State v. Coffey

• Decision Date: 05 October 1937
• Citation: 157 Or. 457,72 P.2d 35
• Parties: STATE v. COFFEY.
• Court: Oregon Supreme Court

72 P.2d 35

157 Or. 457

STATE v. COFFEY.

Supreme Court of Oregon

October 5, 1937

In Banc.

Appeal from Circuit Court, Marion County; Earl C. Latourette, Judge.

Orey G Coffey, a sergeant in the police department of the City of Salem, was convicted of the crime of receiving a bribe in violation of section 14-406 of the Code 1930, and he appeals.

Affirmed.

Paul F. Burris, of Salem, for appellant.

Ralph E. Moody, Asst. Atty. Gen. (I. H. Van Winkle, Atty. Gen., on the brief), for the State.

ROSSMAN Justice.

April 1 to September 15, 1935, the defendant was a sergeant in the Salem police department. About that time one Elwood Brown, who later became a witness for the State operated, in a cardroom in Salem, a nickel in the slot machine of the kind prohibited by section 14-746, Oregon Code 1930. Evidence presented by the State indicated that Brown paid the defendant monthly sums of money in consideration of the latter's agreement not to interfere with the operation of the machine. Based upon the jury's verdict the defendant was convicted of a violation of section 14-406, Oregon Code 1930, in harmony with the charges of the indictment. The section of our laws just mentioned prohibits public officers and servants from accepting money, valuables, etc., given for the purpose of influencing them in the discharge of their duties. The defendant contends that error was committed by the trial judge:

(1) In refusing to hold that Brown was an accomplice in the commission of the crime.

(2) In permitting Curtis Ferguson, a witness for the State, to testify that upon an occasion when he and Brown were in the cardroom removing the earnings of the machine, Brown, seeing the defendant waiting outside, told Ferguson to hand him $10, whereupon he went out to the defendant. This was the time of the month when, according to Brown, he made monthly payments to the defendant. The challenged part is Ferguson's statement that Brown asked for $10.

(3) In refusing to withdraw from the jury's consideration a photostatic copy of a canceled check in the denomination of $13.83, signed by Brown, which the State claimed was a part of the corrupt gifts.

(4) In refusing permission to the defendant to introduce in evidence a judgment roll of the circuit court in which that court refused to confiscate some slot machines.

We shall first consider the defendant's contention that the trial judge erred when he refused to instruct the jury that Brown was an accomplice in the commission of the crime charged in the indictment, and that, therefore, the jury could not base a verdict of guilty upon his testimony unless it was corroborated. The sole issue presented by this contention is whether Brown was an accomplice in the commission of the crime of which the defendant was convicted.

Section 14-405, Oregon Code 1930, provides: "If any person shall corruptly give *** any gift *** to any judicial, legislative, or executive officer, *** with intent to influence the vote, opinion, decision, judgment, or other official conduct of such officer, *** such person upon conviction thereof, shall be punished by imprisonment in the penitentiary not less than one nor more than ten years, or by imprisonment in the county jail not less than one month nor more than one year, or by a fine of not less than $100 nor more than $1,000."

Section 14-406, Oregon Code 1930, under which the defendant was indicted, in language similar to the above, prohibits judicial, legislative, and executive officers from receiving moneys, valuables, etc., which are intended to influence them in the discharge of their duties. The penalty provided is "imprisonment in the penitentiary not less than five nor more than fifteen years."

Section 13-935, Orgeon Code 1930, provides that a conviction cannot be had upon the noncorroborated testimony of an accomplice.

As already indicated, the defendant was a sergeant in the Salem police department and was, therefore, an executive officer within the contemplation of the above section of our laws (section 14-409, Oregon Code 1930). In the same city Brown was illegally operating a slot machine. In April, 1935, the defendant seized this machine and carried it to the police station. Later he returned it to Brown, telling him to take it out of the city. Three or four weeks later Brown returned the machine to Salem and installed it in a place known as the Model Café. So far the evidence is free from dispute. Brown testified that after the defendant had seized the machine he and the defendant had several conversations. We now quote from his testimony:

"Q. Why have you been so reluctant on the stand, what is the reason? A. Well, testimony of this kind can cause me an awful lot of trouble.

