State v. Abel

• Decision Date: 20 October 1965
• Citation: 406 P.2d 902,81 Or.Adv.Sh. 373,241 Or. 465
• Parties: STATE of Oregon, Respondent, v. John D. ABEL, Appellant.
• Court: Oregon Supreme Court

Page 902

406 P.2d 902

241 Or. 465

STATE of Oregon, Respondent, v. John D. ABEL, Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted June 9, 1965.

Decided Oct. 20, 1965.

William V. Deatherage, Medford, argued the cause and filed briefs for appellant.

Justin M. Smith, Deputy Dist. Atty., Medford, argued the cause for respondent. With him on the brief was Thomas J. Owens, Dist. Atty.

Before McALLISTER, C. J., and SLOAN, GOODWIN, HOLMAN, and LUSK, JJ.

LUSK, Justice.

Defendant has appealed from a judgment of conviction of the crime of forgery. The indictment charged that on June 3, 1963, he forged the name of Francis A. Krouse to a check for $50 drawn on the First National Bank of Oregon, Medford Branch, and made payable to 'Big Y Shopping Center.'

The defendant's brief contains 12 assignments of error, only two of which are based on objections or requests for rulings properly and timely made by counsel at the trial. Nevertheless, it is claimed by counsel for defendant that this court is 'required' to review these alleged errors 'to guarantee due process to the accused.' This might be true in a case where the conviction is not supported by a scintilla of evidence as in State v. Moore, 194 Or. 232, 242, 241 P.2d 455, upon which the defendant relies. But it is not generally true and, notwithstanding recent decisions of the courts manifesting a high degree of sensitivity to claimed violations of the constitutional rights of persons accused of crime, it is still the rule in this state in criminal as in civil cases that 'a question not raised and preserved in the trial court will not be considered on appeal:' State v. Braley, 224 Or. 1, 9, 355 P.2d 467, 471. The rule is relaxed in exceptional circumstances, particularly in what were formerly capital cases where '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:' State v. Avent, 209 Or. 181, 183, 302 P.2d 549, 550.

Nor is the case any different because the defendant is an indigent represented by court appointed counsel. ¹ The common complaint of the convicted defendant on appeal that he has been denied due process of law because of alleged errors committed on the trial is, in most instances, without any justification whatsoever. It is blowing up errors of judgment into a denial of constitutional rights. ² This misconception is not confined to Oregon and we think it worthwhile to quote what other courts have said upon the subject:

'One who asserts that his attorney did not provide legal representation adequate to meet the requirements of the Sixth Amendment has a heavy burden to sustain. This court has repeatedly held that it is not enough to show merely that the assigned counsel was inexperienced; it is necessary to show that counsel was 'so incompetent or inefficient as to make the trial a farce or a mockery of justice.' Peek v. United States, 9 Cir., 321 F.2d 934, 944. The burden was not sustained here.' Reid v. United States (CA 9 Or) 334 F.2d 915, 919.

'Although not specifically urged as a specification of error, appellant contends that he was denied his constitutional right to counsel. He bases this contention on the fact that his counsel failed to make a motion for acquittal at the end of the trial and would not allow appellant to take the stand and explain his possession of narcotics in order to overcome the presumption of section 174 of Title 21 of the U.S.C.

'A careful reading of the record in this case convinces us that this contention has no merit. It is a stock complaint, after conviction, on the part of appellants who have been provided court appointed counsel.' Proffit v. United States (CA 9 Or) 316 F.2d 705, 707-708.

'As to the requirement under the Fourteenth Amendment, the services of counsel meet the requirements of the due process clause when he is a member in good standing at the bar, gives his client his complete loyalty, serves him in good faith to the best of his ability, and his service is of such character as to preserve the essential integrity of the proceedings as a trial in a court of justice. He is not required to be infallible. We know that some good lawyer gets beat in every law suit. He made some mistakes. The printed opinions that line the walls in our offices bear mute testimony to that fact. His client is entitled to a fair trial, not a perfect one.' United States ex rel. Weber v. Ragen (CA 7 Ill) 176 F.2d 579, 586, per Minton, J.

'We believe that modern requirements for the appointment of counsel for indigent defendants and provisions for their payment at public expense, such as we have in this State, contemplate full representation and do not contemplate that the trial court shall act as a kind of associate trial counsel for a defendant represented by court appointed counsel or that the defendant so represented shall be accorded some greater protection or leniency than that accorded a defendant represented at his own expense by counsel of his own choosing.' Woodell v. State, 223 Md. 89, 95, 162 A.2d 468, 472, per Brune, C. J.

See, also, Effective Assistance of Counsel, 49 Va.L.Rev. 1531, 1540-1541.

The facts of this case are as follows: Mr. and Mrs. Francis A. Krouse, residents of Grants Pass, had a commercial account in the First National Bank of Oregon, Medford Branch. On May 29, 1963, Mrs. Krouse lost her checkbook while shopping in the Oregon Food Store in Grants Pass. The checkbook contained blank checks of the bank, on the face of which were printed the names and address of Mr. and Mrs. Krouse. They are known as 'personalized' checks. The checkbook came into the hands of the defendant, who, on June 3, 1963, purchased three pairs of cowboy boots at Big Y Shopping Center in Medford. The cost of the boots was $44.85. Defendant paid for the boots with a check taken from the checkbook for $50 to which he forged the name of Francis A. Krouse. He was given the balance over the purchase price in cash. This is the transaction alleged in the indictment.

On June 2, 3, and 4, the defendant forged Mr. Krouse's name to 14 other similar checks, all of which were received in evidence without objection. As to some of them the defendant claims that there is no evidence that he passed them and, therefore, they were improperly admitted. All the checks were passed in the course of the peregrinations of the defendant and two companions (the Oden twins) between Grants Pass and Medford, during which they visited numerous taverns and consumed copious quantities of beer and other intoxicating liquors. The testimony of the victims of the forged checks was uniformly to the effect that the defendant was not drunk, though, according to some of them, he appeared to have been drinking. The checkbook, according to the testimony of one of the twins, was obtained by the defendant from a woman referred to by the witness as 'the big mamma,' who demanded of the defendant $15 for it. The defendant told the twins that his name was Francis Krouse and he admonished them to introduce him as John or Francis if they ran into any of their friends. Alexander Alvarez testified that on June third he sold his used Ford to the defendant and accepted the latter's check for $375 in payment. This was one of the forged checks. In compliance with Alvarez' request for identification the defendant produced the Krouse checkbook and disclosed 'a slip of paper with the name and address on there, the address of Krouse.'

The defendant took the stand. He neither denied nor affirmed that he signed and passed the checks. He testified that he went into a 'void' in a tavern on June 1, 1963, and did not wake up until June fifth, when he found himself in an automobile on the Green Spring Mountain enroute to Reno to be married. His intended wife was also in the car and another couple. They proceeded on to Reno where the marriage was celebrated. He claimed that he remembered nothing that occurred after June first until he woke up on Green Spring Mountain. He testified that in 1930 while contesting in a rodeo he was kicked by a horse and sustained a skull fracture; that ever since he had taken barbiturates and a drug called Amsec to avoid epileptic seizures; that at times he would 'go into a complete void and don't fall down or anything like that. I may even walk';...