatory private sustain or relations parts permit man, child, woman or such private relations to be sustained with his or her parts, person such shall conviction thereof, punished by imprisonment penitentiary be year years.” than nor not less one more than fifteen § L. A. O. C. 23-910. charges
The indictment but one act which is within specific prohibition If the statute. inaccurately sodomy, called the mistake is imma- *5 Start, of in the case Or. However, terial. specific charged the act it held that 178, 132 512, was sodomy definition of in the at bar comes within the case charging sodomy, npon an the defend for, indictment proof upon of acts similar to those ant was convicted at bar. in case by presented The issue the defendant is second by him as follows: stated several crimes
“When the State establishes period limitations, none of which oc- of within indictment, in the the State must curred on elect date upon it stand.” which occurrence will no and that the 'is that election was made It contended assignments required of Five different court none. support foregoing made in contention. error are prosecuting Miller, L. at the witness, was, The W. court in November, 1943, trial in the circuit time of the years age. purpose brevity of For the of we thirteen “prohibited designating employ the term act” shall alleged of defendant of conduct violation supra, alleged § as to 23-910, C. L. A. have been O. defendant W. Miller. The committed prohibited particular forth in the set indictment September have occurred on 1941. The prosecuting however, also that the witness, testified prohibited act in the summer defendant appearing Gulch, it from of 1940 at Shaw the testi- prosecuting mony asked the that defendant witness turkeys. go help him herd to Shaw Gulch The trip, places to the testifies same but July, being instead of He date 1940. prosecuting witness was then nine testifies years age. again prohibited committed at Crescent act was
Camp fall the end of summer of the same in the or near testimony prosecuting year, according that occasion the discloses witness. On forty years time trial was who at the defendant, Boy troop age, acting as scout master of prospective witness, Scouts and that trip permitted go camping on the scout, was *6 boys. prosecuting post The witness testified that at the during the office winter of 1940-41 the defendant in- perform prohibited by him duced the act the stat- upon person ute the of the but that defendant, the perform pro- not, defendant did on that occasion, person prosecuting on hibited act witness. prosecuting The witness testified spring that in the of 1941 he went to the pur- defendant’s ranch for the pose fishing trip of a and that he and the defendant together slept in defendant’s room over the woodshed. slept testified, Witness “We practically the bed and thing happened you.” same that I told concerning The last prosecut- occurrence which the ing witness testified inwas the fall of 1941 at defendant’s ranch. The witness testified that the de- guilty improper fendant was bim conduct with in the way car on the to the ranch prohibited and that again act was upon the prosecuting night witness that in defendant’s room prosecuting over the woodshed. witness testified night that the defendant on the same attempted also sodomy commit him per the crime anum.. These are the circumstances under which the defend- ant contends error was failing committed in require an election between acts. produced any
Before the State evidence of the com- alleged prohibited mission of the first of the acts, objected “any testimony defense to the introduction of any respect type act of the and character laid in the indictment unless the State this and date elects time being charge which has been laid the indict- objection ment.” The of the defense was overruled agreed might and it was between counsel that defense objection have continuous to all of other acts between the defendant and the witness. stage pro- At this of the trial and before in evidence, hibited acts had been shown counsel for the prosecution said: * “* * spe- the indictment While mentions testimony bearing upon
cific date we will have fixing day that date as at or close to that transaction, possible, much as we feel we are not con- proof particular the fact that fined to particular long occurred on that so as it is date, statutory period. rely upon We also within permits develop principle of us to law that transac- occurring prior this character tions of to the date laid in the indictment.” *7 foregoing only is the statement which could,
The imagination, by any be an elec- stretch deemed argument come to the final rebuttal tion until we having prosecution. At that the time, the defense no argument present opportunity to answer, counsel for said: the State “* * * basing We this case on the Miller are
boy in the fall of 1941because that is transaction the * * *” in the indictment. closest one named Unfortunately rights prose- for of the defendant, jury: cution also stated to the * * * “ you you believe, If after have considered testimony and have heard the instructions all of this
J95 you Judge if law, Duncan Honor, of His beyond crime that this doubt reasonable believe boy time at W. this was May years prior that will 13, 1942, to three within be sufficient.” indictment instructions, in its read court, jury jury inform no time the court but at did determining guilt de- or that in innocence they determining limited in fendant were the truth falsity alleged prohibited in the fall of 1941 woodshed, over the room nor did the court limit jury any single alleged pro- the consideration contrary, act. hibited On the the court instructed “* * * jury although the indictment names the day September date 21st as on which the offense important you committed, was such date is not if beyond find a reasonable doubt that such crime was years prior committed within three to the date the * * Again, *.” indictment was filed in- court “* * * charged if structed: the actual act in the in- was committed dictment on date other than laid years prior in the indictment within three to that ** *” proof