State v. Case

• Decision Date: 19 March 1912
• Citation: 61 Or. 265,122 P. 304
• Parties: STATE v. CASE.
• Court: Oregon Supreme Court

122 P. 304

61 Or. 265

STATE v. CASE.

Supreme Court of Oregon

March 19, 1912

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Frank L. Case was convicted of adultery, and he appeals. Affirmed.

L.C. Mackay (Haas & Mackay, on the brief), for appellant.

Joseph H. Page (Geo. J. Cameron, on the brief), for the State.

BURNETT J.

According to the bill of exceptions, it is charged in the indictment that: "The said Frank L. Case and Jane Hensley on the 24th day of June, 1911, in Multnomah county, state of Oregon then and there being, did then and there unlawfully and feloniously have illicit sexual intercourse with each other he, the said Frank L. Case, then and there being a married man, then and there having a lawful wife living, to wit Lydia Case, and thus in the manner and form aforesaid the said Frank L. Case and Jane Hensley did then and there unlawfully and feloniously commit the crime of adultery." The defendant was tried separately at his request, and at the hearing he called as a witness on his behalf Jane Hensley, his codefendant. The prosecution objected to her testifying for the reason that, being jointly indicted with the defendant then on trial, she was incompetent to testify for the defendant until the charge against her, set forth in the indictment, had been disposed of. The bill of exceptions recites as the contention of the defense that if, as admitted by the state, Jane Hensley was a single woman at the time the crime set forth in the indictment was alleged to have been committed, she could not under the laws of the state of Oregon be charged with the crime of adultery, and was therefore a competent witness. The court sustained the objection of the prosecution, and the defendant excepted. He then moved the court to dismiss the charge in the indictment as against Hensley on the ground that "the indictment did not state that the said Jane Hensley was married at the time the crime set forth in the indictment was alleged to have been committed; that she was in fact not a married woman; that, under the laws of the state of Oregon, sexual intercourse between a married man and a single woman does not make the single woman guilty of the crime of adultery; that said Jane Hensley was therefore a competent witness for the defendant at the bar; and that she was ready, willing, and able to give what was in the opinion of the court competent, relevant, and material evidence in behalf of the defendant, Case." But the motion was denied.

It is practically conceded that a codefendant cannot be used as a witness for or against the defendant on separate trial until the issue is determined or avoided by dismissal as to the proposed witness. Whether the Legislature, having abolished the rule forbidding the defendant on trial to testify in his own behalf, should adopt the same reasons supporting that legislation and enact a law to admit the testimony of one jointly indicted, is not incumbent upon us to discuss or advise. We can only adhere to the precedents already established in Latshaw v. Territory, 1 Or. 144, and State v. White, 48 Or. 428, 87 P. 137.

On the principal question the defendant contends that, it having been admitted that the woman named as codefendant was unmarried at the time named in the indictment, it is impossible as a matter of law for her to have committed adultery, and hence she was not really a codefendant and was improperly included in the criminal charge. "When two or more persons are charged in the same indictment, and the court is of the opinion that, in regard to a particular defendant, there is not sufficient evidence to put him on his defense, it must, if requested by another defendant then on trial, order him to be discharged from the indictment, before the evidence is closed, that he may be a witness for his codefendant." L.O.L. § 1531. In respect to adultery our Code provides thus: "If any person shall commit the crime of adultery, such person, upon conviction thereof, shall be punished by imprisonment in the penitentiary, etc." L.O.L. § 2071. "A prosecution for the crime of adultery shall not be commenced except upon the complaint of the husband or wife, or if the crime be committed with an unmarried female under the age of twenty years, upon the complaint of the wife or of a parent or guardian of such unmarried female, and within one year from the time of committing the crime or the time when the same shall come to the knowledge of such husband or wife or parent or guardian. When the crime of adultery is committed between a married woman and an unmarried man, the man shall be deemed guilty of adultery also and punished accordingly." L.O.L. § 2072. Adultery, being punishable by imprisonment in the penitentiary, is a felony. L.O.L. § 1371. Thus it is seen that the Code itself contemplates that adultery is predicated on illicit sexual intercourse between a married man and a single woman. Bashford v. Wells, 78 Kan. 295, 96 P. 663, 18 L.R.A. (N.S.) 580, 16 Ann.Cas. 310; Lyman v. People, 198 Ill. 544, 64 N.E. 974; State v. Fellows, 50 Wis. 65, 6 N.W. 239; Commonwealth v. Call, 21 Pick. (Mass.) 509, 32 Am.Dec. 284. The argument of the state is that although it is as impossible for a single woman to act as principal, in the common-law sense, in the commission of adultery as it would be for her and a married woman, they two only being involved, to commit the crime, yet, under our statute on the subject of accomplices, she can be indicted as a principal for her participation in the criminal act of her paramour. "The distinction between an accessory before the fact and a principal, and between principals in the first and second degree, in cases of felony, is abrogated and all persons concerned in the commission of a felony, whether they directly commit the act constituting the crime, or aid and abet in its commission, though not present, must hereafter be indicted, tried and punished as principals as in the case of a misdemeanor." L.O.L. § 1458. This language is substantially repeated in section 2370, L. O.L.

