State v. Ewing

• Decision Date: 01 May 1944
• Citation: 149 P.2d 765,174 Or. 487
• Parties: STATE <I>v.</I> EWING
• Court: Oregon Supreme Court

174 Or. 487

149 P.2d 765

STATEv.

EWING

Supreme Court of Oregon.

Argued at Pendleton May 1, 1944.

Reversed June 20, 1944.

Indictment and information

1. An indictment, alleging that defendant had a venereal affair with named male person and then and there sustained osculatory relations with such person's private parts, and so "did in the manner and form aforesaid commit and perpetrate the detestable crime of sodomy," was not demurrable as charging three distinct crimes of sodomy, sex perversion and osculatory relationship, but charged only one act specifically prohibited by statute, viz., that respecting osculatory relations, regardless of whether such offense is within common-law definition of sodomy.

Criminal law

2. In prosecution for sustaining osculatory relations with male person's private parts, court erred in failing to require specific election by state between several similar prohibited acts, to which prosecuting witness testified, before prosecution's final rebuttal argument, and in giving instructions failing to limit jury to consideration of act committed on day alleged in indictment or any single prohibited act.

Criminal law

3. In prosecution for sustaining osculatory relations with male person's private parts, evidence of other such acts between defendant and prosecuting witness than that specifically charged in indictment was inadmissible, in absence of clear showing of which of such acts was relied on for conviction and proper limitation of purpose and effect of other acts, but it was not incompetent for state to prove other similar criminal acts between defendant and such witness.

Criminal law

4. In prosecution for particular offense, evidence tending to show defendant's guilt of another distinct offense, not connected with crime charged, is inadmissible, unless evidence of collateral crime tends to prove crime charged, and evidence relevant to issue is not inadmissible merely because it tends to prove commission of another crime.

Criminal law

5. In trial of one charged with any form of illicit sexual intercourse, evidence of same parties' commission of similar crimes is admissible to prove accused's inclination to commit act charged.

Criminal law

6. In prosecution for crime against nature, evidence that defendant committed same offense in same way with others than prosecuting witness is inadmissible to prove defendant's inclination

to commit act charged, and evidence of other offenses of dissimilar character by defendant is likewise inadmissible.

Criminal law

7. In prosecution for sustaining osculatory relations with male person's private parts, defendant's testimony in chief that he did not remember names of boys with whom he had been accused of committing similar offenses and did not know any reason why he should be doing things charged was insufficient to put his character in issue and authorize introduction of evidence of his bad moral character or commission of other offenses.

Criminal law

8. Evidence of accused's bad character is admissible only if he has already put his character clearly and expressly in issue.

Criminal law

9. In prosecution for sustaining osculatory relations with a boy's private parts, defendant's testimony on cross-examination that his make-up was such that he would not attempt or think about doing such a thing as act charged did not put his character clearly and expressly in issue, and further cross-examination of defendant concerning similar specific acts of misconduct with other boys was improper either to show his bad character or disprove his statement that he would never think of such a thing.

Witnesses

10. Cross-examination of defendant in criminal case is limited to testimony given on his examination in chief and to facts and circumstances apparently germane to such testimony.

Witnesses

11. Cross-examination of defendant in criminal case is confined to relevant matters and facts to which he has testified tending to his conviction or acquittal.

Criminal law

12. In prosecution for sustaining osculatory relations with male person's private parts, state police officer's testimony that defendant, after being informed that he was charged with sodomy, said he was guilty of act charged and would like to plead guilty immediately, was admissible as evidence of confession of sodomy apparently related to act charged in indictment.

Criminal law

13. In prosecution for sustaining osculatory relations with male person's private parts, testimony that defendant told witness that prosecuting witness had sustained such relations with defendant's private parts was admissible as relating directly to relations between defendant and prosecuting witness, whether it referred to act charged in indictment or to earlier act.

Witnesses

14. In prosecution for sustaining osculatory relations with male person's private parts, an affidavit of another than prosecuting witness concerning defendant's misconduct with affiant was inadmissible in evidence to impeach affiant after his refusal as witness to verify statements in affidavit, as evidence of defendant's offenses, with others than prosecuting witness was collateral and inadmissible.

