136 P. 354 | Or. | 1913
Lead Opinion
delivered the opinion of the court.
The charging part of the indictment is in the following words: “The said E. S. J. McAllister, on the 28th day of October, 1912, in the county of Multnomah and the State of Oregon, then and there being, did, then and there, unlawfully and feloniously commit the crime against nature in, upon and with one Roy Kadel, he, the said Roy Kadel, then and there being a male person; said crime against nature being too well under-' stood and too disgusting to be herein more fully set forth,” etc.
Subdivision 6 of Section 1448, L. O. L., requires the act charged as the crime to be clearly and distinctly set forth, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.
All forms of common-law pleadings in criminal actions were abolished by Section 1435, L. O. L.
Section 1439, L. O. L., provides that the manner of stating the act constituting the crime, as set forth in the appendix to the Criminal Code, is sufficient in all
The forms given in the appendix of the Criminal Code are very brief and use no surplus words, and, in cases where no forms are given, the pleader is authorized to follow the models given as nearly as the nature of the case will permit. No form is set forth for the crime against nature, hut a form for rape is set forth on page 1011, L. O. L. Where the person upon whom the rape is committed is above the age of consent, the charging words are that the defendant “forcibly ravished C. D., a woman of the age of 14 years.” It is not necessary to allege that .the defendant “carnally knew” the person ravished. The crime against nature is much like rape as to the manner of its commission.
In the case of Commonwealth v. Dill, 160 Mass. 536 (36 N. E. 472) — a sodomy case — the indictment charged that the defendant did “unlawfully and feloniously commit a certain unnatural and lascivious act, ’ ’ with a person therein named. The Massachusetts statute provided that it should not be necessary to allege a description of the crime in the indictment. Passing upon the sufficiency of the indictment, the court said: “We think the indictment good without reference to Section 2 of the statute. Before the statute, sodomy had long been known as a crime against nature. ’ ’
In People v. Williams, 56 Cal. 647, an information for an attempt to commit the crime against nature, charged that the defendant “did willfully and unlawfully and feloniously make an assault on H. G., with intent to commit in and upon the person of H. G., the infamous crime against nature,” etc. The court held it sufficient, saying: “We have examined the information in this case and consider it good. The acts constituting the offense are stated in ordinary and concise
In McClain’s Criminal Laws, Volume 2, Section 1154, the author says: “An indictment which charges that the defendant did unlawfully and feloniously commit a certain unnatural and lascivious act with a person named, or did feloniously, etc., commit the infamous crime against nature with, etc., is sufficient.” We hold that the indictment is sufficient, although it would be insufficient at common law. The demurrer was properly overruled.
In Giblin v. Jordan, 6 Cal. 418, the court says: ‘ ‘ This case may be a hard one; but it forms no reason why the former decisions should be disregarded. The frequent instances in which courts have relaxed rules to avoid the consequences of cases like this have done more to confuse and complicate the law * * than all other cases put together. A rule once established and firmly adhered to may work apparent hardship in a few cases, but in the end will have been more beneficial than if constantly deviated from.”
In Hogatt v. Bingaman, 7 How. (Miss.) 569, the court says: “It should require very controlling considerations to induce any court to break down a former decision and lay again the foundations of the law. ’ ’
In his work on Bailments, Sir William Jones, commenting on the maxim “that nothing is law that is not reason,” says: “This is a maxim in theory excellent, in practice dangerous; as many rules, true in the abstract, are false in the concrete. For, since the reason of Titius may, and frequently does, differ from the reasoning of Septimins, no man who is not a lawyer would ever know how to advise, unless courts were bound by authority as firmly as pagan deities were supposed to be bound by the decrees of fate.”
In Grignon’s Lessee v. Astor, 2 How. (U. S.) 343 (11 L. Ed. 283), the court says: “We do not deem it necessary now, or hereafter, to retrace the reasons or the authorities on which the decisions of this court in that or the other cases which preceded it rested. They are founded on the oldest and the most sacred of the principles of the common law; time has consecrated them; the courts of the states have followed, and this court has never departed from, them. ’ ’
In Wells on Res Adjudicata and Stare Decisis, Section 596, the author says: “Hence, when once a principle has been fully recognized, it should not be changed, except it is found to he unbearably wrong, or else it is changed or abrogated by the legislature, to whom the correction of errors ought usually to be left as to long-established principles, acted upon as a rule of property. ’ ’
We believe that the rule stated in State v. Clark, 9 Or. 470, is the correct one, and that a doctrine declared by a former decision of this court should not be overruled or departed from, unless the court is satisfied upon subsequent examination of the question that the former case was decided contrary to sound principle.
