State v. Linn

• Decision Date: 01 October 1946
• Parties: STATE <I>v.</I> LINN
• Court: Oregon Supreme Court

179 Or. 499

173 P.2d 305

STATE

v. LINN

Supreme Court of Oregon.

Argued September 11, 1946.

Reversed October 1, 1946.

Criminal law — Confessions — Evidence

1. In prosecution for attempted rape, court properly deleted from state's exhibit purporting to be defendant's confession any references to alleged offenses committed by defendant with anyone other than the prosecuting witness, where the part relating to other offenses could be separated from the part bearing upon the immediate issues, but retention of reference in exhibit to "these girls", when the prosecution concerned only one alleged victim, was not improper since the reference could not be separated.

Criminal law — Rape — Proof

2. In prosecution for rape, the prosecution is compelled to prove some particular act constituting the crime and rely upon that for a conviction.

Criminal law — Admissions — Evidence

3. An admission by a defendant of acts other than the one for which he is being tried is not a "confession" and such evidence is admissible only for a limited purpose.

Criminal law — Confessions — Admission

4. On appeal from conviction for attempted rape, state's exhibit which was entitled, offered, and received as a confession was treated as such, notwithstanding Supreme Court's belief that admission of the exhibit as a confession was error since it was not shown to have been voluntary.

Criminal law — Confession of guilt

5. A confession which is actually or practically an acknowledgement of guilt is prima facie involuntary and is inadmissible unless it is affirmatively shown to have been made under conditions which would not induce a false statement.

Criminal law — Confessions — Admissibility

6. The offer in evidence of a confession presents a preliminary question of admissibility for decision of trial court whose decision will generally not be disturbed on appeal unless the record discloses manifest error.

Criminal law — Confessions — Admissibility

7. If the evidence on the preliminary issue of admissibility in evidence of a confession is undisputed, the correctness of the findings of the trial court becomes a question of law for determination on appeal; but, where the court's findings are based upon conflicting evidence, the decision will not be disturbed on appeal unless the record discloses manifest error.

Criminal law — Confessions — Voluntarily made

8. Defendant has the right, if he demands it, to present evidence concerning issue of whether a confession offered in evidence by the prosecution was voluntarily made, which must receive consideration by the court if undisputed.

Criminal law — Involuntary confession

9. Where defendant had been told by police, in effort to get a confession, that if defendant did it "the hard way" they would fight him to the last inch, and the testimony of police officers disclosed subtle attempt to instill in mind of defendant fear of a seven-year sentence and of official hostility if defendant refused to confess, and an expectation of leniency if defendant admitted the crime, defendant's confession was not voluntary and its receipt in evidence required reversal of conviction.

Witnesses — Rape — Cross-examination

10. In prosecution for attempted rape, permitting cross-examination of a character witness as to his knowledge of similar misconduct by defendant with a woman other than prosecutrix is within judicial discretion of trial court.

Criminal law — Witnesses — Improper remarks

11. In prosecution for attempted rape of a feeble-minded female child, where prosecutor on cross-examination asked a character witness for defendant if witness had ever heard that defendant had ever taken personal liberties with sister of prosecutrix and, in reply to statement of defendant's attorney that prosecutor meant the prosecuting witness and not her sister, prosecutor replied, "I think I can show the other one," remark of prosecutor was improper as disclosing another offense.

                  See 20 Am. Jur. 436, 438, 441
                  22 C.J.S., Criminal law, § 833
                

Appeal from Circuit Court, Multnomah County.

MARTIN W. HAWKINS, Judge.

Philip M. Bagley and Charles E. Raymond, of Portland (T.B. Handley, District Attorney, and Charles E. Raymond, Deputy District Attorney for Multnomah County, both of Portland, on the brief), for respondent.

William B. Murray, of Portland, for appellant.

Before BELT, Chief Justice, and KELLY, BAILEY, BRAND and HAY, Justices.

REVERSED AND REMANDED.

The defendant, Earl Arthur Linn, was convicted of the crime of attempted rape upon Betty Ulman, a feeble-minded female child, aged 13. From the ensuing sentence, the defendant appeals.

BRAND, J.

