State v. Avent

Decision Date24 October 1956
Citation209 Or. 181,302 P.2d 549
PartiesSTATE of Oregon, Respondent, v. Ann Whitney AVENT, Appellant.
CourtOregon Supreme Court

George H. Corey, Sp. Asst. Atty. Gen. and Sp. Prosecutor, argued the cause for respondent. With him on the brief were Robert Y. Thornton, Atty. Gen., and Bradley D. Fancher, Dist. Atty., Heppner.

Charles E. Raymond and Donald E. Kettleberg, Portland, argued the cause and filed a brief for appellant.

Before WARNER, C. J., and ROSSMAN, LUSK, BRAND, PERRY and McALLISTER, JJ.

LUSK, Justice.

The defendant was indicted for second degree murder, was convicted as charged, and has appealed.

Defendant's brief contains six assignments of error. Two of these based on the court's refusal to instruct the jury, in effect, that they could find that the defendant would have been justified in killing the victim of the homicide in order to prevent him from enticing away or stealing her child, were abandoned on the argument, and properly so, by counsel for the defendant. Three of the assignments were directed to rulings to which no exception was taken on the trial, and the remaining one to the court's denial of a motion for a new trial.

It should be borne in mind that it is only in rare cases that this court will notice an alleged erroneous ruling of the trial court to which no exception was taken or objection made by the appellant. From a very early date the rule has been that it is not error only, but error legally excepted to, which affords ground for reversal. The rule applies in criminal as well as civil cases. State v. Cory, 204 Or. 235, 282 P.2d 1054; State v. Nodine, 198 Or. 679, 686, 259 P.2d 1056. It is sometimes less strictly enforced in criminal, and especially in capital, cases, but even then it will not be relaxed unless the court, upon an examination of the entire record, can say that the error is manifest and that the ends of justice will not otherwise be satisfied.

One of the main purposes of an objection or exception is to afford the trial court an opportunity to correct its error. Kuhnhausen v. Stadelman, 174 Or. 290, 311, 148 P.2d 239, 149 P.2d 168. Here, the first assignment of error is based upon an instruction which advised the jury that their verdict must be unanimous. Under the Oregon Constitution, Art. I, § 11, ten members of the jury may render a verdict of guilty or not guilty in a criminal prosecution in the circuit court, 'save and except a verdict of guilty of first degree murder, which shall be found only by a unanimous verdict'. The instruction complained of was obviously an inadvertence on the part of the judge, and would undoubtedly have been corrected by him had the error been called to his attention at the time. Whether counsel for the defendant were equally inadvertent, or whether they were content to let the instruction go by as not unfavorable to the defendant, we have no way of knowing. At any rate, the verdict was unanimous, and, in view of the entire record, we are satisfied that the instruction was not harmful to the defendant. There is no reason whatever to believe that, but for the instruction the jury, or ten of their number, would have found the defendant not guilty. The record shows that the court commenced its charge at 12:30 P.M. and the jury returned with its verdict at 4:30 P.M. of the same day. Presumably, the jury followed the time-honored custom of going to lunch before commencing their deliberations. The short time which they took for agreement upon a verdict would indicate that they found the case a clear one.

Before considering the remaining assignments of error we will review the evidence briefly.

The defendant was employed as a bartender in O'Donnell's Cafe in Heppner, Oregon. She was the divorced wife of Fred Avent, and the victim of the homicide was Avent's attorney, Delmore Lessard, a member of the Oregon bar with offices in Portland. By the decree of divorce the defendant had been awarded custody of her son, aged 14, who lived with her and was at a Scout camp some fifty miles from Heppner on June 4, 1955, the day of the homicide. On that day Avent and Lessard went to Heppner from Portland, and at about 5:00 o'clock in the afternoon Lessard, having made an appointment with the defendant by telephone, met her in the bar where she worked. They sat in a booth talking for a few minutes. According to the defendant's testimony, Lessard said that he had come to Heppner for the purpose of taking the boy back and putting him in an orphanage. She testified that he called her a 'dirty flub' and unfit to have custody of the boy. After a few minutes conversation the defendant went into the restaurant which adjoined the bar, and was followed by Lessard. The defendant returned to the bar and armed herself with a .38 Smith-Wesson revolver, six shot, which had been left there by its owner and was kept on a shelf under a cigarette counter. She returned to the restaurant carrying the revolver under a jacket which hung over her arm. Lessard was still there. She uncovered the revolver, and, as he retreated along the aisle between the counter where food was served and a double row of booths paralleling the counter, she pulled the trigger. Three times the trigger fell on empty cylinders. The fourth time a bullet was fired which penetrated the back of a cigarette vending machine which stood at the end of the row of booths farthest from the bar and near the street entrance to the restaurant. At the time that this shot was fired Lessard was crouched behind the machine which fell toward the food counter, apparently as the result of a push given it by Lessard, who continued his retreat back towards the bar between the double row of booths, but before he could make good his escape the defendant shot again, and this time the bullet took effect, entering the man's temple area above the right ear and lodging at the back of the skull. Death appears to have been instantaneous. The foregoing facts are established by uncontradicted evidence.

Mary Snow, a waitress in the restaurant, was an eyewitness to the shooting. She testified as a witness for the state that, when Lessard came from the bar into the restaurant, she and another waitress were seated on stools at the end of the food counter nearest the bar. Lessard stopped and asked them for Mr. and Mrs....

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51 cases
  • State v. Inman, 12CR0651
    • United States
    • Court of Appeals of Oregon
    • 30 Diciembre 2015
    ...of the issue and given an opportunity to correct any error. State v. Brown, 310 Or. 347, 355–56, 800 P.2d 259 (1990) ; State v. Avent, 209 Or. 181, 183, 302 P.2d 549 (1956). Those factors do not comprise a necessary or complete checklist; they merely are some of the permissible consideratio......
  • State v. Inman, A153569
    • United States
    • Court of Appeals of Oregon
    • 30 Diciembre 2015
    ...and given an opportunity to correct any error. State v. Brown, 310 Or 347, 355-56, 800 P2d 259 (1990); State v. Avent, 209 Or 181, 183, 302 P2d 549 (1956). Those factors do not comprise aPage 43 necessary or complete checklist; they merely are some of the permissible considerations."Id. at ......
  • State v. Braley
    • United States
    • Supreme Court of Oregon
    • 14 Septiembre 1960
    ...708; State of Oregon v. Abrams, 1883, 11 Or. 169, 8 P. 327. This rule is applicable in criminal as well as civil cases, State v. Avent, 1956, 209 Or. 181, 302 P.2d 549; State v. Foot You, 1893, 24 Or. 61, 32 P. 1031, 33 P. 537, and it applies even though the defendant was tried for the comm......
  • Ailes v. Portland Meadows, Inc.
    • United States
    • Court of Appeals of Oregon
    • 5 Diciembre 1990
    ...an alleged erroneous ruling of the trial court to which no exception was taken or objection made by the appellant.' State v. Avent (1956) 209 Or 181, 183, 302 P2d 549. There is no reason for us to consider the sufficiency of the order sua sponte." 223 Or. at 542, 352 P.2d Barr presented the......
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