State v. Flett

• Decision Date: 10 April 1963
• Citation: 94 A.L.R.2d 1082,380 P.2d 634,234 Or. 124
• Parties: , 94 A.L.R.2d 1082 STATE of Oregon, Respondent, v. Evelyn B. FLETT, true name Evelyn A. Flett, Appellant.
• Court: Oregon Supreme Court

Page 634

380 P.2d 634

234 Or. 124, 94 A.L.R.2d 1082

STATE of Oregon, Respondent, v. Evelyn B. FLETT, true name Evelyn A. Flett, Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted March 5, 1963.

Decided April 10, 1963.

David G. Frost and Mervin W. Brink, Hillsboro, argued the cause and filed briefs for appellant.

Francis W. Linklater, Dist. Atty., Hillsboro, argued the cause for respondent. With him on the brief was Richard Smurthwaite, Deputy Dist. Atty., Hillsboro.

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

GOODWIN, Justice.

Evelyn A. Flett was indicted for the crime of second-degree murder and was convicted of the included crime of manslaughter. She appeals.

The facts are obscure. There were no witnesses to the killing except the defendant. The state attempted to prove that the defendant purposely stabbed her husband with a paring knife. The defendant contended the killing was an accident. The state did not allege or attempt to prove premeditation.

The marriage was brief and turbulent. The evidence suggests that both parties drank excessively. The killing occurred during a quarrel. The state tried to persuade the jury that the quarrel was provoked by the defendant's behavior. She had spent two nights that week with another man. The defendant claimed the quarrel was more or less routine. She said the stabbing was an accident that occurred when the deceased pulled her hand, which held the knife, against his rib cage with fatal consequences.

We will assume that the state may use evidence of a defendant's recent marital infidelity in a proper case. Reversible error, however, entered this case when the court permitted the state, over the objection of the defendant, to put on the testimony of a neighbor woman who said that the defendant had told her several months before the killing that the defendant had spent the night in a motel with an unidentified man.

It is apparently the majority view in this country that a person charged with killing his or her spouse can be shown to have committed acts of marital infidelity. There are a great number of such cases, collected in 40 C.J.S. Homicide § 229, p. 1160; 26 Am.Jur. 373, Homicide § 323; 2 Wigmore, Evidence 331, § 390 (3d ed., 1940). There are also cases which exclude remote acts of indiscretion. See, e. g., State v. Knox, 236 Iowa 499, 510, 18 N.W.2d 716 (1945) (3 years before); Commonwealth v. Burke, 339 Mass. 521, 534, 159 N.E.2d 856, 864, 77 A.L.R.2d 451 (1959) (7 months). Also excluded were isolated incidents held irrelevant in Adams v. Commonwealth, 274 Ky. 714, 120 S.W.2d 237, 243 (1938); Frasure v. Commonwealth, 245 Ky. 127, 53 S.W.2d 204 (1932); People v. Harris, 209 N.Y. 70, 77, 102 N.E. 546 (1913).

We believe the controlling rule is found in our own recent case of State v. Kristich, 226 Or. 240, 359 P.2d 1106 (1961). When highly prejudicial evidence is offered, its relevancy, i. e., its tendency to prove an issue in dispute, must be weighed against the tendency of the offered evidence to produce passion and prejudice out of proportion to its probative value. The rule has been followed in later cases which have made it clear that the matter is largely within the sound discretion of the trial court. See, e. g., State v. Freeman, Or., 374 P.2d 453 (1962) (gruesome evidence held admissible).

The reason for permitting the state to prove acts of marital infidelity is the supposition that such evidence may have some slight probative value. In a first-degree murder case, which this is not, such evidence is thought to be relevant to prove motive. Where the killing is not alleged to be a premeditated affair, but where ill will toward the deceased spouse may be an issue, the evidence is thought to be relevant to prove ill will. In this case, ill will was an issue. However, the connection between isolated acts of marital infidelity and the purposeful slaying of a spouse is extremely tenuous in any case. Here the record reveals that excessive drinking and quarreling were routine weekend activities. There is no evidence that the hostility, if any, of one spouse toward the other had anything to do with marital fidelity. Under these circumstances, while it may not have been an abuse of discretion to permit the state to show the misconduct that occurred a day or two before the killing, it was clearly an abuse of discretion to let the district attorney roam out over the countryside with his proof of remote acts of indiscretion that could have had nothing to do with the issues the jury was called upon to decide.

The record admits of no inference but that the district attorney was attempting to blacken the defendant's character by proof of collateral misconduct having so little to do with the crime as to be virtually irrelevant. We have recently held that a person accused of burglary cannot be shown to have negotiated the bank checks stolen in the burglary, because such conduct is a separate crime. State v. Gardner, 225 Or. 376, 358 P.2d 557 (1961). A fortiori, a person accused of stabbing her husband should not be called...