*1 Argued reversed and remanded December November
STATE v. THOMSON 2d 142
278 P. [1] *2 argued appellant. the cause Mark Weatherford Newport, Krause, Leonard L. the briefs were On Thomp- and Weatherford & Conrad, Toledo, Earl P. Albany. son, Attorney County, for Lincoln District Bollen,
T.W. *3 Attorney Deputy for District McMullen, A. and B. argued County, Newport, the cause and filed Lincoln respondent. a brief for
LUSK, J. appealed judgment from a has
The defendant of assault with intent to kill. the crime conviction alleged defendant, on The indictment County day September, in Lincoln “did 1953, tenth feloniously unlawfully and assault and there then striking, beating, by and there then Meuler, James one wounding bruising, said him, Meuler, James and by pipe, then there at and and iron a certain with intentionally driving wilfully place and and said time the said James projecting the automobile and riding passenger, Meuler was as a off of the travelled portion roadway precipice and over and off of a approximately high, 400 feet while the said James Meuler still in was said all with automobile, the intent part on said him, the Richard E. to Thomson, then and there kill the said James Meuler”. assigned
Error to the admission evidence, objection, over the defendant’s of a record of the County for establishing Circuit Court Lincoln on September 15, defendant waived indictment pleaded guilty and charging to an information same offense. The evidence shows that the defendant, through September his counsel, 21, 1953, filed a permission motion for to withdraw his guilty. and to substitute for it a of not The motion supported by was defendant’s affidavit in which he great that, swore in substance while under mental long questioning by peace strain shock and and after signed relating he a written officers, statement to the charge against the contents of him, which he did not he remember but was advised which, his appeared attorneys, a statement that he struck Jim planned kill him, intent to and that he had Meuler with that he did not months; kill him several strike planned kill him intent to and never Meuler with had made no effect; statement him, kill he entered his time he that at the was represented counsel advised of the necessary the crime assault to constitute elements charged, and that he kill as intent to crime. of that September 1953, court entered order On allowing motion. Thereafter the case was sub- *4 grand jury, which, the on November mitted to charging part indictment, the of the 1953, returned and to which the defendant quoted, which we a of not guilty. entered duly the of error by The question presented assignment is of a entered to evidence guilty whether and later by information or indictment leave to enter permission court, in not is evidence guilty, against admissible It on his trial. question defendant is new subsequent in Oregon. rea that,
The state .contends from other apart the evidence was admitted because sons properly in in another was not entered but this in the information to case. But the crime which charged pleaded substantially the defendant in the save indictment, identical crime charged in latter additional means commission think that are and we the reasons which alleged, crime either admission or exclusion would support are as case though this applicable had been to indictment. reads: 136.540, also ORS The state invokes in the defendant, “A confession of a whether or per- judicial private course of proceedings him when be in evidence son, given cannot produced made the influence of fear under it was nor a confession sufficient threats; only is some other proof his conviction without warrant ” committed. been the crime has this not reach does our statute, opinion, passed It the negative question. crime. It accused of persons the protection under made all confessions a command admitted threats, shall fear, produced influence its express attempt beyond does evidence, func- in their traditional the courts control terms to *5 6 determining competency
tion of of evidence. That portion prohibits of the statute which the admission in evidence of confessions made under the influence everywhere country, fear is law this whether provided by (22 or so statute 1425, CJS Criminal 817b); § fact Law holding but this has not deterred from courts plea
that a withdrawn is inadmis- subsequent in evidence sible the accused on his trial. Oregon privilege withdrawing plea
In
a
provided
135.850,
OES
which reads:
any
judgment,
at
“The court
time before
plea
guilty, permit
a
to be withdrawn
of not
and a
substituted therefor.”
in mind that
be borne
It should
statute does not
right,
permission
an absolute
but
confer
to with
the sound discretion
draw
within
of the court.
Wiley, 144
24
251, 253,
v.
Or
P2d 1030, and
State
eases
22
also,
See,
638-644,
cited.
CJS
there
Criminal Law
§
ALR 1445
According
majority
to the modern textwriters the
rule is that the evidence is inadmissible.
