State v. Jackson

• Decision Date: 20 April 1960
• Citation: 221 Or. 315,351 P.2d 439
• Parties: STATE of Oregon, Respondent, v. Phillip Duane JACKSON, Appellant.
• Court: Oregon Supreme Court

Page 439

351 P.2d 439

221 Or. 315

STATE of Oregon, Respondent, v. Phillip Duane JACKSON, Appellant.

Supreme Court of Oregon, Department 1.

Argued March 2, 1960.

Decided April 20, 1960.

Robert M. Redding, Klamath Falls, argued the cause for appellant. With him on the brief was Glenn D. Ramirez, Klamath Falls.

O. W. Goakey, Deputy Dist. Atty., of Klamath County, Klamath Falls, argued the cause for respondent. With him on the brief was Arthur A. Beddoe, Dist. Atty., of Klamath County, Klamath Falls.

Before McALLISTER, C. J., and ROSSMAN, PERRY and HARRIS, JJ.

ROSSMAN, Justice.

This is an appeal by the defendant, Phillip Duane Jackson, from a judgment of the circuit court which found him guilty of the crime of assault and battery while unarmed. The crime is defined in ORS 163.260. The judgment sentenced the defendant to serve a term of 30 days in the county jail and pay a fine of $250. The entry of the judgment was preceded by the return of the verdict of a jury which had found the defendant guilty. Prior to his conviction in the circuit court the defendant had met with a similar outcome upon his trial in the district court.

The complaining witness, Alberto Sapiens, was 64 years old at the time of the alleged assault. The defendant is much younger, apparently in his early twenties. Sapiens is of Mexican descent and, although a resident of the United States for many years, is unable to speak the English language fluently. An interpreter was employed at the trial.

After leaving his employment for the day on May 9, 1959, Sapiens went to the Dairy Tavern in Dairy, Oregon, where he arrived at 8:00 p. m. He remained in that place for an hour and a half, playing shuffleboard and drinking beer. He then drove, so he testified, to Nellie's Tavern in Bonanza where he met the defendant and the defendant's uncle, Nathan Copperfield. Sapiens and the defendant had known each other for several years. The three remained in the tavern for about two hours until closing time at 1:00 a. m. The evidence indicates that all three were somewhat intoxicated. At the defendant's suggestion, Sapiens then drove them to Copperfield's home where the defendant also lived. Two houses stand on the Copperfield property--one of them is occupied by Bernadine Dickens, who is described in appellant's brief as Mrs. Copperfield's niece. Rousing Miss Dickens, the parties entered her house where they sat about, talking and drinking. It was at this point, according to Sapiens, that the assault took place. In the following testimony given through the interpreter the pronoun 'him' generally refers to Sapiens:

'Q. I see. Now, what happened after you arrived at the house, if anything? A. He said they got home and start talking, then he started to make them push-ups.

'Q. Who started to? A. Jackson did.

'Q. The defendant Phillip Jackson? A. Yes, Jackson did.

'Q. And what happened after he started doing the push-ups? A. Well, he bet him one dollar he wouldn't do it twelve times. Then he did it. Then he pay him the dollar. Then Jackson says--no, he says, Alberto says, 'You are the champion.' He says, 'Yes, I am the champion.' Then he started up, he says, 'I am the champion,' then he hit him one, and he hit him twice.

'Q. Who hit? A. Jackson did.

'Q. What did he hit him with? A. His hands.

'Q. Were his fists doubled up? A. Yes. He hit him twice.

'Q. What happened then? A. Well, he knock him down, he started kicking him one.

'Q. Who knocked whom down? A. Phillip--Jackson knocked him down.

'Q. And then what did Mr. Jackson do to you after he knocked you down? A. He started kicking him, he got him down.

'Q. And what was he kicking you with? A. With his shoes, his feet. He say he kick him, then he jump on his stomach twice.'

This testimony is not uncontradicted. Both Nathan Copperfield and Bernadine Dickens, as witnesses for the defendant, testified that no assault occurred.

According to Sapiens, the defendant relented and the witness went to his automobile and started for home. The defendant offered to drive, but for one reason or another did not do so. Suffering pain from the blows received, Sapiens started for a physician in Klamath Falls, but was unable to drive that far and went instead to the residence of Deputy Sheriff Robert F. Hartley. As a result of his injuries, Sapiens was confined to a hospital for six days. On May 18, 1959, he signed the complaint on which this prosecution was based. Sapiens admitted on cross examination that he filed the complaint because he had lost his employment and needed money to pay his hospital bills. His motive, however, is no defense for the defendant in the criminal charge. Unless perjury or fraud is proved, a prosecution can never be deemed malicious where conviction results, even though the judgment should be reversed on appeal. Fones v. Murdock, 1916, 80 Or. 340, 157 P. 148.

