State v. Morrow

• Decision Date: 25 January 1938
• Citation: 158 Or. 412,75 P.2d 737
• Parties: STATE v. MORROW. [*]
• Court: Oregon Supreme Court

75 P.2d 737

158 Or. 412

STATE v. MORROW. ^[*]

Supreme Court of Oregon

January 25, 1938

Department 1.

Appeal from Circuit Court, Multnomah County; John P. Winter, Judge.

Johnnie Morrow was convicted of rape on a female under the age of 16 years after a trial to a jury, and he appeals.

Affirmed.

T. Walter Gillard, of Portland (William P. Lord, of Portland, on the brief), for appellant.

Albert M. Hodler, Deputy Dist. Atty., of Portland (James R. Bain Dist. Atty. for Multnomah County, of Portland, on the brief) for the State.

ROSSMAN Justice.

The defendant, against whom a judgment has been entered finding him guilty of the crime of rape committed upon Flora Bradbury, a female child less than sixteen years of age, has appealed.

The first contention submitted by the defendant insists that a judgment of not guilty entered in his favor in a filiation proceeding instituted by Flora Bradbury, who is also the prosecutrix in the present criminal charge demands a finding of not guilty in this action. That proceeding was conducted pursuant to sections 16-901 to 16-914, Oregon Code 1930, and the judgment was entered before the trial of this action was commenced. The issue is whether the filiation proceeding constituted jeopardy of the defendant's life or liberty within the contemplation of article 1, § 12, Oregon Constitution, which provides: "No person shall be put in jeopardy twice for the same offense." Both proceedings concern the same woman, and, as already indicated, the defendant in this action was also the defendant in the filiation proceedings.

Our filiation statute has been construed many times by this court. In State ex rel. Borland v. Yates, 104 Or. 667, 209 P. 231, this court, after declaring that such a proceeding "is a special proceeding, civil in its nature," held that the statute authorizing it conferred no right of appeal upon the State. In State v. Newman, 109 Or. 61, 218 P. 936, the decision stated that the purpose of the above-mentioned statute is to compel the putative father to support his child, and that it does not authorize the imposition of any penalty. It pointed out that the main question for determination is the paternity of the child, and that the trial is governed by the rules of evidence which apply in civil cases; a preponderance of evidence satisfies, and nine members of the jury may return a verdict. In State ex rel. Riggs v. Mackey, 119 Or. 641, 250 P. 744, the decision was concerned with the quantity of corroborative evidence that is necessary to satisfy the statute's requirement that the prosecutrix's testimony be corroborated. In State ex rel. Burghart v. Haslebacher, 125 Or. 389, 266 P. 900, 902, the decision declared: "It is definitely settled in this state that a proceeding of the character of the case at bar [filiation] is in the nature of a civil action. *** The main question here is not the character of the woman, but the fatherhood of the child."

In State ex rel. Dickerson v. Tokstad, 139 Or. 63, 8 P.2d 86, 88, the essence of these decisions was summed up thus: "It is well settled in this state that a proceeding authorized by the statutes under which this prosecution was had, although criminal in form, is not a criminal prosecution, but is a special statutory proceeding in the nature of a civil action to enforce a civil obligation or duty, and that, since the nature of the proceeding is civil, the proof is to be governed by the rules of evidence which apply in civil cases, and hence that the paternity of the child need not be established beyond a reasonable doubt, but may be proven by a preponderance of the evidence, and that it is not necessary that the jury shall return a unanimous verdict; that a verdict concurred in by nine of its members is sufficient."

The defendant expresses a belief that our decisions have misconceived the nature of filiation proceedings, and argues that they are criminal in nature. We have again examined the question, but remain satisfied with the conclusion expressed in the above-quoted language. We believe that they are civil proceedings.

