State v. Harvey

• Decision Date: 23 February 1926
• Citation: 242 P. 440,117 Or. 466
• Parties: STATE v. HARVEY.
• Court: Oregon Supreme Court

242 P. 440

117 Or. 466

STATE v. HARVEY.

Supreme Court of Oregon

February 23, 1926

Department 2.

Appeal from Circuit Court, Multnomah County; John C. Kendall, Judge.

Corwin Harvey was convicted of the crime of contributing to delinquency of a child of the age of 14 years, and he appeals. Affirmed.

Corwin Harvey, the defendant, was accused by a complaint filed in the court of domestic relations for Multnomah county of the crime of contributing to the delinquency of a child of the age of 14 years. The complaint, after alleging the venue avers that--

"The said Corwin Harvey did then and there * * * unlawfully and willfully place his private parts between the legs of * * * John Franklin Andrews, which said act did manifestly then and there tend to cause the said John Franklin Andrews to become a delinquent child. * * *"

The complaint was signed by the district attorney. Upon that instrument appears the following verification:

"State of Oregon, County of Multnomah--ss.:

"I A. F. Henshaw, having been first duly sworn, say the foregoing complaint is true, as I verily believe.

A. F Henshaw.

"Subscribed and sworn to before me this 5th day of November, A. D. 1924.

"Jacob Kanzler, Judge."

On trial the defendant was found guilty. Appeal was taken to the circuit court for Multnomah county, Or., where he was again found guilty, and from the judgment there rendered he has appealed to this court, alleging that the court erred in overruling the demurrer to the complaint; in denying the motion to quash the complaint and dismiss the proceedings; in overruling defendant's motion for a directed verdict of not guilty; in holding that the court of domestic relations had jurisdiction to try the case; in its instructions to the jury; and in its ruling upon the admissibility of testimony.

H. H Riddell, of Portland (W. H. Fowler, of Portland, on the brief), for appellant.

Jay H. Stockman, Deputy Dist. Atty., of Portland (Stanley Myers, Dist. Atty., and George D. La Roche, Deputy Dist. Atty., both of Portland, on the brief), for the State.

BROWN, J. (after stating the facts as above).

"The judicial power of the state shall be vested in one Supreme Court and in such other courts as may from time to time be created by law." Or. Const. art. 7, § 1a. The law has created the court of domestic relations, which court "shall have original and exclusive jurisdiction * * * in all proceedings for the apprehending, trial and punishment of persons charged with contributing to the delinquency or dependency of minors, as defined and set out in sections 2150-2154, inclusive." Or. L. § 9787. At section 9793, the court of domestic relations is empowered to make rules and regulations regarding the practice and procedure therein. Under the law, any person who shall contribute to the delinquency of a child, or who "shall do any act which manifestly tends to cause any child to become a delinquent child," is deemed guilty of a misdemeanor. Clearly, the offense charged comes within the embrace of the sections of the Code above noted. It follows that the court of domestic relations had original and exclusive jurisdiction of the act denounced in the complaint.

The objection that the complaint is not properly verified is without merit. The complaint positively charges the defendant with the commission of a crime; and, by his solemn oath, the informant swears, among other things, that "the foregoing complaint is true, as I verily believe." We are aware that, in some jurisdictions, the verification, "as I verily believe," would be deemed insufficient; but, in this jurisdiction, such form of verification of a positive charge has always been held to be sufficient.

The defendant moved the court for a directed verdict of acquittal upon the ground of the complicity of John Franklin Andrews, alleged to have been the wronged "child." When that motion was made the testimony in regard to the offense was undisputed, and the complicity of the witness was squarely before the court to determine as a question of law. State v. Weston, 219 P. 180, 109 Or. 19. and local citation. In denying the defendant's motion, the trial court evidently considered that the "child" witness was the defendant's victim, and not his accomplice. In reaching this determination, the court was clearly acting within the discretionary power conferred by law. The trial judge had observed this 14 year old lad when upon the witness stand and was especially qualified to determine whether the boy was an accomplice or a victim. A girl who attempts to consent to her own ruin in a case of statutory rape is not an accomplice. By the same reasoning it seems to the writer that, if the testimony of the witness is true, the little boy was a victim and not an accomplice.

The appellant says there was no proof that the crime alleged to have been committed was committed in Multnomah county.