It is said
§
420,
in 20 Am Jur
Evidence 481:
“ * * * There is no doubt merit in the con-
yet
of fair-
tention that the
should
admitted,
be
majority
ness and
advantage
rule
justice.
to have
seems
has been said,
As
considerations
permitting
forbid
to fairness
for cause and
withdrawn
ing
at the next moment allow-
having
the fact of the
been made to be
injurious
in evidence
admitted
sequences
with all its
con-
as an admission or confession Am
§481.
accused.” 20
Jur 420,
Evidence
(11th ed)
also, Wharton’s Criminal
See,
Evidence
976
(4th
§
ed)
Underhill’s Criminal
587;
Evidence
548
§
124
annotation
ALR 1527.
277;
Contra, Abbott’s
1102 588. Wigmore
§
Practice (4th ed)
Trial
Criminal
4 Wig-
no
expresses
opinion.
but
subject
to the
refers
66
1067.
(3d ed)
§
Evidence
more
is in-
hold
eases
following
States,
v.
Kercheval
United
220,
274 US
admissible:
Heim v.
United
582
(1927);
L
47 S Ct
ed
71
States,
(one
LRA 1918E 87
(1918)
DC
47
App
States, 48 F2d
Pharr v. United
dissenting);
judge
States,
Jamail
United
(1931);
(CCA 6th)
Ryan,
People v.
82 Cal
(1930);
(CCA 5th)
F2d
*6
People
Street,
v.
Mich
406,
288
121 (1890);
23 P
617,
Anderson,
State v.
Minn
293,
173
926
(1939);
284 NW
Hook,
v.
State
590,
Minn
219
174
(1927);
NW 351
217
Meyers, 99 Mo
State v.
516
107, 12 SW
926
(1928);
NW
State,
v.
Frantz
214,
theOn
People
Steinmetz, 240
v.
NY
148
411,
decisions:
ing
Carta,
State v.
dissenting);
judges
(1925) (two
NE 597
Morrissey
LRA
634 (1916);
A
1916E
411,
79, 96
90 Conn
Powell,
NE2d
124 ALR
411,
v.
23
1522
268,
304 Mass
Bringgold,
v.
State
40 Wash 12,
case);
(civil
(1939)
Weekly,
v.
State
41
Ann
716
(1905);
Cas
132,
P
5
82
dissent-
246 (1952) (two judges
252 P2d
727,
Wash2d
result,
in the
ex-
concurring
while
judges,
two
ing;
dissent on
question) ;
this
agreement
pressed
Nichols,
v.
P2d 469
Kan
207
(1949)
State
167
People
(dictum);
Boyd,
App
v.
67 Cal
292,
Other cases cited the state in of its position, point. we find, examination, to be not Supreme
When Court decided Kercheval v. supra, States, it had United before it State v. Carta People supra, Steinmetz, both in which the opinions majority ably expound the reasons which persuaded the Connecticut and York New courts that question evidence of kind in should received. Summarizing Supreme speak- views, the these Court, ing through Butler, Mr. Justice said: - * “ * * arguments admissibility gleaned be duction from these cases are that the intro-
of the in- shows conduct consistent with the at innocence the trial; claim guilt having statement of the same if effect as out it is court; made received principle permits on the confession in a court to be him accused lower shown *7 higher trial in at his that it is not re- court; extra-judicial and, like an conclusive, ceived as con- fession, is sufficient without other evidence of corpus prior delicti. It is sometimes likened to testimony making the defendant of in favor of the prosecution.” citing
After hold that a cases which plea guilty admissible at the trial the issue plea arising upon guilty, the substituted of not court continued: * * “ * think that We contention sound. guilty purpose plea of
A differs and effect from extrajudicial a mere an confession; admission or jury it is itself a conviction. Like a verdict of a required; it is conclusive. More is not court give nothing judgment to do but has and sentence. just persons Out consideration accused plea guilty are careful that a crime, courts shall accepted voluntarily proper not be unless made after understanding advice and with full of the con- sequences. pleads may When one so he held be Bayaud (C. C.) bound. United States v. 23 Fed. timely application, 721. court But, will plea vacate un- shown have been fairly given ignorance, through obtained or fear application or inadvertence. Such does not in- any question volve or innocence. Com. Crapo, 212 Mass. N. 209, 98 702. The court in E. permit exercise of its discretion will one accused plea to substitute a if for of not a trial have any granting privilege reason the just (citing authorities). seems fair permitting “The effect of the court’s order adjudge was to withdrawal be naught. subsequent held for Its use as against petitioner was in direct conflict determination. When the was annulled it By permitting given ceased be evidence. it to be weight pro the court reinstated it tanto. Heim v. supra, [47 App. C.]