There are two assignments of error. The first relates to the admission in evidence, over objection, of State's Exhibit 2, which reads as follows:

"Subject: Confession

"I, Earl A. Linn, of 5954 S.E. 22nd Ave., do hereby confess to * * * attempted intercourse with Betty on two occasions. The vagina * * * being too small, their was no insertion. The above acts took place in my car at 37 S.E. 127th St. * * * I make the above confession of my own free will and testimony, and I have known this girls since the middle part of 1944, and I realize these girls are minors.

                    Witness
                    C.D. Larsen
                    Ralph A. Benton
                                            Signed: Earl A. Linn, 37 yrs
                                                      5954 S.E. 22nd Ave."
                

The defendant objected to the admission of the exhibits on the ground that portions thereof had been deleted, and also objected to the plural language therein, "these girls." The objections were not well taken.

1. The exhibit, in its original form, contains statements implicating the defendant with another female child. It was proper for the court to delete any reference to alleged offenses committed with any one other than the prosecuting witness when, as here, the part relating to other offenses could be separated from the part bearing upon the immediate issue. The reference to "these girls" could not be deleted for the language was not separable. Robinson v. United States, 63 F. (2d) 147; 22 C.J.S., Criminal Law, § 738 at page 1274, § 820 at pages 1440, 1441.

2. A more serious objection arises not to the admission of Exhibit 2, but to the use to which it was put. In this state the prosecution is compelled to prove some particular act constituting the crime and rely upon that for a conviction. State v. Goddard, 69 Or. 73, 91, 133 P. 90, 138 P. 243, Ann. Cas. 1916A, 146; State v. Hardin, 63 Or. 305, 127 P. 789.

While the prosecution made no formal election, it did nevertheless rely upon an act alleged to have been committed on the night of April 22, 1945, in an automobile in front of the Henderson's house at 39 Southeast 127th Street, Portland, Oregon. Under the evidence the jury could not have convicted the defendant for any other act. This is not because the indictment specified April 22nd as the date of the offense, but because the proof was limited to it. As stated in the brief of the prosecution, "that is the offense for which he was convicted."

3. A voluntary statement by the defendant concerning attempts to have carnal knowledge of the prosecuting witness on occasions other than the one on which the State relied for conviction might have been admissible "to show the relationship and familiarity of the parties, and as corroborative of the prosecutrix' testimony concerning the particular act relied upon for a conviction," State v. Robinson, 32 Or. 43, at page 50, 48 P. 357; or, as otherwise stated, "to prove the inclination or disposition to commit the act for which the accused is on trial," State v. Hardin, supra, at page 308. But an admission by a defendant of acts other than the one for which he is being tried is not a confession. Such evidence is admissible only for a limited purpose. In the case at bar, there is nothing to indicate that the defendant's "attempted intercourse with Betty on two occasions" referred to the alleged act of April 22nd. The two occasions, if they occurred, may have had no connection in time or circumstance with the offense for which the defendant was tried. Yet the exhibit was entitled "confession."

4. In presenting it, the prosecution said: "I offer State's Exhibit 2 as a confession of the defendant * * *." And the court said: "I am allowing the confession, as deleted." Exhibit 2 was identified by the court in its instructions thus: "Regarding the confession of the defendant * * *." Timely objection was made upon the stated ground that Exhibit 2 was not a confession, and we think its receipt as such was error. However, since it was entitled, offered and received as a confession, which it may or may not have been, we will, of course, treat it as such here. See State v. Ellis, 207 La. 812, 22 So. (2d) 181.

The most serious question relates to the admissibility of Exhibit 2 as a voluntary statement of the defendant. The defendant was arrested, immediately handcuffed and taken to a room in the courthouse for questioning by Officers Benton and Larsen. Both officers testified in general terms that no promises or threats were made to the defendant, that they never coerced him, and that he signed the exhibit of his own free will. However, Officer Benton also testified that he told the defendant he was "in a tough spot."

Officer Benton testified further as follows:

"Q (by Mr. Murray) At that time did you say to the defendant something about the Sparks case, where another man had been involved with these girls, and that he was sentenced to seven years?

"A Yes.

"Q And at that time did you tell him that you felt it was the defendant's best bet to come clean with the admission?

"A Words to that effect, yes. * * *

"A Yes, we mentioned the Sparks case to him and told him we thought that it was his best bet to throw himself on the leniency of the Court. That is correct.

"Q That it would be better for him if he did that?

"A That we felt it would be better for him if he did that. We couldn't...