Again, then that time, sufficient. alleged instructed, the court with reference to admis- * * “* sions the defendant: if the admission was actually made with reference to the crime the indictment, whether that was committed on the 15th day September years or some other date within three prior (The time, would be sufficient.” in- “prior May struction was corrected to read, returned.”) the date the indictment The instructions contain no reference to, or ex- planation testimony concerning of, the offenses committed witness, nor- *8 jurors any way in the in limited their considera- were exceptions of evidence. taken tion of effect such sufficiently present concerning the issue election be- acts for this are tween consideration of court. We of the opinion that error the failure of the was require specific prior at court to election some time argument prosecution the final rebuttal of and erroneously of the instructions the court failed jury necessary upon impose the limitations and permit alleged fact, them to consider did, charged prohibited being acts in the indict- entirely possible As a it is result, ment. some jurors may guilty have found defendant one upon prohibited acts, while others relied some alleged act. and different other presented by The third issue is defendant by him as stated follows: competent prove for
“It was not the State criminal acts between the similar defendant other and W. Miller.” support assignments are of error asserted Six It is that other acts between the de- issue. true this prosecuting should and witness not be fendant it is made clear which in evidence unless shown relied for acts is the one conviction purpose effect the other acts and unless properly not it is true as but asserted in limited, is incompetent prove for III that it the State issue acts between the similar criminal prosecution par- In a for a witness. tending offense, to show defendant ticular guilty offense disconnected of another distinct inadmissible. v. Willson, crime A. L. R. 230 P. 84; 113 Or.
497
(2d)
However, if
Gillis,
232,
v.
154
P.
679.
State
Or.
59
prove
of a collateral
the crime
crime tends
charged
general
rnle
ex
indictment,
application,
rele
clusion has no
and evidence which is
merely be
vant to the issue is not made inadmissible
prove
it tends to
commission of another crime.
cause
Bailey,
P.
642,
v.
90
627 at
178
201. The
State
Or.
specific
general
exceptions to the
rule of exclusion have
opinions
frequently
set forth
our earlier
and
supra.
will not be
here.
v. Gillis,
reviewed
State
We
only
recognized exception
are concerned
with the well
exclusionary
rule which holds that
“when
prisoner
charged
is
form of illicit sexual inter
course, evidence of the commission of similar crimes
by
parties
prove
the same
an
is admissible
inclina
put upon
tion to commit the act for which the accused is
supra.
Gillis,
his trial.”
v.
State
permits
exception
which
evidence of
of
other
parties
expressly recog
fenses between the same
is
nized in
65 Or.
Start,
178, 132
State
L. A.
512, 46 R.
(N. S.)
(sodomy);
Hardin,
266
State v.
This issue requires assignments of further error review speaking examination, On his direct the evidence. approximate of his arrest, of an occasion at the time “They had accused me and defendant testified: boys, say they had I would six or named over several him counsel then admonished to “confine seven.” His testimony entirely your to the matter of W. Miller.” Upon cross-examination of following transpired: prosecution, the your direct “Q. You said examination that Bryan *10 Mr. or Mr. or men, these either Church boys; had six or is that mentioned seven Sheriff correct? yes. that,
“A. There mention of Avas boys mentioned?” “Q. What were objection interposed question, an To this by the court defense, was overruled “because but to that on direct examination.” witness testified The “I don’t remember answered, then the names defendant boys.” Upon examination, defendant was asked direct guilty had of misconduct W. with whether he driving automobile, which the Miller while I evidence; “I heard that don’t answered, defendant ’’ doing why thing. any I such a should be reason know prosecution Upon referred cross-examination foregoing testimony asked and the defendant was any by saying, “I know don’t reason he meant what thing.” a this the why such To I have done should my I I mean “What did mean? ansivered, defendant attempt I such makeup would not a nature that is thing.” thing doing The cross- such a or think about examination continued as follows: things you attempted such or done “Q. ever Have boy? being Lytle: Object
“Mr. immaterial. to that Objection is overruled; will be it “The Court: general nature. “A. “ I haven’t. No, you ? Do Thomas Lennon
Q. know “A. sir. Yes, you attempted anything Have to do
“Q. of that kind with done
him?” question, objected To the last the defendant and the court ruled:
“My go is cannot notion that this to the extent of showing a crime but to show the motive and con- proper dition of mind of the defendant Cross Examination. light “I think the in the Direct competent. objection
Examination is The will be exception overruled allowed.” question concerning improper conduct with repeated Thomas Lennon was then and the *11 “Never.” answered,
In the course of the continued cross-examination, concerning purported was the defendant asked mis- genitals boys conduct to relative the of three other specifically who were named. The defendant denied boys misconduct in the case of each four named. rested, After defense had the the State rebuttal boy concerning called the Lennon and asked him con- previous upon a duct of the defendant occasion. Coun- appropriate objection. sel for the defendant made 500 prosecutor court that assured the the a
offered would not indicate
commission of
crime
the court overruled the ob-
assurance,
that
jection. The
that
witness then testified
the defendant
previous
attempted
had
occasion
take
on
to
hold of
parts.
repeated objection
private
his
of the de-
Over
prosecution
permitted
by
to show the
fendant,
boys
testimony of
at
three other
that
various times the
guilty
had
similar
conduct.