The case of State v. Start, 65 Or. 178 (132 Pac. 512), was thoroughly considered, and it is directly in point on this question, and a majority of the court find nothing therein contrary to sound principle, and we follow that case, holding, that all evidence received by the court tending to prove that the' defendant had committed
Section 139, L. O. L., provides: “In charging the jury, the court shall state to them all matters of law which it thinks necessary for their information in giving their verdict, but it shall not present the facts of the case,” etc. The opinion of the court stated in the foregoing charge may or may not be true as a fact. It certainly is not a matter of law. The court has no right to state facts to the jury, unless they are of such a nature that the court can properly take judicial notice of them.
The case of Keen v. Keen, 49 Or. 366 (90 Pac. 149, 14 Ann. Cas. 45, .10 L. R. A. (N. S.) 504), was an action by a wife against another woman for damages for alienating her husband’s affection, and at the trial the judg’e inadvertently, passing upon an objection to a question, made the following remarks, in the presence of the jury: “I don’t think it makes any difference in this case. The charge is that she seduced him. My experience has been, my observation has been, that a woman is not liable to be seduced without she contributes a little in some way to the general purposes of the case. ’ ’ There the judge stated the result of his observation in the hearing of the jury, and not as a part of his charge, and it was held to be error. Passing upon the matter the court says: “Our statute com
Thompson, in his work on Charging the Jury, pages 79, 80, says: “Juries — particularly ignorant juries— watch with great eagerness any expression of opinion from the bench, and are very apt to follow it, whether it falls from the lips of the judge as a casual remark. * * Still less will the law permit an expression of his own opinion of the facts of the case, based, not upon the evidence, but upon his own knowledge.”
In this case the trial judge told the jury that he thought a man with normal sexual instincts was not
We do not find it necessary to examine the other points made on the appeal.
For the errors referred to, the judgment of the court below is reversed and a new trial granted, and the cause is remanded to the court below. Reversed.
Dissenting Opinion
delivered the following dissenting opinion.
At the doorway of a consideration of this case, we are confronted by a motion of counsel for defendant to dismiss the appeal and quash the indictment for the reason that Section 2099, L. O. L., under which the indictment was drawn, has been repealed and substituted by an act of the legislature approved January 31,1913. The crime with which defendant is charged was committed during the month of October, 1912. The grand jury returned the indictment December 2, 1912. On February 24, 1913, the trial jury found defendant guilty. The day following judgment was entered. On February 25,1913, the notice of appeal and undertaking were filed.
Section 2099, L. O. L., which was the law extant at the time of the commission of the crime, reads as follows : “If any person shall commit sodomy or the crime against nature, either with mankind or beast, such person, upon conviction thereof shall be punished by imprisonment in the penitentiary not less than one year nor more than five years.” By legislative enactment this section was amended in 1913, becoming effective June 4th of that year, so as to read: “If any person shall commit sodomy or the crime against nature, or any act or practice of sexual perversity, either with mankind or beast, or sustain osculatory relations with the private parts of any man, woman or child, or permit such relations to be sustained with his or her private parts, such person shall upon conviction thereof, be punished by imprisonment in the penitentiary not less than one year nor more than fifteen years ’ ’: Laws 1913, p. 56. From a time antedating the formation of this government the enactment of laws which impose a punishment for acts which were not punishable when committed have been prohibited, and, from a time equally
The trial court is accused of committing error when it advised the jury that Harry Work was not an accomplice of Roy Kadel in the commission of the crime alleged in the indictment. The jurors were told that Roy Kadel was an accomplice of defendant, and that a conviction could not be had upon the uncorroborated testimony of an accomplice, but that his testimony must be supported by some evidence tending to connect defendant with the commission of the offense. The testimony of the witness Harry Work is undisputed, and, in narrative form, is that he met Roy Kadel on one of the busy thoroughfares of Portland, and accompanied him unwittingly to the office of the defendant, where both remained in the reception-room until Kadel was beckoned by defendant to enter his private office; that, growing impatient at the failure of Kadel to return, Work stepped into the hall and knocked on the door leading into defendant’s private office, whereupon defendant opened the door and Work entered and saw Kadel wiping his penis with a handkerchief; that Work ejaculated, “Hello, what is this?” and Kadel replied, “McAllister and I are having a little trade,” which, in