Infants

15. At common-law there is rebuttable presumption that children between seven and 14 years old are without criminal capacity.

Criminal law

16. An infant prosecuting witness, possessing and exercising sufficient mentality to make intelligent choice, having knowledge of right and wrong and of wrongfulness of act charged, and voluntarily agreeing thereto, is accused's "accomplice."

Criminal law

17. In prosecution for sustaining osculatory relations with private parts of 13 year old boy, whether such boy was defendant's accomplice was question for jury, in view of presumption that children between seven and 14 years old are without criminal capacity, the boy's age, and testimony.

Indictment and information

18. In prosecution for sustaining osculatory relations with boy's private parts, the state, proving several acts of misconduct by defendant with such boy, should elect to stand on some one specific act and occasion before close of its case in chief, and court's instructions to jury should differentiate corroborative acts tending to show defendant's inclination or lustful disposition toward prosecuting witness from specific act relied on for conviction, though state need not prove commission of such act on date stated in indictment.

                  Evidence of other crimes in prosecution for sex offense, note
                63 A.L.R. 610. See, also, 48 Am. Jur. 552
                  22 C.J.S., Criminal Law, § 682
                

Before BAILEY, Chief Justice, and BELT, LUSK, BRAND and HAY, Associate Justices.

Appeal from Circuit Court, Grant County.

ROBERT M. DUNCAN, Judge.

Leland Stanford Ewing was convicted of sustaining osculatory relations with the private parts of a male person, and appeals.

REVERSED.

Charles W. Swan, of Vale, for appellant.

Blaine Hallock, of Baker (I.H. Van Winkle, Attorney General and J.M. Blank, District Attorney, of Canyon City, on the brief), for respondents.

BRAND, J.

The defendant was tried, found guilty, and sentenced upon an indictment, the charging part of which is as follows:

"`The said Leland Stanford Ewing on the 15th day of September, A.D., 1941 in the said County of Grant and State of Oregon, then and there being, did then and there unlawfully and feloniously and against the order of nature, have a certain venereal affair with a human being, to-wit: W.L. Miller, the said W.L. Miller being a male person, and the said Leland Stanford Ewing, did then and there sustain osculatory relations with the private parts of the said W.L. Miller, and so the said Leland Stanford Ewing did in the manner and form aforesaid, commit and perpetrate the detestable crime of sodomy, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.'"

Before the trial, the defendant had demurred to the indictment upon the alleged ground that more than one crime was charged therein. The overruling of that demurrer forms the basis upon which defendant makes his first assignment of error in this appeal.

BRAND, J.

1. The defendant contends that the indictment charges three distinct crimes: sodomy, sex perversion, and osculatory relationship. The assignment is without merit. The preliminary allegation in the indictment that on the 15th day of September the defendant did "have a certain venereal affair with a human being" et cetera, does not sufficiently allege any crime listed in our statutes. The only specific charge is to be found in that portion of the indictment which alleges that the defendant did "then and there" (referring to the time and place of the alleged "venereal affair") "sustain osculatory relations" with W.L. Miller, as more particularly set forth. The indictment continues "and so" (italics ours) the defendant did "in the manner and form aforesaid, commit * * *" the crime of sodomy. It is clear that the phrase, "in the manner and form aforesaid," refers to the specific charge which precedes it and cannot be construed as charging any other offense.

Whether the offense which was specifically charged comes within the common law definition of sodomy is immaterial. The statute provides:

"Sodomy. If any person shall commit sodomy or the crime against nature, or any act or practice of sexual perversity, either with mankind or beast, or sustain osculatory relations with the private parts of any man, woman or child, or permit such relations to be sustained with his or her private parts, such person shall upon conviction thereof, be punished by imprisonment in the penitentiary not less than one year nor more than fifteen years." O.C.L.A. § 23-910.

The indictment charges but one act which is within the specific prohibition of the statute. If the act charged was inaccurately called sodomy, the mistake is immaterial. However, in the case of State v. Start, 65 Or. 178, 132 P. 512, it was held...