State v. Kapsales

Oct 15, 1918

Reporters:: , ,
Before:: Olson

OLSON, J.

Dеfendant bases his appeal on four points. (1) Proof of emission is necessary. (2) Corroboration is necessary, other than the testimony of the person upon whom the crime charged was committed. (3) The evidence was not generally sufficient to sustain a conviction, and (4) the district attorney was guilty of improper conduct in his speech to the jury, sufficient to entitle appellant to a rеversal.

The first point was waived by counsel in argument, as it is ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍statutory law in this state that no such proof is required.

1. As to the second point, our statute requires and all juries are charged, as in this case, that they аre not bound to find in accordance with the testimony of any number of witnesses that does not satisfy their minds аs against a lesser number. The requirement of corroboration is statutory or constitutional, as in the case of treason, custom, or adultery. The only question that could arise here on this point was аs to whether the subject of this crime was an accomplice. The trial court, by an appropriate instruction, submitted to the jury the question as to whether the person complaining of the criminal attack was an accomplice, and, further, that if the jury found from the evidence that he was an accomplice, corroboration of the testimony of the complaining witness must be found before appellant could be convicted. The complaining witness testified that he resisted thе commis*58sion of the act, and the jury having found on this point by their ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍verdict this court will not pursue the subject further.

2. As tо the third point the jury is the sole judge of the facts. The record discloses sufficient evidence to go to the jury.

3, 4. The fourth point involves the alleged misconduct of the district attorney in making improper remarks in his address to the jury. He made some reference to Greeks “bootlegging,” and counsel for appellant objected. The trial court sustained the objections and the district attorney dropped the subject. There is no error in this. The court held with appellant, and surely no error can bе predicated on a ruling of the court stopping alleged improper remarks. Later the distriсt attorney said, “A man who will do this once will do it twice.” This would seem to be merely argumentative, and in answеr to argument of appellant’s attorney, who had argued that the time testified to by witnesses would not have been sufficient ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍for the commission of the offense. The district attorney argued that appellant had probably acquired facility by doing it before, and it would seem to be merely argumentative and not a stating of a fact that the crime had been actually committed by appellant before. The district attorney further referred to glories, of past Greece and her present condition, and inferred that a decline in morals was responsible therefor, and this is complained of аs prejudicial. The record, however, discloses that no exception to these remarks wаs made, by counsel for appellant, and necessarily no ruling was had. This court cannot pass upon error of the lower court where no objection was made and no ruling had: State v. Young, 52 Or. *59227 (96 Pac. 1067, 18 L. R. A. (N. S.) 688); State v. Anderson, 10 Or. 448.

5. Upon instructing the jury thе court cautioned the jury against statements of counsel not supported by the testimony, and told thеm to disregard such statements; and further instructed the jury that race or lack of being a citizen of this cоuntry should not affect their verdict. Counsel for appellant offered no requests for instructions and did nоt except to the instructions given. Thereafter appellant’s counsel filed a motion for а new trial on the ground that inter alia “irregularity in the proceedings of the State of Oregon, in this: that the district attornеy for said county in his argument to the jury during the trial of the said cause, stated that it was his opinion that the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍defendant was guilty and should be convicted,” and annexed an affidavit containing practically the samе words. Tins motion was overruled and defendant contends that this is error. Section 177, L. O. L., provides:

“In all casеs of motion for a new trial, the grounds thereof shall be plainly specified, and no cause of nеw trial not so stated, shall be considered or regarded by the court. “When the motion is made for a сause mentioned in subdivisions 1, 2, 3, or 4 of Section 174, it shall be upon affidavit, setting forth the facts upon which such motion is based. ’ ’

An examination of the evidence shows that both motion and affidavit are conclusiоns drawn from the evidence and not the evidence itself, nor the facts called for by the statute. The particular remarks of the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍district attorney complained of on appeal are nоt specified in the motion, or the affidavit supporting the same. The motion and affidavit are not а compliance with Sections 174 and 177, L. O. L., and the *60motion was properly overruled. This court ,has already held that misconduct of counsel in remarks to the jury not excepted to and upon which the court makes no ruling, is an irregularity and must be presented under Sections 174 and 177, L. O. L., in order to be available on appeal.

The decree of the lower court is affirmed.

Affirmed.

McBride, C. J., and Bean and Johns, JJ., concur.