In State v. Moore et al., 124 Or. 61, 262 P. 859, this court, by Justice ROSSMAN, referred to the statute ORS 136.040 which requires the personal presence of the defendant at a felony trial.Summary of this case from State of Oregon v. Kuhnhausen
Submitted on briefs December 21, 1927
Affirmed January 10, 1928 Rehearing denied February 14, 1928
From Klamath: A.L. LEAVITT, Judge.
AFFIRMED. REHEARING DENIED.
For appellant there was a brief over the name of Mr. W.P. Myers.
For respondent there was a brief over the name of Mr. Wm. Duncan, District Attorney.
The defendant appeals to this court from a judgment finding him guilty of the crime of grand larceny; the subject matter of the alleged theft was an automobile. He contends that the court erred when it denied a motion made by him at the beginning of the trial requiring the state to specify some particular day as the time of the alleged theft. January 5, 1927, was the time specified in the indictment. Counsel stated, "We move for the reason that if the state stands on the fifth day of January, 1927, the defendant Jim Cushman intends to and can and will prove an absolute alibi." The motion was denied. Defendant and another, Bob Moore, were jointly indicted; Moore had already been tried. In his trial counsel for this defendant had become familiar with the state's evidence and its contentions. The facts were: The defendant and Moore walked across the street, got into an automobile and were riding in it at the time of their arrest. Shortly after defendant's trial commenced, it became evident that the state did not rely upon January 5th as the time of the alleged theft. It is well settled that the state must prove a particular offense; this is an inherent part of its burden to establish and identify a particular act committed by the defendant and made criminal by the prohibitions of the law; time being an identifying circumstance it becomes necessary frequently to establish it, sometimes to name it beforehand so that the defendant whose defense is an alibi may properly account for his presence on the occasion in question. But at what particular stage of the proceedings the prosecution should be compelled to announce the specific time rests largely in the sound discretion of the trial judge: State v. Keelen, 103 Or. 172 ( 203 P. 306, 204 P. 162); 16 C.J. 862. No abuse of that discretion was shown in this case. It soon became evident that the state contended that the defendant and Moore stole the automobile shortly before the occasion upon which they were riding in it; the defendant renewed his motion at no subsequent time. After the state had rested and before the defendant put on his defensive matter, he did not ask that he be apprised as to the time relied upon by the state. In his defense the defendant admitted he was in the automobile at the time of the arrest, and of course made no effort to show he was elsewhere. It is clear that defendant was in no sense prejudiced by the ruling of the court.
The second assignment of error is based upon the fact that one of the jurors was called to the box before the defendant was brought into the courtroom by the jailer. The record shows that after counsel had announced their readiness to proceed with the trial of the case the following occurred:
"The Court: Very well. Put a jury in the box for the trial of State against Cushman.
"(Reporter's note: One juryman had been called to the box when counsel for defendant interposed as follows:)
"Mr. Meyers: Mr. Cushman is not in the courtroom.
"(Upon the arrival of the defendant the Clerk completed the filling of the jury-box.)
"Mr. Meyers: If the Court please, the defendant waives any examination of the jury as to cause.
"Mr. Duncan: The State will waive any examination."
Further, the record shows that at first counsel for the defendant announced that he would not exercise any peremptory challenge, but when the state expressed its intention to exercise peremptory challenges the defendant apparently availed himself of his similar privilege. The record does not show whether the first venireman, who was called in the absence of the defendant, remained in the box as a juror. Apparently no trouble was encountered in obtaining a satisfactory jury. Section 1512, Or. L., provides: "If the indictment be for a misdemeanor, the trial may be had in the absence of the defendant, if he appear by counsel, but if it be for a felony, he must be present in person." This statute, like the common law, undertakes to assure a defendant charged with a felony that his trial cannot be conducted in his absence. But preliminary and formal matters constitute no part of the trial and are therefore legal even though defendant was not present: 16 C.J. 815. See, also, State v. McDaniel, 70 Or. 232 ( 140 P. 993). In Hopt v. People of Utah, 110 U.S. 574 ( 28 L.Ed. 262, 4 Sup. Ct. Rep. 202), the federal Supreme Court held that the trial commences at least from the time when the work of impaneling the jury begins. But in that case challenges of jurors were tried in the absence of the defendant; this the court found may have affected his substantial rights, for had he been present, the court reasoned, he might have supplied information which would have brought a different result. In State v. Spores, 4 Or. 198, and State v. Halloway, 57 Or. 167 ( 110 P. 791), we held that it was error to discharge the jury in the absence of the defendant. In the former case the jury had agreed upon a verdict of guilty. In the latter case the jury had disagreed. In both cases a substantial right of the defendant was affected; in the former the defendant might have desired to poll the jury. In the latter the important function of determining whether the jury should be kept together longer or discharged took place in the absence of the defendant. We do not understand that this defendant contends that any substantial right of his was invaded during his absence. The only thing that occurred in the defendant's absence was a preliminary matter; no issue of fact or of law had yet arisen. The defendant's presence would have availed him nothing, but the court very properly halted the proceedings when its attention was called to the defendant's absence.
Section 556, Or. L., enjoins us to look for errors substantially affecting the rights of the appellant, and prohibits us from disposing of cases on mere technical errors. While the regularity of the proceedings was departed from, no substantial right of the defendant was invaded; hence no reversible error occurred.