. States, United D. The charge. conflict avoided was court’s plea any Giving weight prin- to the withdrawn is in quite ciple prior as inconsistent with order it would be to hold the conclusive. Under the charge, improperly if the found not was ob- required give weight tained, unless if petitioner shown to innocent. And, plea inevitably at all, admissible such must be practical so matter, considered. As it could not putting petitioner be received as evidence without utterly in a dilemma inconsistent with the deter- awarding mination of the him trial. Its introduction turned scale guilty him. ‘ poor of a withdrawal ais *8 may notwithstanding privilege, it withdrawal, its if, guilty.’ of not in evidence under be used supra, [51 Ga.]. It is beside State, White v. by say, court as observed the circuit the mark to any petitioner appeals, than one better that knew guilty and that under the or not he was whether thing. plea of a reasonable weight might suggestions bear These they have no relation to evidence but admissible admissibility plea.” aof withdrawn dissenting People opinion in v. Steinmetz was exposition Judge Lehman. As it is able written opposed to admission of evidence, we of the view guilty, length. that a at He conceded it refer to though certain circum withdrawn, under even logical probative but he said: force, have stances * “ * * Legis- and the evolved, The courts have rules of evidence created, have latures though partic- excluded, are evidences classes of might logical the evidence instances ular probative general appears that when force, any to form is too unreliable basis such evidence unduly tends to confuse or or conclusion, for prejudice production jury, or when its would real or consideration, assumed, some contravene policy.” public urged extended to the accused of the favor that He necessary guilty by implica- withdrawing favor he was to be restored “the includes tion position had never as if the been the same continued: offered”, did not abuse assume must “We granting the favor but held the its discretion justice court was convinced If the even. scales of guilt
beyond question accused of the or doubt the confession the fact and of understanding, reason intention made with permit permission that there fails. When the withdrawal *9 necessarily granted, decides the court is guilt of trial of the shall be an actual the is doubt of whether because there accused, the understanding and intent to made with was actually had a crime the accused confess which protect an to accused The court acts committed. who has May perhaps an untrue made confession. court has decided it should which the confession the upon even evidence, be used as act thereafter not guilt? though of the defendant’s conclusive, not understanding and intention to If made without guilt, not it tend to establish actual does confess understanding guilt. and in- made such If with great logical probative force is its so tention, it playing say almost with words seem would controlling. hy- There is no third it is ground giving pothesis the no for confession lesser ; *' * * spite charge In the trial force. judge tion of presump- accused entitled to the previous the admission of the innocence, of plea, placed the defendant the burden effectviely destroys presump- explanation, the permission plea, favor of withdraw a tion. The which it is not a true claimed is confession, plea may if the withdrawn be used to little value plea. nullify substituted When the the state allows trial should trial, a a the when the fair; man justice that in the interests of decides possible there because would be be withdrawn injustice acting upon danger it, the accused position placed same the as if the should be trial been made. The should be held had never for the determining purpose the sole the purpose determining the and accused, preliminary matter whether the withdrawn understanding For made with intention. practical purposes prior plea admission of guilty in must have the latter effect, of and even places proof the burden of on the accused explaining the confession. The favor of the accused should accorded trap.” be transformed into People supra, Michigan
In Street, court, holding that a mistrial should have been declared prosecutor because the commented on the defendant’s guilty, approval cited with Kercheval said: impossible analyze processes “While say of the human mind, we cannot impressed was not fendant had how it with the statement that de- previously pleaded guilty. No matter great juror might an effort a make not to let prejudice him, the statement was such a nature average that it could not be eradicated from
