State v. Holleman

Decision Date23 November 1960
Citation225 Or. 7,357 P.2d 264
PartiesSTATE of Oregon, Respondent, v. Richard Denton HOLLEMAN, Appellant.
CourtOregon Supreme Court

Edward N. Fedeley, Eugene, for appellant.

Kenneth A. Morrow, Deputy Dist. Atty., Eugene, for respondent. On the brief, William F. Frye, Dist. Atty., Eugene.

Before McALLISTER, C. J., and WARNER, SLOAN, O'CONNELL and HOWELL, JJ.

HOWELL, Justice pro tem.

This is a companion case to State v. Holleman, decided, Or., 357 P.2d 262.

The facts are generally the same as those in the companion case, except that the prosecuting witness in this case is Irving Wilson. Wilson testified for the state in the first trial.

The defendant sets forth six assignments of error.

He first contends that the court erred in giving the statutory instruction on 'weaker and less satisfactory evidence' (ORS 17.250(7)), as the defendant did not testify. The trial court did instruct the jury concerning the burden of proof upon the state to prove defendant's guilt beyond a reasonable doubt.

It is not reversible error to give such an instruction when the defendant fails to testify. However, it should be avoided unless it is limited to evidence offered by the state. State of Oregon v. Patton, 208 Or. 610, 303 P.2d 513.

The defendant's second assignment of error, that the court should not give 'a substantial repetition of the instructions previously given when the jury requested additional instructions,' is obviously without merit, as it is a matter of discretion with the trial court.

The defendant asserts he was entitled to a directed verdict because there was 'no independent evidence of crime except that of accomplice' and that Wilson was an accomplice. Wilson was not an accomplice. State v. Du Bois, 175 Or. 341, 349, 153 P.2d 521.

In the defendant's fourth assignment of error he contends the testimony about purchasing Cheracol cough syrup for the defendant and signing the exempt narcotics register was inadmissible. The evidence was admissible to prove the date of the alleged offense. Counsel's statements to the court that the testimony concerning purchasing Cheracol cough syrup was prejudicial were entirely unsupported by any evidence.

The defendant assigns as error testimony concerning the purchase of pills from the defendant on January 28. The pills did not give the desired effect, so the next day the defendant provided the shots of nembutal and sparine as alleged in the...

To continue reading

Request your trial
7 cases
  • State v. Mains
    • United States
    • Oregon Supreme Court
    • 27 Septiembre 1983
    ...also instructs, as it did here, that the jury can draw no unfavorable inference from the defendant's failure to testify. State v. Holleman, 225 Or. 7, 357 P.2d 264 [1960]; State v. Patton, 208 Or. 610, 612, 303 P.2d 513 [1956]; State v. Thomson, 203 Or. 1, 16, 278 P.2d 142 In State v. Green......
  • State v. Wright
    • United States
    • New Jersey Superior Court — Appellate Division
    • 7 Agosto 1974
    ...sexual offenses, State v. Finley, 108 Ariz. 420, 501 P.2d 4 (Sup.Ct.1972); contributing to delinquency, State v. Holleman, 225 Or. 7, 357 P.2d 264 (Sup.Ct.1960); furnishing alcoholic beverages, Schnee v. State, 254 Ind. 661, 262 N.E.2d 186 (Sup.Ct.1970). In short, there is nothing whatever ......
  • State v. Brock
    • United States
    • Oregon Court of Appeals
    • 8 Septiembre 1981
    ...pursuant to ORS 17.250(7) should be avoided in a criminal case unless limited to evidence offered by the state. State v. Holleman, 225 Or. 7, 357 P.2d 264 (1960). When a defendant in a criminal case requests such an instruction, it ought to be given if otherwise appropriate. To be appropria......
  • State v. Betts
    • United States
    • Oregon Supreme Court
    • 24 Julio 1963
    ...also instructs, as it did here, that the jury can draw no unfavorable inference from the defendant's failure to testify. State v. Holleman, 225 Or. 7, 357 P.2d 264; State v. Patton, 208 Or. 610, 612, 303 P.2d 513; State v. Thomson, 203 Or. 1, 16, 278 P.2d VI The physician who treated the de......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT