Page images

the reasons for making it; and it is an acquittal of the defendant discharged, and a bar to another prosecution for the same crime. [L. 1864; D. Cd. § 209; D. & L. § 164; H. C. § 1363.]

§ 1399. Law of Evidence in Criminal Actions.

The law of evidence in civil actions is also the law of evidence in criminal actions and proceedings, except as otherwise specially provided in this code. [L. 1864; D. Cd. § 210; D. & L. § 165; H. C. § 1364.]

EVIDENCE IN CRIMINAL ACTIONS, GENERALLY.-It is better for courts in criminal actions to adopt the liberal than the rigid or technical rule in the admission of evidence for the defendant, for any error, however slight, in this regard, affecting the defendant's right, is a ground for reversal: State v. O'Neil, 13 Ör. 183, 9 Pac. 284; and, therefore, testimony for the defendant having any possible bearing on his case should not be excluded: State v. Mah Jim, 13 Or. 235, 10 Pac. 306.

The state on a criminal trial need do no more than prove substantially the charge made: Howell v. State, 1 Or. 241. ADMISSIONS AND CONFESSIONS.— See note to § 718, ante, and also note to § 1403, in regard to confessions in criminal actions. RES GESTAE: See note to § 698. PRESUMPTION OF INNOCENCE: note to 788.


§ 1392. ante.

livered of a child a short time before the trial is admissible in connection with evidence that she was under the age of consent at the time of the trial, as tending to prove the corpus delicti: State v. Robinson, 32 Or. 49, 48 Pac. 357.

FLIGHT AS EVIDENCE OF GUILT.— The flight of a person suspected of a crime is a circumstance to be weighed by the jury, as tending in some degree to prove consciousness of guilt: State v. Garrand, 5 Or. 216.

POSSESSION OF STOLEN PROPERTY is merely a circumstance from which guilt may be inferred; it does not raise a presumption of law as to guilt: State v. Hale, 12 Or. 352, 7 Pac. 523.

THE GOOD REPUTATION AND CHARACTER OF DEFENDANT may always be shown in criminal cases, and such proof See must be taken into consideration by the jury, and weighed with the other evidence in the case, in determining the question of guilt or innocence: State v. Garrand, 5 Or. 156; State v. Porter, 32 Or. 158, 49 Pac. 964.

DOUBT: See note to

DYING DECLARATIONS: See note to § 718.

CORPUS DELICTI.-Evidence that the prosecutrix upon a trial for rape was de

As to manner of impeaching character, see note to §§ 853 and 854.

$1400. Defendant May Testify in His Own Behalf.

In the trial of or examination upon all indictments, complaints, information, and other proceedings before any court, magistrate, jury, grand jury, or other tribunal, against persons accused or charged with the commission of crimes or offenses, the person so charged or accused shall, at his own request, but not otherwise, be deemed a competent witness, the credit to be given to his testimony being left solely to the jury, under the instructions of the court, or to the discrimination of the magitsrate, grand jury, or other tribunal before which such testimony may be given: Provided, his waiver of said right shall not create any presumption against him; that such defendant or accused, when offering his testimony as a witness in his own behalf, shall be deemed to have given to the prosecution a right to cross-examination upon all facts to which he has testified, tending to his conviction or acquittal. [L. 1864; D. Cd. § 211; D. & L. § 166; L. 1880, p. 28; H. C. § 1365.]

The failure of the defendant to testify furnishes no inference of guilt or innocence, nor can unfavorable comment be made thereon by counsel, and, if made, and an objection to such action of counsel is overruled, it will be ground for reversal: State v. Anderson, 10 Or. 448.

Where the defendant does not take the witness stand, the court is not required of its own motion to instruct the jury that there is no presumption of guilt from such fact. but if requested so to instruct, it is its duty to do so: State v. Magers, 36 Or. 51, 58 Pac. 892.

This statute strictly confines the right to cross-examine a defendant to the facts testified to in chief, and it is error to require the defendant on cross-examination to write his own name or that of another person. when he has not testified in reference thereto in his direct examination: State v. Lurch, 12 Or. 102, 6 Pac. 411.

A defendant as a witness in his own behalf, can not be asked whether or not he has killed a man some other time, and other questions not testified to in his direct testimony: State v. Saunders, 14 Or. 308, 12 Pac. 441.