Jeopardy has application to proceedings which subject the guilty to the imposition of a penalty. Some courts include within the category of penal proceedings only criminal actions wherein a fine may be imposed or the defendant may be sentenced to confinement in a penal institution, while other courts include within the category civil proceedings in which punitive damages are sought. In the filiation proceedings no penalty of any kind is recoverable. It is true that a defendant in such a proceeding by failing to comply with an order made by the court during its course, or at its close, may subject himself to discipline, but such is true to some extent in all actions, whether criminal or civil. A filiation proceeding, being civil in nature and authorizing the imposition of no penalty, cannot place a defendant in jeopardy of life or liberty. From State v. Kraus, Jr., 175 Minn. 174, 220 N.W. 547, 548, in which a judgment convicting the defendant of the crime of carnally knowing a seventeen year old girl was affirmed, we quote: "Defendant offered in evidence the verdict of not guilty in the bastardy case, and insists that the court erred in excluding it. The ruling was correct. *** Under our statute proceedings to determine paternity are civil actions. It is the general rule that a judgment in a civil action is not admissible in a criminal prosecution as evidence of the facts involved therein. 34 C.J. 972, § 1389; 15 R.C.L. 1000, 1004; State v. Wenz, 41 Minn. 196, 42 N.W. 933. While there are some exceptions to this rule, they do not apply to the facts in this case."

We are satisfied that the circuit court did not err when it made the orders challenged by this issue.

Next, the defendant contends that if it be held (1) that filiation proceedings are civil, and (2) that they do not place the accused in jeopardy, nevertheless, the outcome of the proceeding instituted by Flora Bradbury determined that this defendant was not the father of her child, and that therefore the circuit court erred when it permitted the mother to exhibit to the jury, during the course of the rape trial, her child. When the district attorney proposed to bring the child into the courtroom, the presiding judge inquired, "You offer the child on account of resemblance?" and received the reply, "Yes." Apparently all that was done was to afford the jury an opportunity to seeing the child. Before this course was adopted, the mother had testified that she and the defendant had had sexual intercourse, and that the defendant was the child's father. The infant at the time of the trial was eleven months old. Generally, evidence of resemblance manifested by a comparison is admissible in proceedings of this character. Wigmore on Evidence, 2d Ed., § 166. In Anderson v. Aupperle, 51 Or. 556, 95 P. 330, (seduction proceeding) a child three months of age, and in State of Russell, 64 Or. 247, 129 P. 1051 (prosecution for incest), a child fourteen months of age, were exhibited to the jury on the issue of parentage. Our decisions found no error in either instance. From State ex rel. Dickerson v. Tokstad, supra (filiation proceedings), we quote: "It appears from the bill of exceptions that the prosecutrix, when called as a witness, took the stand with her baby in her arms and was permitted to hold the baby over the objection of the defendant. This, it is claimed, was prejudicial error, notwithstanding she turned the child over to another person before commencing to testify. The child at the time was less than four months old and it could, had the state so desired, have been offered as an exhibit in the case."

In support of his contention that the outcome of the filiation proceeding was res adjudicata of the parentage of the child in the present criminal action, the defendant cites Van Fleet's Former Adjudication, p. 1246; Commonwealth v. Ellis, 160 Mass. 165, 35 N.E. 773; United States v. McKee, Fed.Cas.No.15,688, 4 Dill. 128; Dorrell v. State, 83 Ind. 357; People v. Hamberg, 84 Cal. 468, 24 P. 298, 300; Halbrook v. State, 34 Ark. 511, 36 Am.Rep. 17; State v. Ashley, 37 Ark. 403, State v. Foster, 3 McCord, S.C., 442; Ex parte Hans Nielsen, Petitioner, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118; Foster v. State, 8 Okl.Cr.R. 139, 126 P. 835, 838; Glenn v. State ex rel. Clore, 46 Ind. 368; Commonwealth v. McIlvain, 17 Pa.Co.Ct.R. 174. We shall now consider these authorities. The defendant quotes from Van Fleet's Former Adjudication, p. 1246, the following: "A conviction of unreasonably neglecting to support a minor child adjudicates its legitimacy and precludes the defense of bastardy on a second prosecution."

As authority for that statement Van Fleet cites Commonwealth v Ellis, supra, only, which it will be observed is the defendant's second citation. But that was a criminal case and the decision says nothing concerning the admissibility of a civil judgment to prove a fact in a criminal action. In that case the state accused the defendant of failing to support a child of which it claimed he was the father, and, upon his denial of parentage, presented a judgment of guilt entered against him in a previous criminal action under the same statute and concerning the same child. It was held admissible. In United States v. McKee, supra, the defendant, who had been found guilty and sentenced to punishment, but later pardoned, for the crime of conspiring to remove distilled spirits from distilleries without payment of the taxes, was next sued in the civil action now under review for a statutory penalty of double the tax. He pleaded (1) his conviction and punishment as just described, and (2) a pardon by the President. In overruling the government's demurrer to these...