State v. Fischer

• Decision Date: 28 November 1962
• Citation: 232 Or. 558,376 P.2d 418
• Parties: STATE of Oregon, Respondent, v. Margaret Arnell FISCHER, Appellant.
• Court: Oregon Supreme Court

Page 418

376 P.2d 418

232 Or. 558

STATE of Oregon, Respondent, v. Margaret Arnell FISCHER, Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted Nov. 7, 1962.

Decided Nov. 28, 1962.

John O. Sheldahl, Oregon City, argued the cause for appellant. On the brief were Sheldahl & Misko, Oregon City.

William E. Schumaker, Dist. Atty., argued the cause and filed a brief for respondent.

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

GOODWIN, Justice.

A jury found Margaret Arnell Fischer guilty of manslaughter in the death of her husband by gunshot wound. She appeals from the resulting judgment.

The first assignment of error concerns the introduction into evidence of certain oral and written statements the defendant had given to the police. She contends that the state had not adequately proven the corpus deliciti prior to the introduction of these statements; she then says that it was prejudicial error to receive them. The contentions are based on the defendant's understanding of ORS 136.540(1), which reads in part: 'nor is a confession only sufficient to warrant his conviction without some other proof that the crime has been committed.' The statements which were introduced were confessions within the meaning of ORS 136.540(1). State v. Weston, 102 Or. 102, 113, 201 P. 1083.

The assignment of error appears to challenge only the order of proof. If we take the assignment literally, it is a contention that the court somehow failed to observe the general rule that the state should prove the corpus delicti before it proceeds with any evidence of a confession. The order of proof is within the sound discretion of the trial court. State v. Weston, supra. There is no need in this case to question the court's exercise of its discretion, for the confessions were not introduced until after the state had produced all of its other evidence. The assignment of error is, if taken literally, wholly without merit.

Treating the assignment of error as if it were a challenge to the sufficiency of the proof of corpus delicti, which was, no doubt, the defendant's intent, there was still no error. Proof of the corpus delicti in a homicide case requires proof that the death of a human being was caused by the criminal conduct of another. State v. Weston, supra. Such proof may rest wholly upon circumstantial evidence. State v. Williams, 46 Or. 287, 297, 80 P. 655. It is not necessary that the state prove its case beyond a reasonable doubt independently of the confessions. State v. Wilkins, 72 Or. 77, 142 P. 589. The weight of the evidence is for the jury. It is sufficient if the independent evidence on the issues of death and criminal agency makes out a question for the jury. State v. Bodi, 223 Or. 486, 492, 354 P.2d 831 (1960); 3 Wigmore, Evidence 404, § 2073. Cf. State v. Watts, 208 Or. 407, 301 P.2d 1035 (1956), where there was virtually no proof of the commission of a crime.

The sole issue in this case on the sufficiency of proof of corpus delicti concerns the element of criminal agency. If the independent evidence did not give the jury a foundation upon which it could find that death was caused by a criminal act, then the state was not entitled to use the defendant's confessions. State v. Bodi, supra.

From the independent circumstantial evidence in this case, the jury could have found the following to be the facts:

(1) The deceased was killed by a bullet from a .22 caliber pistol.

(2) The pistol that fired the bullet was found by the police underneath the mattress where the defendant slept.

(3) The death occurred on October 8, 1961, between the hours of 7:45 and 11:45 p. m., and was discovered by a third party shortly after 3:20 p. m. on October 9, 1961, when the defendant telephoned a friend and asked her to come to defendant's house.

(4) The house where deceased was found was locked and no one entered or left the house between the time of the decedent's death and the discovery thereof by others some sixteen or more hours later.

(5) Defendant was in the house alone with deceased before and after the death of the deceased for some sixteen or more hours without calling for help or otherwise making the events known.

The foregoing facts were sufficient to permit a jury to draw an inference that death was caused by an agency other than suicide or accident. The probabilities under the facts outlined could be, and no doubt were, debated before the jury. It was the jury's duty to weigh the probabilities. Viewing the matter most favorably to the defendant, there was a jury question on criminal agency. No error can be found in connection with corpus delicti.

Defendant also assigns error to the denial by the trial court of a motion to dismiss the indictment and to the denial by the trial court of a motion for a directed verdict of acquittal. Both assignments are without merit. We have already seen that there was sufficient independent evidence of the corpus delicti to go to the jury. Added thereto was the defendant's confession. She said that following a brief struggle with her husband she wrested the gun from his possession, stepped back and fired. That is at least manslaughter, in the absence of facts making the homicide justifiable. There was no error in denying defendant's motions. Testimony concerning self-defense was for the jury to consider. It apparently chose not to believe the defendant.

The defendant further contends that it was error to refuse to strike the testimony on rebuttal of Sheriff Shobe. On redirect examination the defendant had been asked if the written statement which she had given the police and which was then in evidence contained her exact words. She replied that it did not. She specifically denied making the remark that 'I don't remember whether I cocked the gun or not, but I just backed up and shot.' Instead she claimed that the words were those of Deputy Sheriff Wampler. The state, in rebuttal, called witness Shobe, who testified that on the day following her arrest the defendant had told him that she 'had wrestled the gun away from her husband, stepped back and pulled the trigger and fired.' Defendant now contends that since this could have been part of the state's evidence-in-chief, it could not have been proper rebuttal. The state points out that the contention is a non sequitur. The state says that Shobe's testimony was made necessary by the defendant's testimony that Wampler rather than the defendant was the author of the statement.

This court has recognized that in some circumstances it may be prejudicial error to allow evidence in rebuttal when the evidence should have been part of the state's case-in-chief. State v. Minnick, 54 Or. 86, 94, 102 P. 605 (1909); State of Oregon v. Hunsaker, 16 Or. 497, 19 P. 605 (1888). The evidence introduced by the state through the witness Shobe could indeed have been used as a part of the state's case-in-chief. It would have been cumulative, but it was relevant. It does not follow, however, that the same evidence could not also be used in rebuttal when it became material to contradict the defendant's own testimony. Rebuttal testimony should be limited to evidence made necessary by the opponent's evidence. It is within the sound discretion of the trial court to...