Can a person be an accomplice in a criminal act which that person cannot commit alone? In State v. Scott, 28 Or. 331 42 P. 1, it was held that a married woman, the paramour of an unmarried defendant who was convicted of adultery, was an accomplice so as to prevent her testimony from being sufficient for the conviction of the defendant without corroboration. In State v. Jarvis, 18 Or. 360, 23 P. 251, the court held that the female in a case of incest was an accomplice, and hence would not be sufficient as a witness to convict the defendant unless corroborated by other evidence. The court adhered to the same doctrine in the subsequent case against Jarvis. 20 Or. 437, 26 P. 302, 23 Am.St.Rep. 141. The same doctrine is taught in the incest case of Freeman v. State, 11 Tex.App. 92, 40 Am.Rep. 787. In State v. Light, 17 Or. 358, 21 P. 132, this court held that the dealer of a game of stud poker, which cannot be played by any one alone, is an accomplice of a defendant who played the game. In State v. Geddes, 22 Mont. 68, 87, 55 P. 919, 926, the Supreme Court of Montana, discussing statutes like our own on the subject of accomplices, said: "If one (a woman) could not be a principal in the crime of rape, she could not be a principal if she advised and encouraged rape. But the law declares she shall be a principal, and why may not the law make a woman who aids and abets rape guilty of rape, as well as the principal actor? The Legislature had power to abrogate certain criminal distinctions, and establish others; and, though from certain aspects an absurdity may appear, from others a perfectly plain and specific charge is made, to which defendant must plead." State v. Dowell, 106 N.C. 722, 11 S.E. 525, 8 L.R.A. 297, 19 Am.St.Rep. 568, is a case where a husband with a loaded gun compelled his wife to submit to the sexual embraces of a negro, whom he also compelled by the same method to attempt rape upon his wife. The husband was convicted as a principal. In People v. Chapman, 62 Mich. 280, 28 N.W. 896, 4 Am.St.Rep. 857, a husband wished to manufacture evidence of adultery against his wife in order to divorce her. To that end he hired another man for a price to gain admission to the wife's bed and there have adulterous intercourse with her, while the husband and his brother watched from concealment. The criminal employé attempted the adultery, but meeting with resistance accomplished his purpose by force, all of which the husband stood by and watched from his hiding place. The court held that the husband was guilty of rape as a principal. In Bishop v. State, 118 Ga. 799, 45 S.E. 614, certain bank officers had embezzled the funds of the bank with which they had been intrusted. The defendant, although unconnected in any way with the bank, aided the officers in the commission of the crime. In an opinion by Justice Lamar, now of the Supreme Court of the United States, it was held "that, while certain crimes may only be committed by a particular class of a community, others not of the class may be principals in the second degree or accessories thereto,...