"Q. Now what did you pay this ten dollars a month to Coffey for? A. So the machine could run at the Model Cafe without being bothered.

"Q. And he agreed with you, did he? A. Yes, sir.

"Q. That if you would pay him ten dollars a month that he would allow the machine to run and not arrest you or bother you with it? A. Yes.

"Q. Or file any complaint against you? A. Yes, sir.

"Q. Did you pay him ten dollars a month? A. Yes, I did.

"Q. And for how many months did you pay him that ten dollars a month? A. I should imagine about seven months, possibly eight. ***

"A. Well, the only agreement was, I was to give him ten dollars a month and if anything came up on the machines he would notify me so I could take them out. *** "Q. And you say it was made some time between March 7th and April 1st? A. Yes, I believe it was.

"Q. 1935? A. Yes.

"Q. Now where would you meet Coffey in order to pay him the ten dollars a month? A. He would usually come over in a car and meet me at the Model and we would talk a while regarding different situations."

We shall now refer briefly to another element of the alleged bribe. In September, 1932, the defendant incurred indebtedness amounting to $66.63 with the H. L. Stiff Furniture Company of Salem, payable $10 at the time of the opening of the account and $10 per month thereafter until the account was paid. However, on March 6, 1935, there remained unpaid the sum of $13.83, and, according to the testimony of Ralph Glover, office manager of the furniture company, the account had long been in the hands of the store's collector, W. M. Dunkle, who also was an employee of Brown. The latter swore that on Dunkle's suggestion he drew a check on March 6, 1935, for $13.83 payable to the Stiff Furniture Company, and handed it to Dunkle. The records of the store and the bank indicate that the check was duly cashed and thus the old account was discharged. Glover swore that a receipt was transmitted to the defendant and that the latter later acknowledged that he had received it. A photostatic copy of this check was received in evidence. Brown swore that he did not inform the defendant of this payment and that he intended it as a gift in appreciation of the defendant's act in returning the seized machine. Preston Hale, a witness for the defendant, under examination by the latter's attorney, swore that he was present when Brown handed Dunkle this check and that Brown at that time declared, "Coffey knew too much, that check ought to keep him quiet for a while."

The common-law rule concerning corroboration of an accomplice's testimony did not prevent conviction upon his sole testimony ( State v. Carr, 28 Or. 389, 42 P. 215; Wigmore on Evidence [2d Ed.] § 2056; 1 Chitty's Criminal Law, p. 605; Hawkins' Pleas of The Crown, p. 603), but operated as a caution against conviction upon his testimony alone (Wigmore on Evidence [2d Ed.] § 2056). The caution was based upon the unreliable source of the testimony and upon a fear that the confessed criminal might be attempting to gain the conviction of an innocent man through perjured testimony in exchange for his own immunity. The rule was flexible and was a part of the trial judge's comment upon the evidence. Its origin was in the period when the general penalty -death-inclined the judge to reach out for means of protecting the accused. Moreover, at that time the defendant could not testify and, therefore, could not deny the testimony offered by the witness who proclaimed himself a partner in crime with the defendant.

In many states, of which Oregon is one, statutes, without defining the word "accomplice," require that an accomplice's testimony must be corroborated, and thereby render invalid convictions based upon his noncorroborated testimony. Our statute is section 13-935, Oregon Code 1930.

The word "accomplice" is variously defined in the decisions of the courts. Sometimes it is held that an accomplice is one who can be indicted and punished under the same statute which has been invoked against the defendant. At other times it is said that an accomplice is one who has participated in the commission of the offense, or who, while not being present, nevertheless, in some manner, aided, advised, or encouraged the defendant to commit the crime. Manifestly, the second definition is more inclusive than the first. The decisions of this court have taken note of the multiple definitions given to this term; for instance, Mr. Justice Harris, in State v. Walters, 105 Or. 662, 209 P. 349, 352, declared: "There is no universally accepted definition of the term 'accomplice."' In 1 R.C.L. Accomplices, p. 156, § 2, the writer states that the meaning of the word "accomplice" "cannot be said to be settled."

The courts which hold that the term "accomplice" includes every person who somehow participated in the commission of the offense, even though he cannot be indicted for the offense charged against the defendant, experience great difficulty with the definition, due to its sweeping character. They are continually compelled to...