The case of State v. Abrams, 11 Or. 169, 8 Pac. 327, holds that when a defendant offers himself as a witness he subjects himself to the ordinary rules of crossexamination.

These three cases last cited are the subject of discussion in State v. Bartmess, 33 Or. 121, 54 Pac. 167, where it is held that the case of State v. Abrams is a little broad in that a defendant may not be interrogated as to any other criminal acts he may have committed, in which respect he differs from other witnesses, but that, when he offers himself as a witness, he may be asked as to statements he has made, as a foundation for impeaching his testimony by contradictory statements, and may be cross-examined as to all matters germane to his testimony in chief. See, also, State v. Gallo, 18 Or. 423, 23 Pac. 264. Where the defendant has undertaken on his direct examination to give a general account of the occurrences preceding the commission of the alleged offense, he may be asked on cross-examination as to de

tails that he does not give: State v.
Weaver, 35 Or. 416, 58 Pac. 109.
The allowing of a question on examina-
tion outside the proper limit, where such
question and answer are immaterial, is
not ground for reversal: State v. Moore,
32 Or. 79, 48 Pac. 468.

The instruction to a jury that the defendant is "permitted" to be a witness in his own behalf, does not express an idea antagonistic to the absolute right which the statute guarantees him in this respect, and is not erroneous: State v. Porter, 32 Or. 156, 49 Pac. 694.

A jury has a right to take into consideration the interest of the defendant in the case, and it is to be the exclusive judge of his credibility, but the jury have no right, because the witness is also the party accused, to disregard his evidence: State v. Clements, 15 Or. 250, 14 Pac. 410.

This section did not remove the disqualification as to codefendants: State v. Drake, 11 Or. 396, 4 Pac. 1204.

§ 1401. When Husband and Wife May Testify for or Against Each Other. In all criminal actions, where the husband is the party accused, the wife shall be a competent witness, and when the wife is the party accused, the husband shall be a competent witness; but neither husband nor wife, in such cases, shall be compelled or, allowed to testify in such case unless by consent of both of them: Provided, that in all cases of personal violence upon either by the other, the injured party, husband or wife, shall be allowed to testify against the other. [L. 1864; D. Cd. § 212; D. & L. § 167; L. 1880, p. 29, § 2; H. C. § 1366.]

The law in regard to husband and wife testifying for or against each other in the criminal code is complete in itself, and the law in that regard applicable to civil actions has no bearing: State v. McGrath, 35 Or. 111, 57 Pac. 321.

Argument by the prosecuting attorney on a prosecution for homicide, allowed over the objection of the accused, to the effect that the failure to call the wife of the accused, who was present at the homicide, was proof of the fact that she would have testified adversely to him if called, con

stitutes reversible error, since the wife can not be compelled to become a witness for her husband, and the record was silent as to whether she had given her consent or not: State v. Hatcher. 29 Or. 309, 44 Pac. 584.

The consent of one spouse to the testimony of the other can not be implied from the fact that the defendant, who is one spouse, has taken the stand in his own behalf, as in civil actions, but such consent must be an active consent: State v. McGrath, 35 Or. 112, 57 Pac. 321.

§ 1402. Evidence in Criminal Actions to be Given Orally, Except.

In a criminal action, the testimony of a witness must be given orally, in the presence of the court and jury, except in the case of a witness whose testimony is taken by deposition, by order of the court in pursuance of the consent of the parties, as provided in sections 1379 to 1385, inclusive, of this code. [L. 1864; D. Cd. § 213; D. & L. § 168; H. C. § 1367.]

The provision of the Oregon Constitution, Art. I, § 4. that in all criminal prosecutions the accused shall have the right to meet the witnesses face to face, does not prohibit the admission of dying declarations, nor

does it apply to such documentary evidence to show collateral facts as would be admissible under the rules of the common law in other cases: State v. Saunders, 14 Or. 300, 12 Pac. 441.

§ 1403. Confession of Defendant, when Evidence, and Its Effect.

A confession of a defendant, whether in the court of judicial proceedings or to a private person, can not be given in evidence against him, when made under the influence of fear produced by threats; nor is a confession. only sufficient to warrant his conviction, without some other proof that the

crime has been committed. [L. 1864; D. Cd. § 214; D. & L. § 169; H. C. § 1368.]