The defendant presents three assignments of error. First he contends that the trial judge erred in denying a motion for mistrial raised after testimony was intoduced that the defendant's attorney, Mr. Glenn Ramirez, offered to compromise the case by telling Sapiens that the defendant would pay part of his hospital bill if the prosecution were withdrawn.

An examination of this contention requires a review of circumstances which prompted the motion for mistrial. The testimony concerning the offer of compromise was elicited from Sapiens upon redirect examination by the district attorney. Earlier during his cross examination, the defendant's attorney asked Sapiens several questions directed at finding out whether the witness had 'talked to anybody about the case,' apparently in an attempt to show that Sapiens had signed the complaint unwillingly or was prompted by improper motives. Sapiens repeatedly denied that he had discussed the case with anyone except the district attorney. The defense immediately thereafter concluded its examination and the prosecutor proceeded to ask the following questions:

'Q. Now, Mr. Sapiens, after the trial downstairs in this case, did you discuss this case with Mr. Ramirez?

'The Interpreter: Today?

'Mr. Beddoe: No, after the trial downstairs.

'A. Last week he did.

'Q. And was the defendant present at that time? A. Yes.

'Q. And did Mr. Ramirez make you any offer on behalf of Mr. Jackson at that time?

'Mr. Ramirez: If the court please, I object to that as we're too far afield, and I don't see where that is proper re-direct examination.

'Mr. Beddoe: They went into the matter of discussing this case with various people your Honor.

'Mr. Ramirez: And he denied he had discussed it with anybody except the District Attorney and that was it. Now this is re-direct.

'The Court: If he discussed the case with anyone else he should tell it, because that question was asked him on cross-examination.

'Mr. Ramirez: He has answered he has. Going any further I can say will merely prolong the trial.

'The Court: I think you're entitled to go further on that matter. Read that last question again.

'(Thereupon the last question was read).

'A. Yes, he told him he might help him to pay that hospital bill.

'Mr. Beddoe: I have no further questions.'

Although counsel for the defendant must have known what the nature of Sapiens' testimony as to the conversation would be, he did not object to its introduction on the ground that it was inherently inadmissible, but simply that it carried the examination 'too far afield.' Similarly, when the testimony had been introduced, he did not at once move to strike or make a motion for mistrial. Instead, he began a recross examination of Sapiens and elicited from him the information that the defendant was not present when the offer of compromise was made. It will be noted that in response to the district attorney's questions Sapiens stated that the defendant was present. When the district attorney learned from this examination that the defendant was not connected with the offer of compromise he at once moved that the testimony relating to the offer be stricken. The court on its own motion thereupon asked the witness several questions to clarify the matter, and when it appeared from the answers that the defendant had no part in the offer it allowed the district attorney's motion to strike. The defendant joined this motion but also moved for a mistrial which was denied. However, the court immediately charged the jury, in the following language, to disregard the evidence of compromise:

'* * * The Court is going to instruct the jury right now that any testimony relative to the conversation between Mr. Ramirez and this witness is stricken and you are instructed to disregard it, and to pay to more heed to those statements. You are not to consider them; you are not to think about them again. Can you do that? All right.'

Upon this state of the record, we are convinced that the trial judge acted within the bounds of his discretion in denying the motion for a mistrial. The defendant does not take the position in this court that an offer of compromise is, per se, inadmissible evidence in a misdemeanor trial. He could not well do so, having made no proper objection on this ground in the trial court. However, we do not wish to imply by anything said in this decision that we consider such evidence competent, for in our opinion it clearly is not. The crime charged against the defendant is one which our statutes allow to be compromised. ORS 134.010, 134.020, 134.030, 134.040. In the absence of statute, courts are divided upon whether evidence of attempted compromise in criminal proceedings may be offered against the defendant. See 2 Wharton, Criminal Evidence (12th ed.) § 413, p. 171. We have held, with the majority of jurisdictions, that it is not error to admit evidence of attempted compromise in a prosecution for a felony. State v. Miller, 1930, 133 Or. 256, 289 P. 1063. But we would greatly limit the efficacy of the statutes which permit out-of-court settlement of misdemeanor charges were we to approve a...