State v. Nice
| Decision Date | 30 April 1965 |
| Citation | 240 Or. 343,401 P.2d 296 |
| Parties | STATE of Oregon, Respondent, v. Leroy Walter NICE, Appellant. |
| Court | Oregon Supreme Court |
Bruce J. Rothman, Portland, argued the cause and filed a brief for appellant.
Vincent G. Ierulli, Deputy dist. Atty., Portland, argued the cause for respondent. With him on the brief was George Van Hoomissen, Dist. Atty., Portland.
Before McALLISTER, C. J., and SLOAN, GOODWIN, and HOLMAN, JJ.
The defendant appeals a conviction of sodomy involving a twelve-year-old boy.
The appeal urges this court to consider, under Rule 46, alleged errors which were not called to the attention of the trial court during the trial.
The principal assignment of error challenges the trial court's instruction, requested by the state and not objected to by the defendant, to the effect that the child was not an accomplice. The instruction necessarily denied the defendant the benefit of the statutory rule that the testimony of an accomplice, unless corroborated, is not sufficient to convict. ORS 136.550. State v. Stanley, Or., 401 P.2d 30, decided April 21, 1965.
A twelve-year-old participant in a violation of ORS 167.040 may or may not be an accomplice. An accomplice is a person who knowingly, voluntarily, and with common intent with the principal offender unites in the commission of a crime. State v. Stanley, supra.
In State v. Ewing, 174 Or. 487, 149 P.2d 765 (1944), we took notice of the common-law rebuttable presumption that children between the ages of seven and fourteen years of age are without criminal capacity. We held that it was a jury question in a given case whether the child knew and appreciated the nature of the act and made an intelligent choice in participating in it. If so, the jury could find that the child was an accomplice. If the jury so found, it would apply to the child's testimony the cautionary rule concerning the testimony of an accomplice. We hold that the rule stated in State v. Ewing, supra, is still valid, despite the subsequent enactment of ORS 419.478 and 419,533, which vest in the juvenile court exclusive jurisdiction over children less than sixteen years of age who may commit offenses denounced as crimes.
While it is now possible to argue in certain cases that a given child does not exactly fit the traditional role of an accomplice because the child may not be subject to prosecution as an adult offender, the child is still under the control of law-enforcement officers and other persons in authority. This control over the witness by the state is the reason why the law subjects his testimony to special scrutiny. The testimony of an accomplice is insufficient without other proof to convict a person of crime because the testimony of an accomplice may be given under a hope of leniency. 7 Wigmore, Evidence 322, § 2057 (3d ed. 1940). This reason applies with equal force to the testimony of a child who is under the control of the state.
The court, if requested by the defendant to do so, should have submitted, with...
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State v. J. C. N.-V. (In re J. C. N.-V.)
...could be rebutted in individual cases. Wayne R. LaFave, 2 Substantive Criminal Law § 9.6(a) (2d ed. 2003) ; State v. Nice , 240 Or. 343, 345, 401 P.2d 296 (1965) ; State v. Ewing , 174 Or. 487, 506, 149 P.2d 765 (1944). For the latter class of children, a jury was required to decide whether......
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State v. Fleischman
...denied 394 U.S. 951, 89 S.Ct. 1294, 22 L.Ed.2d 487 (1969) (informer's identity when relevant to guilt or innocence); State v. Nice, 240 Or. 343, 401 P.2d 296 (1965) (juvenile court records); Chandler v. State, 230 Or. 452, 370 P.2d 626 (1962) (welfare department files); State ex rel. Juv. D......
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State v. Pine
...unites with the principal in the commission of the crime. State v. Barnett, 249 Or. 226, 228, 437 P.2d 821 (1968); State v. Nice, 240 Or. 343, 345, 401 P.2d 296 (1965). A person is not an accomplice to a crime merely because the person's conduct was part of the operative facts that gave ris......
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State v. Simson
...(1970). Before Lewis, both the Supreme Court and we had noted the rationale for the rule on which defendant relies. See State v. Nice, 240 Or. 343, 401 P.2d 296 (1965); State v. Smith, 1 Or.App. 583, 465 P.2d 247 (1970). In Lewis, we rejected the proposition that the only rationale for view......