State v. Ely

• Decision Date: 18 March 1964
• Citation: 237 Or. 329,390 P.2d 348
• Parties: STATE of Oregon, Respondent, v. John W. ELY, Appellant.
• Court: Oregon Supreme Court

Page 348

390 P.2d 348

237 Or. 329

STATE of Oregon, Respondent, v. John W. ELY, Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted Jan. 7, 1964.

Decided March 18, 1964.

George H. Proctor and Joseph W. Hagler, Klamath Falls, argued the cause for appellant. On the brief were Proctor & Puckett, Klamath Falls.

J. R. Thomas, Deputy Dist. Atty., Klamath Falls, argued the cause for respondent. With him on the brief were Dale Crabtree, Dist. Atty., and Sam A. McKeen, Deputy Dist. Atty., Klamath Falls.

Before McALLISTER, C. J., and ROSSMAN, PERRY, GOODWIN and LUSK, JJ.

GOODWIN, Justice.

Defendant was convicted of violating ORS 167.210 (contributing to the delinquency of a child) and appeals.

The first assignment of error challenges the sufficiency of the indictment, which reads in material part as follows:

'* * * The said JOHN W. ELY commencing on or about the month of January, 1962 through March 1962, a more exact description of the period of time being unknown to the Grand Jury, in the said County of Klamath and State of Oregon, then and there being, did then and there wilfully unlawfully and feloniously, do and perform acts and follow a course of conduct which did manifestly then and there tend to cause one * * * to become a delinquent child to-wit: 1. The said John W. Ely did then and there manipulate the private parts of the said * * *; 2. The said John W. Ely did then and there cause the said * * * to manipulate the private parts of the said John W. Ely * * *.'

The foregoing language is said to charge more than one crime. It does not. It charges one crime, the doing of acts which did manifestly tend to cause a child to become a delinquent, and it charges that crime by alleging specifically two distinct acts. State v. Casson, 223 Or. 421, 354 P.2d 815 (1960) holds that the state may in general statutory language charge the crime of contributing to the delinquency of a minor and may then lay under the videlicet (to-wit:) as many specific constituent acts as the grand jury thinks the evidence will prove. Each act, however, must be an act of the character denounced by the statute and each act so pleaded must be part of the same criminal episode (State v. Palmer, 232 Or. 300, 375 P.2d 243 (1962)) or scheme (State v. Casson, supra). The indictment was drawn in keeping with the foregoing rules and was not vulnerable to demurrer.

Another assignment of error challenges the receipt in evidence of a signed statement in which the defendant admitted in substance the acts charged in the indictment. We will treat the statement as a confession. The defendant gave the statement at a time when he was not in custody. The defendant was a school teacher. He gave the statement to his school principal, the local school superintendent, and the father of the boy. The state urges that since the confession was made when the defendant was not in custody, and was made to private citizens, there is no question about its admissibility. The state also argues that in any event the circumstances surrounding the taking of the confession established that the confession was voluntary despite certain ambiguous language used in obtaining it.

A correct interpretation of our own cases, as well as those decided in the federal courts, would require the exclusion of an involuntary confession, whether made to law enforcement officers or to other persons. State v. Green, 128 Or. 49, 61-62, 273 P. 381 (1929). The fundamental question is whether the confession is the product of the free exercise of the confessor's will. State v. Shipley, 232 Or. 354, 362, 375 P.2d 237 (1962), cert. den. 374 U.S. 811, 83 S.Ct. 1701, 10 L.Ed.2d 1034 (1963). See, for a more recent exposition of the rule on involuntary confessions, Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963).

In this state, confessions and admissions are initially deemed to be involuntary. Before either can be received in evidence, the state has the burden of showing that it was voluntarily made, without the inducement of either fear or hope. ORS 136.540; State v. Rollo, 221 Or. 428, 432, 351 P.2d 422 (1960); State v. Nunn, 212 Or. 546, 552, 321 P.2d 356 (1958).

The trial court, out of the presence of the jury, took the testimony bearing upon the defendant's confession. After it heard the relevant testimony and the arguments of counsel, the trial court ruled that the state had made a prima facie showing of volunariness. The confession accordingly was received in evidence.

In the present case, the circumstances surrounding the confession were described only by the state's witnesses. Their testimony was not disputed. The defendant offered no evidence. We are, therefore, required to test the legal sufficiency of the state's evidence to determine whether, as a matter of law, the state proved that the confession was prima facie a voluntary one.

The testimony revealed that prior to any conversation with the defendant the boy's father had reported to the school officials the boy's version of the acts described in the indictment. Shortly thereafter the boy's father, the school superintendent, and the principal of the school where the defendant was employed confronted the defendant. They asked him about the boy's charge. The defendant admitted to the group that the charges were 'partly true.' He was then asked to make a signed statement.

Both the school superintendent and the principal testified that they had warned the defendant that they could not guarantee that someone else might not prosecute him. They assured him only...