While
boys
by
named,
not,
state did
the four
introduce
sodomy,
thereby
crime of
it did
intro-
evidence
go
have been sufficient
duce evidence which would
to
charge
jury upon
contributing
a criminal
to the
to
delinquency
111
Stone,
of a minor. State v.
Or. 227,
In v. the rule this Start, State briefly forth in a headnote, is set follows: court against prosecution for “In a crime nature, that the defendant has committed same evidence way persons same with other than offense is in the indictment not admissible the one named exception excluding testimony to the rule under the permits testimony, crimes, which such of other cases prove in intercourse, sexual an of illicit exception act, that is commit the since clination to proof crimes of similar between same limited parties.” Start, Or. Headnote (N. S.) L. R. A. 266. argued Mr. Justice McBride persuasive dissent, aIn admissibility de- in favor per- the same crime with had committed fendant asserting held fall case should be sons, general exception of exclusion rule within exception effect that “where crime which indi- unusual means crime is an unusual
501
eating
peculiar
system,
habit or
of other
evidence
may
like offenses committed in a same manner
be
admitted.” This contention was considered and re-
jected in the Start case.
rule of
The
State v. Start was
applied
Wedemeyer,
v.
198,
State
65 Or.
In McAllister, 67 P. 480, State Or. sodomy majority case, the court said of the and dis- senting opinions in the Start case: * *
“* opinions Those examined, with thor- oughness ability, question as to the admissi- bility tending prove of evidence that the defend- against ant had committed the crime nature with persons than other the one named the indictment, majority and the of the court held such evi- opinion dence not admissible, while the minority opposite came conclusion. We do not necessary question deem re-examine that in this hold case. We that the rule declared in that case majority by a of the court should be followed.” supra. v. McAllister, applied The same rule was in State v. Jensen, 70 Or. wherein the defendant was rape. ques- assault with intent to commit If the integra, position res tion were taken Mr. Justice merit McBride would consideration, but the rule ex- cluding against commission of the crime persons firmly nature has been established adhere to it. If we evidence of offenses of persons same character committed with other than one named the indictment inadmissible in sodomy it should cases, follow evidence of offenses of a character is dissimilar likewise inadmissible. Mr. McBride’s dissent basis of Justice is that the act sodomy in manner set forth in the in- unusual and unnatural dictment is so that evidence of nnnsnal man- in the same offense committed same *13 bring case within the estab- should the others ner with exception permits of other of- evidence which lished system. peculiar In so far as habit or fenses to show not with others does disclose of misconduct evidence pro qualify method, it fails tanto to the same unusual exception. under the as admissible first seized the defendant’s testi The State boys mony had named or seven in chief that six against him defendant was accusations in boys. concerning the names His answer asked Certainly not remember. that that he did evidence of bad moral the bars to not down did let evidence of other crimes. The or to extrinsic character charges against denying all him, said, in defendant, why doing I should reason be such “I don’t know thing.” statement, also, was insufficient a That put or to in issue authorize introduc his character Only upon offenses. cross- in other tion evidence “* * # say, my did the defendant examination attempt makeup I a nature that would not is of such doing thing.” thing such a or think about such a the cross-examination Then followed concern boys. ing specific It is not con misconduct with purpose was for cross-examination that the tended credibility. impeaching defendant’s Further that if the its brief concedes more, the State disposition prove a lustful towards offered were support boys general “he, an inference that small crime,” evidence “would therefore, justifies incompetent.” The State be no doubt by to the statement of the reference cross-examination attempt thing not he “would that defendant such thing.” doing In its brief the such think about concerning specific cross-examination claims that and received to rebut “offered misconduct was acts of in his de- offered defendant by fact an affirmative fact think “that defendant did in showing fense” by ” It is things.’ did ‘such because he things’ of ‘such reasoning prosecu- this unique process by con- rules exclusionary to by-pass tion attempted and con- cross-examination cerning of other offenses. extrinsic evidence cerning character an ac of bad against To admit evidence he shall have his already put necessary cused it Underhill, issue. clearly expressly character Hinksman, People 293; 4th Ev., ed., p. § Crim. E. An answer a defendant N. Y. 85 N. 676. *14 in that effect, substance, to the on cross-examination not his that kind of man does character put he is not in but if character had been issue, clearly expressly would not have issue, been en prosecution put other misconduct specific by titled defend prove other in this case. type ant with Our stat persons accused, “when his offering ute that testi provides behalf, a in his own shall be as witness deemed mony a to the to cross- prosecution right to have given all facts which he has examination testified or to his conviction O. C. L. A. acquittal.” tending it is that witness provided may 26-934. be Again, § methods, certain “but not specified by impeached acts” that wrongful for particular except evidence of crime be shown. O. A. may mer conviction C. statute, that this court has said Concerning 4-711. § it * ° “* plainly states law does not of ‘particular wrongful acts,’ ex- permit that the be shown witness has been con- may cept If other particular wrongful victed of crime. acts 504 although may part be witness,
on the
of a
witness
permitted
shown,
are
to be
case,
a defendant
investigation
then it would necessitate
matters with
troduces collateral eases.
