State v. Black

• Citation: 193 Or. 295,236 P.2d 326
• Parties: STATE v. BLACK.
• Decision Date: 10 October 1951
• Court: Supreme Court of Oregon

Page 326

236 P.2d 326

193 Or. 295

STATE v. BLACK.

Supreme Court of Oregon.

Argued May 7, 1951.

Decided Oct. 10, 1951.

Robert D. Lytle and Roy Kilpatrick, of Vale (Lytle & Kilpatrick, on brief), for plaintiff

Charles W. Swan, Dist. Atty. of Vale, for respondent.

Before BRAND, Chief Justice, and ROSSMAN, LATOURETTE, WARNER and TOOZE, Justices.

WARNER, Justice.

The defendant, George M. Black, was tried and found guilty and sentenced upon an indictment, the charging part of which is as follows: 'The said George M. Black on the 19th day of July A.D. 1947, in the said County of Malheur and State of Oregon, then and there being, did then and there unlawfully and feloniously take, steal and carry away a certain cow and calf, then and there being the personal property of one, Gerrit Smit.' From this judgment he appeals.

One of the basic contentions underlying many of defendant's twenty-two allegations of error is the assertion of an insufficient proof of ownership in Girit Smit (whose given name is erroneously spelled 'Gerrit' in the indictment). Therefore, to insure a better understanding of what we hereinafter say, a brief statement of the facts is necessary.

Peter Smit was the son of Girit Smit. For several years prior to March, 1942, he had been engaged in the cattle business in Malheur county, Oregon, operating from his father's home ranch about two miles west of Vale. He had in that time accumulated a herd of 35 or 40 head of Herefords of the beef stock type. This had been started from three or four head which had been given to him by his father, also a cattle raiser. The father and son had ranged their animals together. All of Peter's bore his own recorded brand on the left ribs and his own distinctive ear marks. On March 14, 1942, he left for war service and at that time turned over the possession and control of his cattle to his father to care for until his return. His father accepted this responsibility, thereafter giving the cattle the usual required attention, feeding them at the home ranch in the winter and in the summer ranging them in the general range area near Westfall and in or near where the defendant ranged his cattle. Girit Smit kept Peter's herd and increase intact except for the sale of one nine-year-old Hereford cow which he made in February, 1947.

Peter was killed in the South Pacific war theater some time in February, 1945. He was unmarried, without issue and left surviving him as his only heirs his father and mother. No proceedings had been instituted to probate his estate as of the time the cow and calf were stolen. Subsequent to Peter's death, his father had continued in possession of the cattle which Peter had owned and had, among other things, continued to brand the increase from Peter's herd with his son's brand and ear marks. The cow and calf which were the objects of the larceny were found on the 19th day of July, 1947, in a fenced enclosure on the defendant's home ranch about sixteen or seventeen miles west of Vale, Oregon. The cow was about six years old. The calf was a suckling steer calf, then about four months old and found at the side of its stolen mother. The cow carried the Peter Smit brand and ear marks. The calf had a brand on its right ribs, ear marks and wattles similar to the kind used by the defendant.

Defendant's first assignment of error is predicated upon the order of the court made at the beginning of the trial authorizing the jury to view the animals described in the indictment for the purpose of a better understanding of the evidence relating to the brands when offered. Section 5-302 O.C.L.A., provides that the court may order a jury view 'of the place in which any material fact occurred' whenever, in the opinion of the court, it is deemed proper. Section 5-302 does not, however, contemplate a view of the kind directed in this matter, nor is there any other statute in this state authorizing a view of that kind. Natwick v. Moyer, 177 Or. 486, 498, 163 P.2d 936. The authority of the court, if it has such authority, must be found as one of its inherent powers.

In Natwick v. Moyer, supra, 177 Or. at page 486, 163 P.2d at page 940, it was urged that the lower court erred in denying an application to permit the jury to view a truck. There we held that the court, in the exercise of its discretion, was justified in refusing the application because of certain facts relating to the then condition of the truck. In so saying, we made the following observation: 'We are not prepared to say that it is beyond the inherent power of the court in any circumstances to order an examination by a jury of some physical object which cannot conveniently be brought into court and introduced in evidence * * *.' This case brings to us for the first time the necessity of deciding whether or not a court has inherent power to order a view of personal property which cannot be brought into the courtroom.