This section has not altered the rule of the common law as to the admissibility of confession induced by the influence of hope applied to the prisoner's mind by the officers of law having him in custody on a charge of crime: State v. Wintzingerode, 9 Or. 153; State v. Moran, 15 Or. 265, 14 Pac. 419.

Where admissions were made to the arresting officer, and it also appears that the officer advised the defendant to make a confession, but it did not appear whether admission was made before or after the advice was given, and the defendant's attorney neglected to question the witness on that subject, the court refused to charge the jury that they should disregard the evidence of the admissions: State v. Leonard. 3 Or. 157.

When a confession has been improperly obtained by an officer from a prisoner in his custody, through fear or hope of reward, a subsequent confession of similar facts made by the prisoner while still in custody upon the same charge, should be excluded, unless facts and circumstances are shown which fairly justify the inference that the influence under which the original confession was obtained has ceased to operate upon the prisoner's mind. Whether such influence has ceased is a question of fact, to be determined by the court below in which the trial is held, and it is only when the record fails to show that any satisfactory evidence was before that court on the question, that the supreme court will disturb its determination: State v. Wintzingerode, 9 Or. 153.

The court is to determine whether or not a confession was made under the influence of hope or fear. This inquiry is preliminary to the admission of evidence, and is addressed entirely to the judge: State v. Moran, 15 Or. 265, 14 Pac. 419.

Where the accused agrees with the district attorney that he will testify fully and freely in a case then pending against K. on a charge for the same killing, and did so testify before the coroner's jury and the grand jury, but during K.'s trial the accused escaped, and K. was acquitted, when the accused was put on trial for the same killing, his confession and former testimony might be given in evidence against him: State v. Moran, 15 Or. 265, 14 Pac. 419.

Statements or declarations of the ac

cused, voluntarily made, of such facts as necessarily involve the commission of a crime, or in themselves constitute a crime, are admissions of guilt, and may be properly denominated "confessions,' nor will they be reduced to the grade of admissions only by exculpatory statements made in the same connection: State v. Porter, 32 Or. 142, 49 Pac. 964.

Involuntary confession can not be used to contradict a witness' statements on the witness stand: State v. Steeves, 29 Or. 105, 43 Pac. 947.

A "confession," in a legal sense, is restricted to an acknowledgment of guilt made by a person after the offense has been committed, and does not apply to the simple statements or declarations of an independent fact from which such guilt may be inferred. Therefore, on a trial for larceny or embezzlement, the books kept by the defendant for his employer, and which he falsified to conceal his stealings, are not "confessions," and need not be corroborated by other evidence to sustain a conviction: State v. Reinhart, 26 Or. 477, 38 Pac. 822.

Where gold dust was intrusted to the possession of another to deliver to a third person in Portland, when the object of the trust would be accomplished, and upon demand of such bailee for the property he promised to deliver it but failed to do so, upon the third demand he denied having received it, and refused to account, held that his admissions were merely corroborative, and that, the fact of conversion having been proved by other testimony, the judgment of conviction was not erroneous: State v. You, 20 Or. 222, 25 Pac. 355.

The words "confession" and "admission" are not synonymous, the latter relating to an acknowledgment of facts, and the former to an acknowledgment of guilt; so that a charge using the word confession, where the evidence merely shows admission of facts from which a conclusion of guilt might under certain instances be drawn, was erroneous: State v. Heidenrich, 29 Or. 381, 45 Pac. 755.

Where the conversations of the defendants are admissible as confessions, the whole conversation relating to that subject may be admitted, although it includes conversation that occurred on a former occasion: State v. Taylor, 3 Or. 10.

$ 1404. Error not Material Unless it Prejudice Substantial Right of Defendant. Neither a departure from the form or mode prescribed by this code, in respect to any pleadings or proceedings, nor any error or mistake therein, renders it invalid, unless it have actually prejudiced the defendant, or tend to his prejudice in respect to a substantial right. [L. 1864; D. Cd. § 215; D. & L. § 170; H. C. § 1369.]

$ 1405. Evidence of Rape or Crime Against Nature.

