State v. Hogg

• Decision Date: 14 January 1913
• Parties: STATE v. HOGG.
• Court: Oregon Supreme Court

129 P. 115

64 Or. 57

STATE v. HOGG.

Supreme Court of Oregon

January 14, 1913

Appeal from Circuit Court, Union County; J.W. Knowles, Judge.

William Hogg was convicted of rape, and he appeals. Reversed.

Turner Oliver, of La Grande, for appellant.

F.S Ivanhoe, Dist. Atty., of La Grande, for the State.

BURNETT J.

Among others, the court gave to the jury the following charge "I instruct you, gentlemen of the jury, that if you believe from the evidence at the time of the alleged rape other people were at the same time in the immediate vicinity who might easily have heard her had she made any outcry, and that she in fact made no outcry at the time the defendant was attempting to have connection with her, these facts will tend to raise a presumption that no rape was committed upon her at the time, unless she has satisfactorily explained why she did not make an outcry or call for help at the time." The instruction was given as requested by the defendant, except the added clause "unless she has satisfactorily explained why she did not make an outcry or call for help at the time." The defendant excepted to this amendment, and it is objectionable on two grounds. The first is that there was no evidence or pretense that the prosecutrix had attempted to explain why she did or did not make an outcry or call for help. After she had been examined and re-examined by both the prosecution and the defense, she finally testified that she holloed several times. Her testimony in part was that the defendant came to her father's residence, which is a short distance from the home of the defendant's sister, who is married, and told the prosecutrix that his sister wanted to see her. She then accompanied the defendant across the fields towards his sister's house instead of going by the road leading from one place to the other. The prosecutrix says that just before arriving at their destination the defendant seized her, pulled her into what she calls a chicken house, a building 165 feet from the sister's dwelling house, laid her upon the ground, and consumed a half of an hour in performing the sexual act. She says, too, that after he let her up she went to the house and asked the defendant's sister what she wanted and was told by that lady that nothing was wanted of her. She then returned to her father's house in company with the defendant, who mounted his horse which he had left there and rode away, and she soon afterwards, at the questioning of her parent, told him what had occurred. The sister, although at home during this time, denied that the prosecutrix had been at her house or that she had seen or spoken to her at all on the occasion mentioned. The defendant utterly denied the charge. As stated, there was no evidence of any explanation by the prosecutrix about making or not making an outcry. In this respect therefore the instruction was an abstract direction not justified by the testimony, and hence, under many authorities in this state, it was erroneous. Breon v. Henkle, 14 Or. 494, 13 P. 289; Woodward v. O.R.N. Co,, 18 Or. 289, 22 P. 1076; State v. Bowker, 26 Or. 309, 38 P. 124; Anderson v. O.R.N. Co., 45 Or. 211, 77 P. 119.

Again, the jury was left uninformed as to what would be a satisfactory explanation. If her failure to call for help was induced by fear or force or threats overcoming her will on that subject, it would be satisfactory in point of law. If her explanation were based upon pleasing promises or presents or some other such inducements, it would not be satisfactory. The jury should not have been left to determine this question under the instruction given.

The only remaining error which we will consider is that growing out of the procedure of the court relating to an alleged flight of the defendant. It is related in the testimony that the crime was committed between 12 and 1 o'clock p.m. of Sunday, July 16, 1911, in Union county. The defendant was taken into custody in Baker county three or four days afterwards. W.A. Maxwell, the justice of the peace who issued a warrant for the arrest of the defendant on the charge mentioned, testified that on Tuesday and Wednesday following the occurrence described in the indictment he summoned a posse, and they went out searching for the defendant for the purpose of arresting him.

Over the objection of the defendant on the ground that it was incompetent, irrelevant, and immaterial, the witness was allowed to testify that they "traveled about 35 miles the first day and the second perhaps not over 30, that is with the team, and they walked 8 or 10 miles that day." Although it is competent to prove the flight of a defendant after committing an offense, yet the fact of such an escape is to be determined by the movements of the defendant, and not by those of the ones going to search for him. It was an error to admit the testimony about the travels of Maxwell and his companions, especially as it is shown by the testimony that his posse was not successful in capturing the defendant.

With the aid of the defendant's brother, two men, named Bennett and Draper, went to a point in Baker county where the brother brought the defendant into their presence, and they conveyed him under arrest direct to La Grande without taking him before the magistrate who issued the warrant. On the cross-examination of Bennett on this point the defendant's counsel, referring to the neighborhood in which the prosecutrix lived, asked this question: "On account of the ferocious excitement of the people over there it would not have been good for him to have stopped there?" This was objected to by the counsel for the state as...