juror’s judge (citing mind instruction cases). plea, pressed clared.” judge In fact the more the discussed the average juror more im- would be it. A mistrial should have been de- (Italics added.) *10 vigorous dissenting opinion In the of Donworth, J., Weekly, supra, in State v. he said: plea “There is no connection between his guilty and a confession either in or out of court. may plead any guilty A defendant to wish for do one having nothing of several reasons to with his guilt. may spare family He wish to his un- publicity may, favorable for attendant a trial. He private prefer plead guilty to reason, rather past paraded than Ms have before the world. He might fear a trial result in a relative or being charged accessory friend as or in the being charged defendant’s and other with other crimes. These cogent may impel reasons a defendant guilty plead guilty who does believe he is to public a waive trial. Whatever his motive, privilege guilty this is his whether he be or not gmlty. plea guilty When his is withdrawn, it ” wiped nullity purposes. out and a becomes for all generally plea It is held that a entered preliminary hearing at a in admissible evidence on note Crim- CJS, the accused. the trial of in the § cited state’s the cases Some of inal Law 733. distinguished from are to be kind and brief are of that guilty. plea involving In United a withdrawn cases 2d), (CCA it was F2d 497 Adelman, 107 States authority on the defendant, contended judge error committed that the trial case, Kercheval plea admitting defendant’s evidence upon arraignment commis- States before a United distinguished the Kercheval sioner. saying: “ * * * pleaded a had There defendant who ‘guilty’ to an indictment was allowed withdraw to go plea plea to trial on the substituted Ms plea guilty.’ Upon the trial his ‘not withdrawn as an admission.
was received in evidence This was held error. a court allows a When defendant ‘guilty’ it to withdraw court is because exist which it circumstances make fimds it. to hold him to circumstances make Such unfair it equally it use him as an admis- unfair only Kercheval case deals sion. The with leave to substitute a of not guilty. commissioner pleads guilty a defendant When before power who has no to do more than him bail, hold he does withdraw plead tMs in order to the indict- ment. The before the commissioner had not practice have been obtained unfair been held to why might and we see no reason not be received freely any extrajudicial as admission (citing eases).” (Italics added.) *11 recognize argument supporting we While position not without tMnk merit, we the state’s yield paramount to the consideration of fair it must justice the accused. Mr. Rut and As Justice ness justice ledge he of United States said when was Appeals of “re- Columbia, for the District Court 14
ceiving would conclude the case destroy and defendant the effect of the supporting and the evidence it.” Wood United App States, 75 DC ALR 1318, F2d 265. excluding for reasons The evidence have been clarity convincing by such stated with force judges opinions quoted from eminent whose we have purpose attempt that it would serve no us to anything they add to what have written. We hold that admission in evidence of the withdrawn guilty was reversible error. urges though ruling
The that even state prejudicial. of the was, record, erroneous view 174 Or Folkes, In P2d 17, State v. we exam question much care the ined with this court’s au thority judgment in a criminal case to affirm a notwithstanding error committed conviction on the the defendant in that Because case trial. “was con by clusively proven his own confession cor unimpeached by other roborated uncontradicted receipt incompetent held evidence”, we transcripts (unsigned of confessions, which testimony established otherwise wit were nesses) have warranted a would reversal “which under did not circumstances, constitute reversible other 616.) Eegardless (174 might Or what error”. strength prosecution’s to the here as contended conflicting, ques the evidence and the still guilt, whether of defendant’s the crime tion degree charged lesser or of some thereof, was for the by incompetent determine, uninfluenced evi gravity not technical, but one error was dence. sufficiently indicated authorities of which cited. In criminal cases, we have said, we conclusively record shows that the “unless the error
15 not evidence was incompetent admission in the judgment objecting, should party the prejudicial the 44 P 309, 313, 29 Hatcher, Or v. State be reversed.” the record say state of the that that is cannot 584. We before us. briefly notice trial we will another
In
view
assignments
remaining
error. One
of the
some
following
exception
instruction:
the
on an
based
not all of the
instructed
are further
“You
testimony
and admitted must
received
evidence
or
guilt
defendant. The
of the
with
consistent
be
yet
proven
conflicting;
may
facts
testimony
be
may
a verdict
warrant
beyond
doubt
a reasonable
You are
evidence.