Proof of actual penetration into the body is sufficient to sustain an indictment for rape or for the crime against nature. [L. 1864; D. Cd. § 216; D. & L. § 171; H. C. § 1370.]

See note to § 1760, post.

$ 1406. Testimony of Accomplice, not Sufficient Unless Corroborated.

A conviction can not be had upon the testimony of an accomplice,

unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime, and the corroboration is not sufficient if it merely show the commission of the crime or the circumstances of the commission. [L. 1864; D. Cd. § 217; D. & L. § 172; H. C. § 1371.]

CORROBORATION OF TESTIMONY OF AN ACCOMPLICE.-A defendant can not be convicted of a criminal offense upon the testimony of an accomplice, unless there is other evidence which, of itself, and without the aid of the testimony of the accomplice, tends in some degree to connect the defendant with the commission of the offense: State v. Odell, 8 Or. 31. Proof that the prisoner was in town at the time of the alleged commission of the crime is not alone sufficient to corroborate the testimony of an accomplice, and to warrant conviction: State v. Odell, 8 Or. 31.

On a prosecution for rape committed on a child under the age of consent, evidence of acts of sexual intercourse between defendant and the prosecutrix, other than the one charged, is admissible for the purpose of corroborating the testimony of the prosecutrix State v. Robinson, 32 Or. 50, 48 Pac. 357.

Testimony that a witness is acquainted with the handwriting of defendant charged with forgery, and recognized the latter's signature, which appears attached to the forgery as that of a witness, to be in his handwriting, sufficiently corroborates an accomplice, and tends to connect the defendant with the commission of the crime charged: State v. Tice, 30 Or. 464, 48 Pac. 367.

Where the testimony shows that defendant and his accomplice were together at or near the place where the larceny of an animal was committed, under circumstances which indicated concert between them in furtherance of a common purpose, it was held, that the evidence tended in some degree to connect the defendant with the commission of the crime: State v. Townsend, 19 Or. 215, 23 Pac. 968.

Admissions and confessions of a woman with whom defendant is charged with having committed adultery are not sufficiently corroborated to sustain a conviction, where

the corroborating evidence goes merely to show that there was an opportunity to commit the act, but does not show an adulterous mind in either party, or any circumstances from which the commission of the act might be inferred: State v. Scott, 28 Or. 335, 42 Pac. 1.

WHO IS AN ACCOMPLICE.-Whether a witness is or is not an accomplice is a question for the court, where the facts in relation thereto are admitted, and no issue thereon is raised by the evidence; but if the evidence is conflicting as to whether a witness is an accomplice, that issue should be submitted to the jury under proper instructions: State v. Carr, 28 Or. 393, 42 Pac. 215.

A mature person of ordinary intelligence, who knowingly offers as a bribe to a juror money provided by another for that purpose, becomes an accomplice within the meaning of this section: State v. Carr, 28 Or. 394, 42 Pac. 215.

In the crime of incest, the party to the crime not on trial is an accomplice: State v. Jarvis, 18 Or. 362, 23 Pac. 251.

In the crime of adultery, the one not on trial is the accomplice of the other: State v. Scott, 28 Or. 335, 42 Pac. 1.

The dealer of a game of stud poker is an accomplice with those who bet at such game: State v. Light, 17 Or. 360, 21 Pac. 132.

In a prosecution for the crime of rape committed on a girl under the age of consent, the girl can not be an accomplice, and a conviction may be had upon her uncorroborated testimony: State v. Knighten, 39 Or. 63, 64 Pac. 866.

A person who did not counsel, aid, or abet, or in any manner participate, in the commission of a crime, and whose only knowledge of the facts was derived from what she saw and heard at her husband's house, he being one of the parties implicated, is not an accomplice: State v. Roberts, 15 Or. 197, 13 Pac. 896.

§ 1407. Evidence on Trial for False Pretenses.

Upon a trial for having, by any false pretense, obtained the signature of any person to any written instrument, or obtained from any person any valuable thing, no evidence can be admitted of a false pretense expressed orally and unaccompanied by a false token or writing; but such pretense, or some note or memorandum thereof, must be in writing, and either subscribed by or in the handwriting of the defendant. This section does not apply to an action for falsely representing or personating another, and in such assumed character receiving any such valuable thing. [L. 1864; D. Cd. § 218; D. & L. §173; H. C. § 1372.]