is accused and in
which the witness
A defendant witness can
large
at
to other offenses:
not be cross-examined
(98
165);
Pac.
v.
Deal,
v.
The cross-examination which we have referred purpose improper showing for the either bad purpose disproving character, or for the defendant’s things.” think statement that “never of such he would beyond cross-examination When the State went and in *15 rebuttal introduced evidence of four witnesses con- cerning specific acts of misconduct, more serious error committed. was
By fifth issue the his defendant asserts that: no “There was evidence admission or con- by charged fession the defendant of the crime in the indictment.” testimony Guy officer, Police Church, was 9, on December the defendant
discloses that charged rights and that he was advised of his informed ‘ ’’ ‘ sodomy made and that meant, with and what that he specifically Miller in connection statement boy guilty, my and “I am it is all no one to said, fault, blame de- but me.” further testified Church immediately fendant said to he would like secure judge plead get it over with. Here clear was sodomy prosecuting a-confession of with the appears witness act in which relate the indictment. Whether the defendant’s statement alleged referred the act to have been September, previous or to some act, will no doubt be made clear on a second In trial. event, was admissible evidence.
It is contended that error was committed when objection, permitted Wayne over witness court, testify Davis to that the defendant him told that the prosecuting oseulatory had witness, Miller, sustained private parts relations with the of the defendant. This directly related to the relations between the and the witness was admis sible in evidence whether it referred to the September, to an earlier act. Upon principles already enunciated, it is clear 1, that State’s exhibit affidavit Elwin Sullens, concerning misconduct of the defendant with the affiant erroneously received in If evidence. the witness testify Sullens had offered at the trial to matters contained the affidavit, evidence would have Receipt by way inadmissible. affidavit impeachment he, after as a had witness, refused to verify therein, the statements constituted a violation
506 against impeachment matter, on a of rule collateral supra, Start, v. under the rule laid down in State for, persons is collateral of offenses with other and inadmissible.
As his last defendant contends that issue, upon the he not have been convicted uncorrobo should gave accomplice. testimony The court no in of an rated jury L. Miller as to whether was or struction to the W. accomplice. At common law there is re not an was presumption and that children between seven buttable capacity. years age are without criminal of fourteen Am. infant If the witness 27 Jur. 820. possession exercise of sufficient men and was in intelligent possessed tality and an choice make knowledge wrong wrongfulness right and of the voluntarily agreed of the act act, accomplice. People Kanngiesser, an v. 44 he be would Reynolds, People App. P. v. 26 345, 186 Cal. 388; Cal. (2d) presump App. (2d) P. 150. In 219, 79 view boy age testimony, and the was for tion, jury L. Miller to determine whether or not W. was accomplice. Carr, P. 389, v. 28 Or. 42 215. In State corroborating evidence concern event, there ing alleged to have offenses been committed with boy, by testimony concerning supported the same by portions admissions of his defendant’s own testimony v. Brazell, on the witness stand. own State Brake, P. v. 99 884; 269 State Or. 195 Or. P. Bateham, 94 Or. 5. State 583; light considered the errors noted in the We have reluctantly compelled and are the entire prejudicial. Exceptions that the errors were conclude duly no there was waiver taken, defendant, were testimony. only conflict Not and there is direct deny charges, all defendant, witness, did the as a having or con- bnt he also denied made the admissions had fessions to which the for testi- witnesses discrepancies fied. There are some other in the testi- *17 mony for the State. necessity
In view it trial, new though neeessary should be said that it not is for the prove State to commission of the on offense the date necessary set forth in the indictment, when several boy acts of misconduct have same proven spe that the elect State should some one practice act cific and occasion. Sound dictates that the election should be made not than close later State’s case in chief and that the court in its instruc tions should differentiate the corroborative acts tend ing disposition to show the inclination lustful toward the witness from the specific placed which reliance is for conviction. judgment court the lower is reversed and the cause remanded for new trial.