"The accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed." Or. Const. art. 1, § 11.

Therefore, the venue of the offense is a material allegation of the complaint and must be proved to the satisfaction of the jury beyond a reasonable doubt. We have carefully read all the testimony relating to venue and find some evidence to the effect that the flagrant act took place at 1640 Division street, Portland, Multnomah county, Or. From a consideration of the evidence adduced, we are of opinion that the jury was enabled to infer that the offense charged, if committed at all, was committed in Multnomah county.

On direct examination, Dr. McCollom testified to the good character of the accused. Upon cross-examination he was asked:

"As a matter of fact, didn't you know that he (defendant) was convicted before Judge Campbell in the circuit court at Oregon City of a similar offense?"

The defendant's good character, when placed in issue by himself, could only be proved by general reputation, and evidence of particular acts or conduct was inadmissible, whether on direct or on cross examination. However, considerable latitude is allowed the cross-examiner; and, in the sound discretion of the court, for the purpose of testing the accuracy, veracity, or credibility of a witness, the cross-examiner may ask such witness as to whether or not he had heard of defendant's former conviction. Such question is not for the purpose of proving that the defendant had committed another crime, but for the purpose of testing the ability of the witness to give accurate testimony. State v. Bateham, 186 P. 5, 94 Or. 524; Ingram v. State, 67 Ala. 67; White v. State, 21 So. 330, 111 Ala. 92; People v. Moran, 77 P. 777, 144 Cal. 48; Cook v. State, 33 So. 665, 46 Fla. 20; State v. Dickerson, 82 N.E. 969, 77 Ohio St. 34, 13 L. R. A. (N. S.) 341, 122 Am. St. Rep. 479, 11 Ann. Cas. 1181.

We have now reached the serious question in the case. The defendant asserts that a judgment of conviction, without arraignment or plea to the charge contained in the complaint, is invalid. There are many decisions that can be marshaled in support of defendant's proposition. See State v. Walton, 91 P. 490, 50 Or. 142, 13 L. R. A. (N. S.) 811; State v. Walton, 91 P. 495, 51 Or. 574.

When the accused is charged with a felony, he is required to be personally present at the arraignment. State v. Donahue, 144 P. 755, 147 P. 548, 75 Or. 409, 5 A. L. R. 1121. But, if charged with the commission of a misdemeanor only, he may appear by counsel. Or. L. § 1470. See State v. Waymire, 97 P. 46, 52 Or. 281, 21 L. R. A. (N. S.) 56, 132 Am. St. Rep. 699; State v. Sullivan, 98 P. 493, 52 Or. 614; Curran v. State, 99 P. 420, 53 Or. 154; State v. Holloway, 110 P. 397, 791, 57 Or. 162. The record fails to show affirmatively that the defendant pleaded to the charge contained in the complaint. It does show conclusively, however, that the defendant understood the nature of the offense with which he was charged. He moved to dismiss the complaint. He likewise answered the complaint by demurring thereto. He appeared with counsel and seems to have exercised statutory rights upon arraignment. He made no objection to entering upon the trial. He took part in selecting the jury. He took the witness stand and denied the charge. He seems to have awaited the verdict of the jury. There is much authority holding that under facts such as exist in the case at bar, the accused has waived all valid objections arising from the failure of the record to show the entry of a plea. "In some jurisdictions it has been held that one who is indicted for a felony cannot, either personally or by attorney, waive arraignment and plea. Generally, however, arraignment in the case of misdemeanors may be waived, and a waiver will be implied if accused proceeds to trial in the usual manner without objection. Moreover, many of the courts have departed from the old practice, even in cases of felony, and now permit an arraignment to be waived, not only by an express waiver, but also by acts equivalent thereto. * * *" 16 C.J. § 720, Crim. Law.

In the case of State v. Walton, supra, the defendant was charged with the commission of a felony, and the court especially comments upon the fact that he was sentenced to serve a long term in the penitentiary. The first case cited in the appellant's brief filed in this court in the Walton Case is that of Crain v. United States, 16 S.Ct. 952, 162 U.S. 625, 40 L.Ed. 1097, and the court, in rendering its decision in that case, refers to the Crain Case. The opinion in the Crain Case, however, was rendered by a divided court and since its rendition it has been overruled by the case of Garland v. State of Washington, ...