State v. Keelen

211 P. 924 | Or. | 1922

McBRIDE, C. J.

1-4. We can discover no possible objection to the instructions complained of. They correctly state the law. Dooley, on the face of the indictment and from the fact of conviction, was an accomplice and a confessed one, so that the court had a right as a matter of law to instruct the jury that it should not convict the defendant upon his uncorroborated testimony, and we understand counsel to concede that the instructions are proper so far as they relate to Dooley. The complaint is that the court should have gone further and instructed the jury in regard to the testimony of one Lemberg or Lanburg, who, counsel insist, was also shown to have been an accomplice. For the court to have assuined upon the testimony offered that Lemberg was an accomplice would have been a gross error. If counsel for defendant believed that the testimony tended even in a slight degree to indicate Lemberg’s complicity in the theft, it was their privilege to present a request to the court for an instruction that if the jury believed from the testimony that Lemberg participated in the larceny, if one was committed, it must reject his testimony, unless it was corroborated, etc.

Having failed to do this, they are in no position to say that because the court of its own motion did not so instruct, the perfectly good instruction which was given in respect to Dooley thereby became faulty.

The objection that the court erred in refusing to direct a verdict on the ground that there was not sufficient evidence, is answered by the fact that upon the previous hearing of this case and upon testimony practically the same as that adduced here we held that there was sufficient evidence to take the case to the jury. In the absence of any material variation of the evidence from that adduced on the former trial, our previous holding becomes the law of the case, and, as such, not a subject for discussion on the present hearing.

Defendant complains because the request regarding accomplice testimony was not given as above quoted, but while not given in the exact words requested by counsel it was given substantially in the general charge. That part of the charge given in relation to the value of Dooley’s testimony is as follows:

“A conviction cannot be had on the testimony of an accomplice, unless he is corroborated by such other evidence as connects or tends to connect this defendant with the commission of the crime charged, and such corroboration is not sufficient if it merely shows that the alleged crime was committed; but it must in addition thereto be such corroborating evidence as connects or tends to connect the accused now on trial with the commission of the alleged crime. Therefore, you cannot consider the testimony of C. E. Dooley in this case, unless evidence other than his testimony is such as to your minds corroborates his testimony, and also connects or tends to connect this defendant, who is now on trial, as a guilty participant with the said Dooley in the alleged theft.

“If you find that such other evidence has been produced and given on this trial, and that it corroborates the testimony given by C. E. Dooley, and that it also connects or tends to connect this defendant as a guilty participant in the theft alleged, then and not otherwise you may also .consider the testimony of _ C. E. Dooley for all purposes and give it the weight you deem it entitled to.”

This fully stated the law and went as far as the statute goes, and the defendant could not have been injured by the fact that the court did not reiterate the words “great caution.” Considered in the light of the statute, the request went too far. The statute provides that on proper occasions the court shall instruct the jury that'“the testimony of an accomplice ought to be viewed with distrust,” a very different matter from the requested instruction that the jury should view Dooley’s testimony with “great caution,” and further on, that it should view it with “great care and caution,” substantially that it must put the testimony under the microscope. "When the court told the jury, substantially, that it was not to consider Dooley’s testimony at all, unless it was corroborated, and forcibly reiterates this caution, the defendant got everything he was entitled to.

Defendant’s counsel complain that the court did not give the statutory instruction prescribed in subdivision 4 of Section 868, Or. L., which we have quoted above. The answer is that the defendant did not ask for it hut for something different from it. We have held in the case of State v. Chase, supra, 263, 211 Pac. 920, decided December 19, 1922, that error cannot be predicated upon the failure of the court to give a statutory instruction where there is no request made for it and no exception is taken to the failure of the court to give it.

Complaint is also made that the court erred in the following remark made in the presence of the jury when he overruled defendant’s motion for a directed verdict :

“Of course, Dooley’s testimony must he corroborated and by -circumstances tending to connect this defendant with the act, outside, if there is such testimony, and there is testimony of the circumstances referred to by Lemberg and the sheriff and his deputy, matters that I do not think it is necessary or proper to comment upon.”

It is difficult to see how the judge could have said less, if he was to give any reason whatever for his ruling. The statement was carefully guarded and was not such as necessarily or even probably would attract the attention of the jury. It was correct in point of fact.

In addition to this, out of abundant caution, and although in our judgment the instruction was unnecessary, the court charged the jury as follows:

“I further instruct you, that defendant made a motion at the close of the state’s case, for an order directing an acquittal, and the said motion was overruled by the court. This fact is not to influence you one way or the other in the determination of this case, and you are not to take such fact as any evidence of the guilt or innocence of the defendant. In passing upon said motion, the court simply passed upon a question of law, and any such action of the court, or any remarks in so doing, is not to he taken by you as indicating any opinion by the court as to the facts, or as to what verdict you should return, you being the sole judges of the facts, and the court being the only and sole judge of the law.”

We have treated this objection as though it were regularly here, but it is not. When the court overruled the motion, the mling was excepted to. There was no objection to the remarks of the court made in the course of the ruling.

We have carefully examined the general charge given by the court, which is too long to be repeated here, and find it exceedingly fair to the defendant. It covers every legal request made by defendant, so far as applicable to the case.

Finding no error, the judgment is affirmed.

Affirmed. Rehearing Denied.