The question posed by defendant's assertion of error, although novel in this state, has been met and answered many times in other jurisdictions. In 4 Wigmore, Evidence (3d ed.) 268, §§ 1162 and 1163, we find the status of the law of view supported by abundant authority and there stated by Professor Wigmore as follows:

'Where the object in question cannot be produced in Court because it is immovable or inconvenient to remove, the natural proceeding is for the tribunal to go to the object in its place and there observe it.

'This process, traditionally known as a 'view', has been recognized, since the beginnings of jury-trial, as an appropriate one * * *.

* * *

* * *

'That the Court is empowered to order such a view, in consequence of its ordinary common-law function, and irrespective of statutes conferring express power, is not only naturally to be inferred, but is clearly recognized in the precedents.'

At page 270, Mr. Wigmore further says: 'Moreover, the process of view need not be applicable merely where land is to be observed; it is applicable to any kind of object, real or personal in nature, which must be visited in order to be properly understood.' And again at page 273: 'Statutes now regulate the process in almost every jurisdiction of the United States; but it may be assumed that the judicial power to order a view exists independently of any statutory phrases of limitation.' (Italics ours.) In Springer v. Chicago, 135 Ill. 552, 566, 26 N.E. 514, 517, 12 L.R.A. 609, the court, after an extended review of the authorities on the origin of the privilege of view, concludes: 'If at common law, independent of any English statute, the court had the power to order a view by jury, as we think it plain the court had such power, as we have adopted the common law in this state our courts have the same power.'

The courts of Oregon are likewise bound by applicable rules of common law where they have not been modified or abrogated by statute. Cordon v. Gregg, 164 Or. 306, 316, 97 P.2d 732, 101 P.2d 414. In Vane v. City of Evanston, 150 Ill. 616, 37 N.E. 901, and State v. Perry, 121 N.C. 533, 27 S.E. 997, it is held that the power to direct a view in the absence of constitutional or statutory prohibition inheres in the courts. This latter case is cited by Mr. Justice Cardozo in Snyder v. Massachusetts, 291 U.S. 97, 112, 54 S.Ct. 330, 78 L.Ed. 674, 90 A.L.R. 575, as authority for that proposition. Also see 64 C.J., Trial, § 90, p. 87, where it is said: 'At common law, the judge * * * has discretion, not subject to review unless abused, to permit or refuse to permit the jury to view * * * an article or object involved in the action.'

It has been frequently held in states having statutes similar to § 5-302, O.C.L.A., that is, statutes authorizing a jury to view real property or a place where a material fact occurred but with no express provision for a view of chattels and other personal property, that the court may, notwithstanding lack of express statutory authority, direct a jury to view chattels when such a view is reasonably necessary for a proper understanding and appreciation of the facts in dispute. As illustrative, we note particularly Nutter v. Ricketts, 6 Iowa 92, decided in 1858. The Nutter case was an action in trover arising out of the taking of two horses, wherein a view of the horses was directed by the trial court. At the time of that decision, the laws relating to views in Iowa, Code of Iowa, 1851, were similar to § 5-302, O.C.L.A. The court in the Nutter case, in approving a view of one of the horses in the courthouse yard, said, in 6 Iowa at page 96: 'There is no objection, in principle, to a jury seeing an object which is the subject of testimony. By this means, they may obtain clearer views, and be able to form a better opinion. Small articles, the subject of testimony, are not infrequently introduced to the inspection of the jury, and no reason forbids the same course in relation to larger ones, other than the practicability and convenience of so doing. The practice lies in the discretion of the court.'

Subsequently in Morrison v. Burlington C. R. & N. Railway, 84 Iowa 663, 51 N.W. 75, the court ordered a view outside of the courtroom of a demaged gate. Appellants made a contention similar to that made here, that is, that the ordered view did not fall within the contemplation of the Iowa statute in that: 'The gate was not real property, the subject of the controversy, nor a place in which any material fact occurred,' but notwithstanding, the court, following Nutter v. Ricketts, supra, approved the view.

Recalling that the first Oregon statutes relating to trial practice had their genesis in the statutes of Iowa, we are impelled to give the decisions from that state great weight in this matter.

We think the better rule is: When it appears a view of any property, which cannot be brought into the courtroom for presentation during the course of the trial, might be of assistance to the jury in determining the guilt or innocence of a defendant in a criminal...