circumstantial
if under these rules the
instructed
further
your
beyond
minds
case satisfies
in the
evidence
a reasonable
one of
every
truth of each and
doubt
allegations
charged
of the crime
material
or one
the lesser
in-
indictment
crimes
you
bring in
then
should
a verdict
therein,
cluded
of
guilty.”
the instruction
authorized a
is contended
It
whether
circumstances are con-
verdict
of the
innocence
defendant or
not.
sistent
agree,
nothing
for the instruction means
do We
jury might
find the defendant
than
more
though
conflicting
even
it be
evidence
circumstantial,
on
of the
was satisfied
truth of
provided the
beyond
allegations of the indictment
a rea-
material
Certainly here
no error.
Even in
doubt.
sonable
entirely
depends
the state
circum-
a case where
required
“that all
it is
of the
evidence
stantial
testimony
consistent with
must be
testimony may
conflicting, yet
defendant.
guilty upon
proved
warrant a verdict of
the facts
Dennis,
alone.”
evidence
State
circumstantial
73,Or
P2d
161 P2d
670. This, however,
entirely
is not
a circumstantial
evidence
for there
support
was direct
of all the elements of
alleged
necessary,
crime. Therefore,
proper
give
would not
been
for the court to
sufficiency
the conventional instruction as to the
*13
circumstantial evidence to warrant a conviction. State
v.
170
Nortin,
296, 322,
Or
The other errors are be they fore the court because relate to to instructions exceptions They attempted which no taken. are were to brought by exception be here an denial to the of the motion for a new trial. It defendant’s is too well require authority settled to citation of that such a ruling subject by is not to review court. this More alleged nothing in the over, there is errors in them case, or in the to selves, circumstances this warrant noticing assignments our under Rule 2 of this opinion, are of court. that on however, We another trial be court, would advisable in when by structing party, oral on admissions to omit all ato confession “which reference the court didn’t see give admit”, fit not to also the instruction satisfactory and less “weaker evidence” authorized (7) proper “on all ORS 17.250 occasions”. We find nothing in the evidence which calls for this instruction. Godvig Lopez, 301, 314-321, See v. 185 Or 202 P2d may there cited. It cases be added caution instructing should be exercised so in a criminal lest-by implication proof the burden of be shifted to the defendant. admitting of the de- in evidence error
For the judgment fendant’s withdrawn trial. for a new remanded and the cause reversed concurring. specially ROSSMAN, J., expressed subscribing in at the belief Without opinion quoted in the written the decisions one of least guilty has that when Mr. Justice Lusk I concur evidence”, “it ceased withdrawn been evidentiary opinion. material has Much which in the by the rules of evidence. inadmissible is rendered value Hearsay policy example. rules Various plea of A shaped rules of evidence. evidentiary genuine possess value, but (Powers pleading superseded unlike it, fact that 913), may Bay 263 P2d Co., 200 Or Lumber Coos reckless its consideration to become induce it inadmissible. renders other evidence error occurred when not believe I do nonprejudicial. ruling made was erroneous *14 opinion dissenting Folkes, in 171 Or State See the 17. 150 P2d concurring. specially J., BRAND, matter of case. The in the reversal this I concur sup- submitted the affidavit which forth in set plea permission to withdraw port motion at trial on guilty, taken certain evidence and the court did err demonstrate merits, guilty did permitting the withdrawal prosecution receiving If the in it evidence. err in admissibility nonjudicial and its confession a offered question preliminary to a trial as a submitted showing in this made similar a court excluding ruling confession from evidence being upheld judicial as would be within sound permitting discretion. The decision the court with- considering drawal of the after the evi- presented question a similar dence, amounted, my opinion, to a sound exercise of discretion and to finding which would admis- only sible, all, if at as a confession, was inadmissible trial as such. The should have excluded from guilty. evidence of the unnecessary go I think further in this case question and would leave for future decisions the all whether in cases and under all circumstances evidence of made and withdrawn should or should not be excluded.