State v. Birchard

• Decision Date: 26 December 1899
• Citation: 35 Or. 484,59 P. 468
• Parties: STATE v. BIRCHARD.
• Court: Oregon Supreme Court

59 P. 468

35 Or. 484

STATE v. BIRCHARD.

Supreme Court of Oregon

December 26, 1899

Appeal from circuit court, Marion county; George H. Burnett, Judge.

Willard Birchard was convicted of rape, and appeals. Affirmed.

The defendant, Willard Birchard, was indicted, tried, and convicted of the crime of rape, alleged to have been committed July 10, 1895, by having illicit sexual intercourse with one Minnie Birchard, a female child under the age of 16 years; and, having been sentenced to imprisonment in the penitentiary for the term of 20 years, he appeals.

A.O Condit, for appellant.

D.R.N Blackburn, Atty. Gen., S.L. Hayden, Dist. Atty., and John H McNary, for the State.

MOORE J.

It is contended by defendant's counsel that the court erred in limiting the time to one hour after the case was called for trial, in which to submit requests for special instructions. The bill of exceptions shows that, upon the cause being called for trial, defendant's counsel gave notice that they would require the instructions to be in writing whereupon the court ordered that such special instructions as they desired to be given should be submitted within one hour, to which order an exception was taken. Counsel for the state seek to justify this course by rule 13 of the trial court, which reads as follows: "If either party desires the court to give special instructions to the jury on any questions of law, he must, unless the court shall otherwise direct at the commencement of the trial, submit such instructions in writing to the court before the first argument is begun, and each instruction must be separately numbered." It is argued that under this rule defendant's counsel had until the commencement of the first argument in which to submit instructions, and that while the court might, at the commencement of the trial, have extended the time, it was powerless to shorten it, and, having done so, the defendant was denied a substantial right, to his prejudice. The authority of a court to prescribe rules to facilitate the orderly dispatch of business is conferred by statute, which declares that every court of justice has power to provide for the orderly conduct of proceedings before it or its officers. Hill's Ann.Laws Or. § 911, subd. 3. "Under our system," says Mr. Justice McArthur in Carney v. Barrett, 4 Or. 171, in commenting upon the power of a court to adopt a similar rule, "all courts have certain inherent powers, to be exercised for the purpose of methodically disposing of all cases brought before them. They can establish such rules in relation to the details of business as shall best serve this purpose, having proper regard for the rights of parties litigant, as guarantied and recognized by the constitution and the laws." In Coyote, G. & S.M. Co. v. Ruble, 9 Or. 121, it is held that rules adopted by a court may be changed, modified, or rescinded by the power from which they emanated, but while they are in force they must be applied to all cases falling within them. No discretion can be exercised as to their application, unless authorized by the rules themselves, which are equally binding upon the court and its suitors. Under the Roman law, every praetor, on entering office, published rules by which he was governed in the administration of justice. At first he had power to alter such rules annually, but, as such changes opened the way to frauds, a law was enacted by which he was obliged throughout his term to adhere to the rules he had promulgated at the commencement thereof. 1 Kent, Comm. *529. Whatever may have been the origin or reason of the rule, it is now well settled that a court is bound by its rules, and cannot change them to suit the circumstances of a particular case, to the prejudice of a party. Coyote, G. & S.M. Co. v. Ruble, supra. The rule to which attention has been called provides that, unless otherwise directed at the commencement of the trial, special instructions requested by either party must be in writing, and submitted to the court before the first argument begins. It will be observed that the power is reserved to the trial court to change this rule to suit the exigencies of each case. So long as rules of court do not conflict with the constitution or the laws of the land, their interpretation by the court which promulgated them will not be disturbed by an appellate court unless manifest injustice results therefrom. 8 Am. & Eng.Enc.Law (2d Ed.) 31. It is incumbent upon an attorney to render the court all the assistance in his power in the trial of causes in which he has been retained, and in the performance of this duty he should suggest to the court, and request it to give, such instructions as he thinks applicable to the facts of the case, compatible with his theory. When counsel on each side of a case do this, and submit to the court in writing their respective views of the law, the court is enabled thereby, if received in proper time, to adopt such as it thinks suitable, or to frame others therefrom; and by this means the attorney becomes an aid to, and a friend of, the court. The more time a court can give to the examination of instructions, the better the consideration they will receive, and hence it is the duty of counsel to present their requests for instructions as soon as possible. In the trial of a cause, however, many things may occur after the first argument commences, and before the cause is finally submitted, which it might be the duty of counsel to bring to the attention of the court, and orally request it to instruct the jury in relation to; and while a rule may demand that such requests shall be in writing, and made within a specified time, the rule, in the interest of justice, must yield to the higher law of an imperious necessity. If this were not so, what hardships an appellant might possibly encounter under the rule adopted in this state, that he must request the court to give special instructions before he can be heard to complain of any failure in this respect! For if the court, before the jury was impaneled, and before it could be known what the evidence would be, could limit to one hour the time in which to suggest instructions, it might with equal propriety limit it to one moment; and then, if the court failed to instruct upon a material fact, the party would be turned out of the appellate court because he had not asked an instruction within the time limited. Clearly, this would be a travesty of justice. Instructions must be predicated upon the evidence submitted under the issues, and, while an attorney must know in a general way what evidence he may reasonably expect will be introduced, surprises in the trial of actions await the most vigilant and skillful, in view of which the law allows a reasonable time in which to request the court to give instructions which will meet the contingencies that arise. People v. Williams, 32 Cal. 281; People v. Demasters, 105 Cal. 669, 39 P. 35. Whatever may have been said in animadversion of the rule, its application to the case at bar can have produced no appreciable injury to the defendant, if the court fully instructed the jury upon the law applicable to the facts involved, and committed no error in refusing to give the instructions which his counsel requested.

Defendant's counsel excepted to the charge of the court for the reason that the jury were not instructed that, if they found from the evidence that a witness had testified falsely in regard to one material fact, the testimony of such witness was to be distrusted in regard to other matters. The statute requires the court to instruct the jury, on all proper occasions, "that a witness false in one part of his testimony is to be distrusted in others." Hill's Ann.Laws Or. § 845, subd. 3. It is insisted that the testimony of the prosecutrix in relation to her age is contradicted by her admissions made at another time. It appears that, at an examination of applicants for teacher's certificates, she was required by the county superintendent of Marion county to "write her full name, age, post-office address, and the date," which she did as follows: "Minnie Birchard; age, 17; Stayton, Oregon; May 13, 1896." At the trial, held February 15, 1897, she testified as a witness for the state that the alleged crime was committed July 10, 1895, and in answer to the question, "How old do you say you are now?" said, "I was seventeen the 8th day of last August." This witness in her redirect examination admitted that the statement made upon said examination for a teacher's certificate was false, but explained that the defendant told her she could not get a certificate unless she stated that she was 17 years old, and, being afraid she would fail in the examination, and knowing how disappointed the defendant would feel if such were the result, she answered the questions as he told her. The court did not charge the jury in the language of the statute, but gave them the following instruction: "Where evidence is given tending to contradict the sworn statement of a witness, that does not of itself, as a matter of law, take out of the case the testimony of the witness, but it goes to you for what you may deem it worth, as affecting the value of the sworn statement of the witness before you; and it is for you to determine, when all of these statements are taken together, how much importance you will attach to the testimony of the witness." The writing made at the teachers' examination was not sworn to by the witness, but the statement therein in relation to her age was a declaration which the jury had a right to consider in connection with the reason she gave for having made it.

The evidence shows that Minnie Birchard is the defendant's daughter, and also tends to show that the crime for which he was on trial was committed...