State v. Cole
| Decision Date | 12 October 1966 |
| Parties | STATE of Oregon, Respondent, v. Steven COLE, Appellant. |
| Court | Oregon Supreme Court |
John Toran, Jr., Portland, argued the cause and filed briefs for appellant.
Jacob B. Tanzer, Deputy Dist. Atty., Portland, argued the cause for respondent. On the brief were George Van Hoomissen, Dist. Atty., and George M. Joseph, Deputy Dist. Atty., Portland.
Before McALLISTER, C.J., and SLOAN, GOODWIN, HOLMAN, and LUSK, JJ.
The defendant was indicted on two charges--rape, by carnally knowing a female under the age of 16 years, and contributing to the delinquency of a minor. During the trial, the court, on motion of the state, withdrew the charge of contributing to the delinquency of a minor. The jury found the defendant guilty of statutory rape and the defendant has appealed.
The first and second assignments of error relate to the same question and will be considered together. ORS 163.210(1) reads in part: 'Any person over the age of 16 years who carnally knows any female child under the age of 16 years * * * is guilty of rape * * *.' After the state rested its case the defendant moved for a directed verdict on the ground that the state had failed to prove that the defendant was over the age of 16 years. The court, on motion, permitted the state to reopen its case so as to furnish such proof. The defendant says that the ruling was error and prejudicial and that in any event the proof of defendant's age adduced was insufficient.
There was no need for the state to reopen its case, as the age of the defendant is not required to be alleged in the indictment and, in fact, was not alleged. If the defendant was below the requisite age that was a matter of defense: State v. Nesmith, 136 Or. 593, 595--596, 300 P. 356; State v. Knighten, 39 Or. 63, 64 P. 866, 87 Am.St.Rep. 647. The reason for this rule is fully and clearly explained in the cases cited. The court instructed the jury in this case that the state must prove that the defendant was over the age of 16 years. The sum of the matter is that, whatever error was committed was error in favor of the defendant, not against him.
Another assignment of error is directed to the court's withdrawal of the charge of contributing to the delinquency of a minor. Counsel for defendant objected to the court's action for the reason that 'this matter comes too late' and 'the proper order in this case would have been to have directed a verdict against the State.' The motion to withdraw and its allowance came before the court instructed the jury. Since there was ample evidence to support the charge of statutory rape and it does not appear that the defendant was in any way prejudiced by the withdrawal of the other charge...
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