Upon trial of an indictment for obtaining uine: State v. Lurch, 12 Or. 95, 6 Pac. money by false pretenses, where the 405. charge is that the accused had obtained money by giving certain forged instruments, purporting to be promissory notes of third parties, as security, representing them to be genuine, the accused may give evidence that the signatures upon the notes were written by himself, under the direction and authority of the persons represented to be the makers, and such note so signed is not a false writing but gen

A person is not himself a false token so as to be indictable for obtaining money by means of a false token and false pretenses. under this and § 1811, where he procures money from a woman by promise of marriage, and by offering himself to her under a fictitious name, and by falsely stating he is unmarried: State v. Renick, 33 Or. 585. 56 Pac. 275, 72 Am. St. Rep. 758, 44 L. R. A. 266.

§ 1408. Evidence of Female Abducted or Seduced, Must be Corroborated. Upon a trial for inveigling, enticing, or taking away an unmarried female for the purposes of prostitution, or for having seduced and had illicit connection with an unmarried female, the defendant can not be convicted. upon the testimony of the female injured, unless she is corroborated by some other evidence tending to connect the defendant with the commission of the crime. [L. 1864; D. Cd. § 219; D. & L. § 174; H. C. § 1373.]

§ 1409. Court to Decide Questions of Law.

All questions of law, including the admissibility of testimony, the facts preliminary to such admission, and the construction of statutes and other writings, and other rules of evidence, are to be decided by the court, and all discussions of law addressed to it; and whenever the knowledge of the court is by this code made evidence of a fact, the court is to declare such knowledge to the jury, who are bound to accept it as conclusive. [L. 1864; D. Cd. § 220; D. & L. § 175; H. C. § 1374.]

As to judicial knowledge, see § 720, and note.

Construction of writings is for the court: State v. Moy Looke, 7 Or. 54.

The question whether the jury is likely to come to an agreement is for the trial

court to decide: State v. Reinhart, 26 Or. 476, 38 Pac. 822.

An instruction which simply embodies the effect of this section is not erroneous: State v. Reinhart, 26 Or. 482, 38 Pac. 822.

§ 1410. Jury to Receive the Law from the Court, and to Decide the Facts.

Although the jury have the power to find a general verdict, which includes questions of law as well as fact, they are bound, nevertheless, to receive as law what is laid down as such by the court; but all questions of fact, other than those mentioned in the last section, must be decided by the jury, and all evidence thereon addressed to them. [L. 1864; D. Cd. § 221; D. & L. § 176; H. C. § 1375.]

§ 1411. Defendant, May be Committed after Appearance.

When a defendant who has given bail appears for trial, the court may, in its discretion, at any time after such appearance, order him to be committed to actual custody to abide the judgment or further order of the court; and he must be committed and held in custody accordingly. [L. 1864; D. Cd. § 222 ; D. & L. § 177; H. C. § 1376.]

§ 1412. Verdict May be Either General or Special.

The jury may either find a general verdict, or where they are in doubt as to the legal effect of the facts proven, they may find a special verdict. |L. 1864; D. Cd. § 158; D. & L. §178; H. C. § 1377.]

VERDICT, GENERALLY. In a case received by the court: State v. Cartwright, where two defendants are jointly prose- 10 Or. 195. cuted, a verdict that reads, "We, the jury, find defendant guilty as charged," is void for uncertainty, and such verdict can not be amended to show that it was intended to convict both defendants: State v. Weeks, 23 Or. 3, 34 Pac. 1095.

It is error to receive the verdict of the jury in the absence of the defendant, where the crime is a felony: State v. Spores, 4 Or. 198.

The record of conviction of a felony must show affirmatively that the prisoner was present in person when the verdict was

A recommendation of the prisoners to the mercy of the court by the jury is not inconsistent with a verdict of guilty: State v. Fitzhugh, 2 Or. 227.

A general verdict where two are charged in an indictment with a crime is good, and is a verdict against both: Jones v. Snider, 8 Or. 127.

A verdict that the jury finds the defendant guilty of larceny only, and assesses the value of the property stolen, is a valid special verdict: State v. Savage, 36 Or. 216, 60 Pac. 610.

« PreviousContinue »