State v. Lee
| Citation | 202 Or. 592,276 P.2d 946 |
| Parties | STATE of Oregon, Respondent, v. Robert Earl LEE, Appellant. |
| Decision Date | 24 November 1954 |
| Court | Oregon Supreme Court |
Donald E. Kettleberg, Portland, argued the cause for appellant. With him on the brief was Rivon E. Jones, Portland.
Winston L. Bradshaw, Dist. Atty., Oregon City, argued the cause for respondent. With him on the brief was Robert Y. Thornton, Atty. Gen.
Before LATOURETTE, C. J., and ROSSMAN, LUSK, BRAND, TOOZE and PERRY, JJ.
This is an appeal by the defendant from a judgment of the circuit court which adjudged him guilty of the crime of rape and ordered his imprisonment. The section of our laws upon which the indictment is predicated reads as follows:
'Any person over the age of 16 years who carnally knows any female child under the age of 16 years, * * * is guilty of rape, * * *.' ORS 163.210.
The state presented evidence showing that the age of the alleged victim was 15 years and that the defendant was many years older.
The only assignment of error which the defendant submits reads as follows:
'The Court erred in denying appellant's motion for the State to elect a particular date to prove when the crime took place (Tr. I-A), in the following words, to-wit:
The motion just quoted was made before the opening statements had been made to the jury. Immediately after the motion was made, the district attorney declared:
The indictment alleged that the purported crime was committed by the defendant 'on or about the 14th day of August, A.D., 1953' in Clackamas County.
In order to facilitate an understanding of the parts of the record to which we will shortly resort, we explain that in the circuit court the defendant was represented by Mr. Stanley Mitchell and that the name of the district attorney is Winston L. Bradshaw.
When the motion for an election was made, no one had indicated that the state would show that the defendant had violated the girl more than once. After Mr. Bradshaw had made his statement, the following occurred:
'The Court: Upon what do you base your motion?
'Mr. Mitchell: It says 'on or about,' Your Honor, and if they are going to stand on this date, why, we are satisfied.
It seems reasonable to infer that by the term 'this date' Mr. Mitchell referred to 'the 14th day of August,' being the date mentioned in the indictment. No other date could have been the subject of his statement. Accordingly, Mr. Mitchell apparently meant that if the state was 'going to stand on this date,' that is, August 14, the defendant would be satisfied. His reply to that effect appears to have been induced by Mr. Bradshaw's declaration that the indictment alleged 'a certain particular date.' The brief colloquy between the two attorneys seems to warrant a surmise that the defendant would be satisfied if the state decided 'to stand on' August 14 as the material day. Evidently Mr. Mitchell was rendered uneasy through the use in the indictment of the qualifying words 'on or about' and sought assurance that the state would 'stand on' August 14. As we shall later see, Mr. Mitchell came prepared to account for the defendant's movements and whereabouts on August 14.
If the defendant was dissatisfied with the disposition which was made of his motion to elect, he did not so indicate when the trial judge ruled. ORS 17.510 renders it unnecessary for a party who is prejudiced by an 'adverse ruling' to save an exception. Although we are not certain that the defendant was dissatisfied with the disposition which was made of his motion, we are going to assume, in proceeding, that the ruling was adverse to him.
The defendant did not at any stage of the trial renew his motion to elect, nor did he testify. He made no motion for an acquittal and no request for any instruction to the jury upon the subject of alibi or upon any other phase of the case. To the instructions which were given governing the defense of alibi he took no exception. In fact, he took no exception to any part of the instructions.
The state presented evidence showing that the defendant and the girl named in the indictment, to whom we will refer as Arlene, had sexual intercourse about June 12 or 15, 1953, and again on August 14, 1953.
In this opening statement to the jury, the district attorney said:
'* * * the state will show that on or about--on August 14th of this year, that she had sexual relations with the defendant.'
There is no contention that the court reporter's punctuation does not reflect the true import of the district attorney's statement. The district attorney urges that when he uttered those words he made the election which the defendant had requested. It is clear that he never retreated from the statement.
The girl testified that 'about the 12th or 15th of June, somewhere around there,' the defendant persuaded her into an act of sexual intercourse. The latter occurred in the nighttime while the two were in the defendant's automobile which was parked 'at the Crooked Finger Road by Scott's Mills.' The name of county was not disclosed. Apart from saying that she did not reach home until 1:00 or 2:00 a. m. the following morning, the foregoing represents all that the girl said about the purported incident of June. No other witness made any mention of it and upon cross-examination Arlene was asked nothing about it.
According to Arlene, she and the defendant were many times in each other's company following the act of immorality which occurred in June. August 14, 1953, they again engaged in sexual intercourse, so she swore. At about 5:00 p. m. of that day she met the defendant, if she told the truth, and entered his automobile. She related the manner in which the two spent that evening and night together. Her account indicated that they stopped at a place where they ate a meal and about 10.00 p. m. parked the car in front of a cabin which was possessed by one Glen Harrison. The defendant, Harrison and two other men, as we shall shortly see, lived in the cabin. The witness described the cabin as dark when she and the defendant stopped in front of it. According to her narrative, the two sat in the car for about an hour while it was parked there and engaged in 'necking'. Then they proceeded a few miles to a lonely road, parked adjacent to it, and at about midnight engaged in sexual intercourse. According to the girl, that place was in Clackamas County.
Arlene was positive that the act just mentioned occurred August 14, 1953, and, in support of her specified time, produced a diary which she kept and which contains an entry that lends credence to her identification of the day. The diary is one of the exhibits.
The girl testified that the car remained standing near the lonely road until about 6:30 a. m., August 15, when the defendant drove to a place where they had breakfast. Later, they proceeded to the town where Arlene lived and there called upon one of her school-girl friends who told them that Arlene's mother had discovered that her daughter had not spent the night at the home of a girl friend as she had promised when she left home the previous day. Continuing, Arlene testified that shortly after she received that information and had become fearful that her mother would consult the juvenile authorities, the defendant drove her and the girl from whom she had received the disquieting information to Portland where they sought Arlene's father. They did not locate him until the afternoon. In the meantime, Arlene telephoned to her mother. When the group had found Arlene's father, the defendant and Arlene, so the latter testified, requested that the father grant permission so that they could marry. The permission was denied and the father took Arlene to the mother. Thereafter Arlene did not see the defendant again until the trial.
Arlene's mother, father and the friend of Arlene above mentioned gave testimony which concerned Arlene's movements on August 14 and 15. They mentioned nothing whatever about June or Arlene's actions in that month, nor did any witness, except Arlene, mention that period of time.
The defendant produced as witnesses in his behalf the aforementioned Glen Harrison and two brothers by the name of Paul and Lauddy Dibale. Their testimony indicates that Harrison was the tenant of the little cabin which we have mentioned and that after he had become such he was joined in its occupancy by the two brothers. It is a small one-room structure which was equipped with two single cots. About the latter part of July of 1953 the defendant somehow attached himself to the cabin. Apparently he had no other abode. Occasionally he slept with Harrison in the latter's cot and at other times in his car, which he parked beside the cabin.
Harrison and the two Dibales gave testimony which, if true, accounted for much of the defendant's presence on August 13, 14 and 15. If accepted, it showed that he could not have spent the night of August 14 with Arlene. Both Harrison and Lauddy Dibale swore that they saw him asleep alone at midnight of August 14 in his car while it was parked beside the cabin. Harrison added that the defendant drove him to town the next morning and that upon reaching town he saw Arlene. Lauddy Dibale said that he saw the defendant enter the cabin August 15 early in the morning, shave and brush his teeth. Paul swore that he and the defendant were together in...
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