State v. MacLaren
| Decision Date | 28 July 1925 |
| Parties | STATE v. MACLAREN ET AL. [*] |
| Court | Oregon Supreme Court |
Department 1.
Appeal from Circuit Court, Clackamas County; J. U. Campbell, judge.
Allen MacLaren, Gladwin Lawpaugh, and Archie Livingston were convicted of rape, and they appeal. Affirmed.
The defendants were convicted of the crime of rape and sentenced to imprisonment in the penitentiary for the term of four five, and two years, respectively. They were jointly indicted and tried, and jointly prosecute this appeal. The appellants assign 23 alleged errors, which they treat under 4 heads.
Earl F Bernard, of Portland (Collier, Collier & Bernard, of Portland, on the brief), for appellants.
Livy Stipp, of Oregon City, for the State.
The appellants complain because of the remarks made by the district attorney in his opening statement to the jury to the effect that he would prove that Roscoe P. Hurst, an attorney of record for the defendant Allen MacLaren, attempted to intimidate the prosecuting witness and her mother prior to the trial. The prosecuting attorney attempted to prove the alleged intimidation, but the objection to the evidence offered by the state was sustained by the court. No evidence of the intimidation, therefore, was received by the court. Only the remarks made by the district attorney in his opening statement and the preliminary questions were heard. He must be allowed some latitude in his opening statement. The mere fact that he was mistaken regarding the competency of the anticipated evidence does not constitute reversible error, if he made the statement in good faith. There is no indication of bad faith on his part. At the time the circuit court overruled defendant's objection to the statement, it did not appear that the proposed evidence was inadmissible. It did not appear that the state could not prove that defendants authorized the conduct of the attorney referred to. When the evidence was offered, the defendants promptly objected. The court dismissed the jury during the argument of counsel over the objection. The court sustained the objection. The court did not err in his ruling, either at the time the objection was made during the opening statement, or in excluding the proffered testimony. This is not to be construed to sanction false or reckless statements to juries by prosecuting officers. The opening statement should always be confined to reference to competent evidence. An abuse of his duty in this regard, supported by an erroneous ruling of the court, might warrant a new trial. In the instant case, there being no evidence of bad faith, the court will presume the offer complained of was made in good faith, and the circuit court committed no error in that regard. The ruling of the circuit court excluding the evidence was correct. State v Stone, 111 Or. 227, 226 P. 430. The statement of the district attorney in offering his proof is not a reversible error, however. No evidence of intimidation was either heard by or submitted to the jury.
The appellants also predicate error upon the court's refusal to compel the state to elect the particular offense upon which it relied for conviction. Only one offense is charged in the indictment. The court instructed the jury that the only rape attempted to be proven was the act of the defendant Gladwin Lawpaugh; and the evidence involving the defendants MacLaren and Livingston should be considered only for the purpose of determining whether or not they were accessories before the fact. There was no attempt on the part of the state to prove actual rape by either of the defendants MacLaren or Livingston. The testimony tends to show that both the defendants MacLaren and Livingston had sexual...
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State v. Goodyear
...and instructions. That no error was committed in these respects is, we think, clearly shown by the following authorities: State v. MacLaren, 115 Or. 505, 237 P. 969; State v. Kirkland, 175 N.C. 770, 94 S.E. 725; Lindsey v. State, 201 Ark. 87, 143 S.W.2d 573; United States v. Newhoff, 2 Cir.......
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State v. Weitzel
... ... Furthermore, it was stated ... by counsel for the state that the defendants were being tried ... on the theory that they were principals. A case in point and ... adverse to the contention of appellants, is State v ... MacLaren, 115 Or. 505, 237 P. 969 ... Mrs ... Ernest C. Williams, in testifying as to the condition of the ... prosecutrix, in answer to the question, "Now, what about ... her face?" stated: "Well, she couldn't hardly ... talk. Her throat was swollen and she couldn't ... ...
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State v. Sanchez, Criminal 920
...and instructions. That no error was committed in these respects is, we think, clearly shown by the following authorities: State v. MacLaren, 115 Or. 505, 237 P. 969; State v. Kirkland, 175 N.C. 770, 94 725; Lindsey v. State, 201 Ark. 87, 143 S.W.2d 573; United States v. Newhoff, 2 Cir., 83 ......
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State v. Glenn
...can be convicted by proof that defendant did not personally rape Miss X but aided and abetted another in raping Miss X. State v. MacLaren et al., 115 Or. 505, 237 P. 969 (1925). The same principle was followed in a sodomy case: State v. Weitzel et al., 157 Or. 334, 69 P.2d 958 (1937). An in......