State v. Enloe

• Decision Date: 24 April 1934
• Citation: 31 P.2d 772,147 Or. 123
• Parties: STATE v. ENLOE et al.
• Court: Oregon Supreme Court

31 P.2d 772

147 Or. 123

STATE v. ENLOE et al.

Supreme Court of Oregon

April 24, 1934

Department 1.

Appeal from Circuit Court, Multnomah County; Jacob Kanzler, Judge.

Boyden H. Enloe and another were convicted of assault and battery and they appeal.

Affirmed.

George Neuner, of Portland (Neuner & Kimmell, of Portland, on the brief), for appellants.

George Mowry, of Portland (Lotus L. Langley and John Mowry, both of Portland, on the brief), for the State.

KELLY Justice.

During the events of this case, all of which transpired in the city of Portland, Or., defendants were dealers in slot machines each operating his business for himself and not associated therein with the other. One Clyde S. Betts was conducting a private detective agency. One Ben Wilson apprised Betts that two slot machines had been stolen from an establishment described as a bootleg joint. These stolen slot machines were owned by defendant Earl Wurzweiler. Betts made an agreement with Wurzweiler that he (Betts) would secure possession of the two stolen machines and return them to Wurzweiler at his place of business at 431 Glisan street, Portland, Or. At Betts' insistence Wurzweiler advanced $75 to Betts and agreed to pay him $10 in addition thereto upon the delivery of the machines.

Betts paid $50 to Wilson and Wilson says that he paid $40 to one Yeager. Wilson testified that he and Yeager stole the machines. Wilson took Betts' automobile, went with it to a hotel, where the machines had been cached, took them down the back stairs of the hotel, placed them in Betts' car and drove to Second and Washington streets, where Betts and one Simkins were in waiting. Betts and Simkins then took the auto and drove to Wurzweiler's establishment. There, they (Betts and Simkins) were directed to go into the back room where there were several men. It was in this room that the crime was committed of which defendants herein were convicted.

Defendants urge that the trial court erred in admitting in evidence the license issued to the prosecuting witness and his associate in business by the city of Portland authorizing them to conduct a detective agency in that city; and in permitting witnesses to testify as to arrangements between themselves in carrying on that business. The case of State v. Evans, 98 Or. 214, 234, 192 P. 1062, 193 P. 927, is cited to this point. In that case evidence was held to be immaterial, which disclosed that the prosecuting witness identified the defendant at any other time or place than at the time and place of trial. The court also disapproved the introduction of testimony of such identification on rebuttal.

The case of Pickrell v. State, 5 Okl. Cr. 391, 116 P. 957, 958, is also cited by defendants. There, over the objection of defendant, the county attorney repeatedly asked the defendant how many times a former employee of defendant had been convicted of crime. It is true that in that case Mr. Justice Doyle, speaking for the court, said: "Generally speaking, a private detective is not over-scrupulous in the truthfulness of his testimony." But it nowhere appears in that case that the court thought that when a witness is duly licensed to act in that capacity, such fact may not be shown as an aid in determining how much or how little credit should be accorded to his testimony.

In State v. Hill, 63 Or. 451, 128 P. 444, also cited by defendants, it was held that a letter written by accused to his mother was irrelevant and in the nature of a self-serving declaration.

In State v. Smith, 43 Or. 109, 71 P. 973, the exclusion of a self-serving declaration by defendant was upheld. In State v. McCann, 43 Or. 155, 157, 72 P. 137, it was held that what the prosecuting witness might have said after the altercation with defendant was no part of the res gestæ and therefore not admissible on that ground.

These authorities do not sustain defendants' position.

"Questions regarding the age, antecedents, business, and experience of a witness are largely within the discretion of the court; and, unless it manifestly appears that such questions are put for an improper purpose, such discretion is not reviewable on error." Cochran v. United States, 157 U.S. 286, 15 S.Ct. 628, 630, 39 L.Ed. 704.

Defendants also predicate error upon the admission in evidence of the coat worn by the prosecuting witness when he was assaulted and also upon the reception in evidence of an X-ray film showing an injury to the nose of the prosecuting witness.

The argument of defendants upon this phase of the case is that there was no dispute in the instant case of any assault and battery. In this, we are unable to agree with defendants. Their pleas of not guilty put in issue the allegation in the indictment that the prosecuting witness had been assaulted and beaten. We find no admission on defendants' part anywhere in the record which would have had the effect of relieving the state of the onus of proving such assault and battery. The quantum of proof on that disputed question is not for the defendants to control.

It does not appear just how or why the state should be charged, in advance of such action on defendants' part, with the effect of defendants' total failure to produce a scintilla of evidence tending to disprove that the prosecuting witness was the victim of a most cowardly and brutal beating.

Accompanied by the oral testimony as to the film by the diagnostician, and as to the coat by the expert on blood tests, these exhibits tend strongly to corroborate other evidence disclosing the degree of injury and the extent of the violence involved in the crime charged. No error was committed by the learned trial judge in receiving these exhibits in evidence. As to the admission in evidence of the tie and trousers, no point is attempted to be made by defendants.

State v. Kingsley, 137 Or. 305, 2 P.2d 3, 4, 3 P.2d 113, cited by defendants, is a homicide case, and there this court, speaking through Mr. Justice Brown, said: "But, in any event, the clothing worn by the person killed or by the accused may be introduced in evidence in a prosecution for the killing, whenever it may in any way aid in explaining or determining any disputed question in connection therewith. Wharton on Homicide (3d Ed.) § 610."

State v. McKnight, 21 N.M. 14, 153 P. 76, 82, cited by defendants, in an exhaustive and scholarly opinion by Mr. Justice Hanna, states the rule thus: "*** It is a well-settled principle that, in homicide cases the clothing of the victim, when properly identified, may be produced as demonstrative evidence on the theory that it is a part of the res gestæ, and tends to inform the jury of the character and nature of the wounds, the motive of the crime, the manner and means of death, the proximity of the defendant and the deceased when slain. Underhill on Criminal Evidence, § 48."

Aldridge v. State (Tex. Cr. App.) 241 S.W. 145, also cited by defendants, is a homicide case in which the defendant himself testified that he had done the killing. The defendants also cite Flege v. State, 93 Neb. 610, 142 N.W. 276, 47 L. R. A. (N. S.) 1106.

All of the cases, cited by defendants, on this point are homicide cases where the death itself is easily and undeniably established, while the case at bar deals with an alleged assault and battery alleged to have been committed under circumstances requiring of the state cogent proof.

Defendants contend that the learned trial court erred in overruling their motion for a directed verdict.

In dealing with this contention, we must bear in mind section 14-1002, Oregon Code 1930, which is as follows: "All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the crime, or aid and abet in its...