State v. Moore

• Decision Date: 05 March 1952
• Citation: 194 Or. 232,241 P.2d 455
• Parties: STATE v. MOORE.
• Court: Oregon Supreme Court

Page 455

241 P.2d 455

194 Or. 232

STATE v. MOORE.

Supreme Court of Oregon.

Argued and Submitted Feb. 21, 1952.

Decided March 5, 1952.

S. J. Bischoff, of Portland, for appellant.

Leonard I. Lindas, Dist. Atty., of Oregon City, (George Neuner, Atty. Gen. and W. L. Bradshaw, Deputy Dist. Atty. of Oregon City, on the brief), for respondent.

Before BRAND, C. J., and HAY, LATOURETTE, WARNER and TOOZE, JJ.

TOOZE, Justice.

Defendant was indicted by the grand jury of Clackamas county for the crime of contributing to the delinquency of a minor. Upon his plea of 'not guilty', a trial was had to a jury. Defendant was convicted and sentenced to imprisonment in the state penitentiary for a period not to exceed two years. From that judgment he appeals to this court.

Because of the nature of this case, we are omitting use of the name of the minor involved, substituting therefor in all instances the designation 'Miss X'.

Omitting formal parts, the indictment charges: 'The said James B. Moore, Jr., on or about the 17th day of April, A. D., 1951, in the said County of Clackamas and and State of Oregon, then and there being, and one [Miss X], then and there being an unmarried female child under the age of eighteen (18) years, to-wit: of the age of 14 years, the said James B. Moore, Jr., did then and there unlawfully and feloniously do an act, to-wit: did then and there fondle and manipulate the private parts and attempt to have sexual intercourse with the said [Miss X], which said act did manifestly then and there tend to cause the said [Miss X] to become a delinquent child, said act of defendant being, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.'

Upon the trial, the only evidence offered in connection with the specific acts charged in the indictment was the testimony of the prosecuting witness, Miss X. Her entire testimony with respect to those matters was as follows: 'Q. Go ahead. What happened then, if anything? A. And then he kissed me and hugged me, and then he played with my breasts, and then he started to put his hands on my private parts; but then Howard came into the house and he didn't have a chance, he had to let me go.'

Explaining what she meant by the term 'private parts', the witness further testified:

'Q. When you refer to your private parts, you are referring to what part of your body, [Miss X]?

'Mr. Lindas: May I lead the witness in a question here, your Honor?

'The Court: You may.

'Q. [Miss X], are you referring to your genitals between your legs? A. Yes.'

Upon the conclusion of the evidence, the defendant's counsel did not move the court for a directed verdict of not guilty upon the ground that there was a total want of evidence to establish the allegations of the indictment. However, after verdict and before judgment, defendant did file a motion to set aside the verdict and for a new trial, assigning as one of the reasons therefor 'insufficiency of the evidence to justify the verdict.' The motion was denied.

It will be observed that the motion for a new trial was based in part upon 'insufficiency of the evidence to justify the verdict'. Under § 5-802(6), O.C.L.A., that is one of the grounds stated for a new trial. However, since that act was adopted, the constitution of Oregon has been amended: art. VII, § 3. Under that amendment, the trial court no longer has the power to grant a new trial for 'insufficiency of the evidence to justify the verdict'. All that the court may now do, so far as the facts are concerned, is to examine the record to determine whether it 'can affirmatively say there is no evidence to support the verdict.' Van Lom v. Schneiderman, 187 Or. 89, 95, 210 P.2d 461, 462, 11 A.L.R.2d 1195. For our purposes, therefore, the only question that may be considered is whether there is any substantial evidence to support the verdict; provided, of course, we are permitted to decide that issue in the absence of proper exceptions.

Defendant's bill of exceptions in this case consists of a transcript of the whole testimony and all the proceedings had at the trial, including the instructions of the court, as permitted by the provisions of § 5-703, O.C.L.A. No special exceptions are noted.

The principal contention urged by defendant on this appeal is that there is a total want of evidence to sustain the charges contained in the indictment and, therefore, no evidence to support the verdict.

This is a court of review, not a court of original jurisdiction, except as to mandamus, quo warranto, and habeas corpus. § 2, art. VII, Oregon Const. It is a general rule, needing no citation of authority, that it is only error which is legally excepted to that can be reviewed upon an appeal. However, in keeping with principles of justice, this court has recognized an exception to the general rule where the record, considered in its entirety, shows that the defendant has not had the kind of trial contemplated by law. In such circumstances, this court has held that it may properly take cognizance of palpable errors, even though the questions have not been saved by proper exceptions. State v. Pace, 187 Or. 498, 510, 212 P.2d 755.

It is elementary that the constitutional right of an accused person to a fair and impartial trial according to the law and evidence should not be frittered away or destroyed because of the neglect of counsel in failing to make a motion for a directed verdict of not guilty, where there is a total want of evidence to sustain the charge.

The rule is well stated in U. S. v. Stoehr, D.C., 100 F.Supp. 143, 152, as follows: 'Notwithstanding what his counsel did, the defendant has a right to have his guilt or innocence found by a jury according to the procedure and standards appropriate for criminal trials in the federal courts. If any error was therefore committed during the course of the trial which affected his substantial rights the failure of counsel to call it to the attention of the trial court should not preclude its being noticed and corrected.'

In 3 Am.Jur., Appeal and Error, 33, § 248, it is stated: 'In the exercise of its power to do so, an appellate court will consider questions not raised or reserved in the trial court when it appears necessary to do so in order to meet the ends of justice or to prevent the invasion or denial of essential rights. The court may, as a matter of grace, in a case involving deprivation of life or liberty, take notice of errors appearing upon the record which deprived the accused of substantial means of enjoying a fair and impartial trial, although no exceptions were preserved, or the question is imperfectly presented.'

The judgment roll in this case includes the bill of exceptions. § 26-1221, O.C.L.A. The entire record is before us. If that record discloses an entire want of evidence to sustain the verdict, as distinguished from a mere insufficiency of evidence, we may, under the rules stated, properly take cognizance of the error; in truth, and in the interests of justice, it is our duty to do so. Particularly is this true where, as here, the contention of defendant was actually presented to the trial court before judgment was entered.

For the purposes of this review, it must be admitted that the testimony of the prosecuting witness expresses the truth. With this in mind, the sole question for determination is whether that evidence establishes, or tends in any way to establish, the charges contained in the indictment. In this connection, we must, of course, concern ourselves with the specific charges made. We are not permitted to substitute for the evidence necessary to prove the particular charges now under consideration, evidence of other acts which the record may disclose.

Section 23-1034, O.C.L.A. upon which the indictment in this case is...