Additional error is predicated upon the refusal of the lower court to direct a verdict of not guilty, for the reason “there is no testimony in the case connecting the defendant with the commission of the crime outside of the testimony of accomplices. ’ ’ This assignment of error necessitates a brief review of the testimony. Boy Kadel, the person with whom the crime was committed, described in detail every repulsive step taken by defendant in the criminal transaction. Supplementing this testimony is the uncontradicted declaration of Harry Work, heretofore mentioned, and which corroborates Kadel in his statements of many of the situations surrounding the commission of the crime. Above all of this, defendant, when sojourning in Boston, Massachusetts, during the early fall of 1912, and prior to the time of the doing of the act alleged in the indictment, wrote, addressed, and mailed to Boy
Grievous complaint is made by defendant of the action of the trial court in permitting evidence to be given conducing to show that defendant had committed the crime against nature with other persons, and, in the court telling the jury “that evidence of other offenses was admitted solely for whatever tendency it may have to show a motive on the part of this defendant for committing the crime with which he is charged by this indictment, and for whatever tendency it may have to show that the defendant was capable of committing the crime charged.” To my mind this suggests the most serious aspect presented on appeal.
The case of State v. Start, 65 Or. 178 (132 Pac. 512), is relied upon by counsel for defendant as conclusive of the law of this case. Start was indicted and convicted of committing the same disgusting crime. An appeal was taken to this court, and the judgment of conviction was reversed for the reason that a majority of this court held that an error was committed by the trial court in admitting evidence to the jury of the commission by the defendant of similar acts of depravity with other persons. I am aware of the large responsibility I assume in disregarding that case, which has never carried conviction to my mind, and unless overruled will remain a fruitful source of embarrassment in administering punishment to those de
The presiding judge was circumspect in admitting the testimony to which objection is made, and told the jury that it could not be considered for the purpose of showing the character of the defendant, or to excite prejudice against him, or be used to corroborate the testimony of Kadel. That a person cannot be convicted of one offense upon the proof that he committed another is a general rule of law that is certainly so old as to have been long laid up among its settled elements, but to this principle of law are several well-recognized exceptions which doubtlessly were in the mind of the trial court when it allowed the jury to receive evidence
Mental capacity or capability must not be confounded with a mere tendency to commit a crime, as the latter is never a probative fact in the proof of the commission of an offense. Evidence of the former element must be restricted to that character of crimes coming under the classification of unnatural or abnormal offenses — crimes which alone can be associated with mental abnormality, superinduced by moral depravity. If the crime under consideration is one that a normal man, induced by natural impulses might commit, no purpose would be accomplished by showing the mental capacity of the offender, as that specie of testimony would simply show a tendency or likelihood to commit the crime, but if the crime is one impossible of conception by a normal man, then the capacity or the capability is relative and in fact evidential. By way of a concrete example: A is on trial for the crime of murder, arson, larceny, etc., crimes which are sup
During tbe delivery of tbe charge to tbe jury the court remarked: “Tbe court thinks that a man with normal sexual instincts is incapable of committing tbe crime, and that it is only a person of abnormal sexual sense that is capable of committing it. So if you are satisfied that one was possessed of this unnatural or abnormal sexual sense, you might infer that be bad a motive, a reason or a force, impelling him to do such an act,” etc. Defendant insists that this expression of the court invaded tbe province of tbe jury, and was prejudicial to defendant. Tbe statute of this state requires tbe court to present to tbe jury “all matters of law wbicb it thinks necessary for their information in giving their verdict, but it shall not present tbe facts of tbe case”: Section 139, L. O. L. When tbe court assumes tbe existence of a disputed fact, it thereby commits an error, but in this case no dispute arose over tbe horrible character of tbe acts, but only as to defendant’s commission of tbe act. Section 729,
For the reasons herein stated I believe no errors were committed by the trial court and that the judgment of conviction should be sustained, and therefore dissent from the opinion of the majority of the court.
Judgment should be affirmed.