Assignments of error are based upon the ruling of the court admitting testimony over the defendant's objections. Several items of hearsay evidence got before the jury. We do not believe, however, that any of this evidence was prejudicial; most of it was mere idle talk and the proper evidence was soon supplied. For instance, the witness Walter Foster, as a prelude to his testimony, was permitted to state how he became acquainted with the defendant. In so doing he related a brief conversation he held over the telephone with some official at Grants Pass, to the effect that the latter was holding two men, also an automobile, "presumably stolen." Hearsay evidence is a statement made by one who is not under oath and is not subject to cross-examination. A feeling that a juror may not know how to fairly appraise its value as evidence has led to a total exclusion of all hearsay statements in our scheme of jurisprudence except certain well-defined classifications. The hearsay evidence objected to by defendant's counsel should not have been admitted, but we fail to see how it was prejudicial. This defendant and Moore were the two men concerning whom the Grants Pass official telephoned; the car in which they were riding was the one which was referred to as "presumably stolen." The Grants Pass official was Robert Corpron; he was called as a witness and testified. There was nothing in the conversation repeated by Foster that was prejudicial, except perhaps the words "presumably stolen"; used by themselves, they might have a prejudicial effect, but Foster, without objection, was permitted to testify that he took the possession of the car and sent it to the dealer. He did this, of course, because he presumed it was a stolen car. We do not believe that the reception of the evidence to which defendant made objection was prejudicial.
Defendant complains because the court permitted Foster, to whom we have previously referred, to relate as a witness a conversation which he had with the defendant shortly after the latter's arrest; Foster was a state traffic officer. Defendant contends that these statements amounted to a confession and that Foster's narration of them showed that they were obtained by improper inducements. In reply to the defendant's inquiries as to what Foster thought would be meted out to defendant as a penalty, Foster replied: "If a man gets caught in a jam this way the best thing is to come through with a clean breast of it; and if he goes through court proceedings it is pretty hard to ask for leniency, and my advice would be to come through clean." These words did not come from Foster until the defendant had completed the statements which his counsel calls a "confession." Such advice following a confession does not render it inadmissible: State v. Leonard, 3 Or. 157; State v. Morris, 83 Or. 429 ( 163 P. 567). It is not necessary for a public officer to whom a statement is made by one accused of a crime to warn the latter that his statements may be used against him. The essential element is that it must be shown that the statement was made free from threats, fears or improper inducements; in fact, it must be a voluntary utterance: State v. Wilder, 98 Or. 130 ( 193 P. 444); State v. Wong Wen Teung, 99 Or. 95 ( 195 P. 349). The statement was admissible.
Defendant complains because the state was permitted to show that one Paul Johnson, a dealer in automobiles at Klamath Falls, lost a set of dealer's license plates at about the time when this car was stolen. The license plates, properly attached to the car mentioned in the indictment, were not upon it at the time when defendant was riding in it, but the plates belonging to Johnson had been substituted for them. That Johnson's dealer plates were upon the car was positively testified to by Foster, and was not denied by the defendant. While it was not shown by direct testimony that the defendant or Moore had placed Johnson's license tags upon the car, nevertheless these tags were upon a car which was in the possession of the defendant and his companion. From this circumstance the jury could properly infer that the defendant and his companion were the ones who stole the tags as well as the car. It is true that the indictment did not charge the defendant with the theft of the tags, but for the purposes of this case the tags were in a very real sense a part of the car. The operation of the stolen car and the display of the license tags were an inseparable transaction. The rules of evidence governing the admissibility of testimony showing that the defendant committed other crimes set forth in State v. O'Donnell, 36 Or. 222 ( 61 P. 892), fully warranted the admission of this evidence.
The defendant contends that the court erred when it denied his motion for a directed verdict. As evidence of his guilt, there was his statement to Foster which we have already mentioned, also a statement made by him to the sheriff of Jackson County and one of the latter's deputies that he, this defendant, was the man who got the car. This admission was received without objection. At that time the defendant was somewhat under the influence of liquor, but apparently was able to understand questions and make answers that were responsive and intelligent. As a witness, he admitted that he walked across the street in the City of Klamath Falls in company with Moore, got into the car and rode off; either the dealer's license tags were already upon the car, or were attached after they got in and before the arrest; Moore was not a dealer in automobiles. Apparently their destination and route was not clear in their own minds, but the defendant stated to Foster that they planned to "ditch the car" and get aboard a train. In addition to this testimony we have the inference which a jury could properly draw from their possession of the car that they were the thieves who stole it. Their possession was a very recent one. This court said in State v. Williams, 102 Or. 305, ( 202 P. 428):
"Where it appears in evidence, upon the trial of one charged with larceny, that the identical property, or some part thereof, alleged to have been stolen was found in the possession of the accused soon after the theft, the case is ordinarily one for the jury."
To the same effect see State v. Keelen, supra, State v. Pomeroy, 30 Or. 16 ( 46 P. 797), and State v. Hale, 12 Or. 352 ( 7 P. 523). For a discussion as to the strength and character of this inference, see 36 C.J. 873. In State v. Kehoe (Mo.), 220 S.W. 961, the circumstances from which the inference of guilt arose were more favorable to the defendant than in the present case, yet the court held that the circumstances warranted an inference that the defendant was the thief. In his motion the defendant dwells much upon the circumstance that while the state claimed that the theft had been committed February 5th, the sales contract was executed February 15th. Nevertheless a certificate of title issued by the Secretary of State was dated February 1st, and the witnesses testified that the theft took place after the sale and not before, and the return of the car to the garage for repairs was some days after the sale. Mistakes may occur in dates, but the chronological order in which the events transpired most always retain their proper position in the memory. We do not believe that the court would have been warranted in directing a verdict of not guilty.
We have reviewed the other assignments of error; we believe they are without merit. Finding no error in the record the judgment of the lower court is affirmed.
AFFIRMED. REHEARING DENIED.