State v. Pace

• Decision Date: 13 December 1949
• Parties: STATE <I>v.</I> PACE
• Court: Oregon Supreme Court

187 Or. 498

212 P.2d 755

STATEv.

PACE

Supreme Court of Oregon.

Argued November 29, 1949.

Reversed and remanded December 13, 1949.

Criminal law — On or about date alleged in indictment — Objection

1. Objection to election by state to rely on alleged act of rape taking place in defendant's household on or about date alleged in indictment in prosecuting witness' bedroom was properly overruled where there was no evidence at that time tending to show commission of the crime at any place other than that designated in election.

Criminal law — Vague and indefinite testimony — Weight — Admissibility

2. Objection that testimony of prosecuting witness relative to time alleged rape was committed was vague and indefinite went to the weight of such evidence and not to its admissibility.

Indictment and information — Date alleged — State must show on or about such date and in bedroom

3. State was not required to establish that crime was committed on the precise date alleged in indictment, but, in keeping with its election, state must show that crime was committed on or about such date and in bedroom of defendant's household.

Criminal law — "On or about" — Approximate accuracy

4. The state, by using the words "on or about" date alleged in indictment in making its election, did not thereby put the time of offense at large but meant that the time alleged was stated with approximate accuracy.

See Words and Phrases, Permanent Edition, for other judicial constructions and definitions of "On or About".

Criminal law — Prosecution elects to proceed for an offense as of a certain date — Instructions

5. Where the prosecution elects to proceed for an offense as of a certain date, the instructions should limit jury to finding whether the offense was committed on that date, particularly when an alibi is claimed.

Criminal law — One offense — Time of commission not material — More than one similar act — State must make an election

6. Where the evidence discloses only one offense within the statutory period, the time of commission thereof is not material, but if the evidence tends to show more than one similar act, the state is required to make an election and time becomes material.

Rape — Sufficient to take prosecution to jury

7. Evidence that alleged offense occurred at the time and place relied upon by the state in its election was sufficient to take prosecution for statutory rape to jury.

Witnesses — Mental capacity — Discretion of trial court

8. The mental capacity of prosecuting witness to testify was a question for trial court to decide in the exercise of a sound legal discretion.

Witnesses — Voir dire examination

9. Defendant having any question as to mental capacity of prosecuting witness to testify should make timely request for a voir dire examination.

Insane persons — Voluntary commitment — State hospital — 30 days notice to leave

10. One received at state hospital for insane for psychiatric treatment on her voluntary application may, under statute, leave such institution after giving 30 days' notice of her intention so to do. O.C.L.A. § 127-214.

Witnesses — 14 years old — Voluntary commitment to state hospital for insane — Mental capacity not questioned until conclusion of cross-examination

11. A fourteen-year-old girl, who had been committed to state institution for wayward girls and transferred to state hospital for insane for psychiatric treatment on her own voluntary application and who was not shown to be insane, was mentally competent to testify in prosecution of her father for her alleged rape, particularly where her mental capacity to testify was not questioned until conclusion of her cross-examination. O.C.L.A. § 127-214.

Criminal law — Statutory rape — Evidence of similar offenses with same child

12. In prosecution for statutory rape, evidence of other similar offenses with the same child is admissible to show lustful disposition of defendant and probability that he committed the particular act charged, but admitting evidence that defendant committed similar offense upon another female is error.

Criminal law — Statutory rape — Evidence of sexual intercourse with other daughters

13. In prosecution for statutory rape allegedly committed upon defendant's daughter, admitting evidence that defendant had sexual intercourse with two other minor daughters and that such conduct continued over a course of years, was reversible error.

Criminal law — Statutory rape — Testimony of wife that defendant "started chasing around with other women"

14. In prosecution for statutory rape, testimony given by defendant's wife over objection that defendant after sterilization operation "got so bold with the girls and started chasing around with other women," was prejudicial and should have been stricken on motion. Criminal law — Statutory rape — Evidence in a general way the trouble that arose between defendant and wife on account of alleged relationship with daughter

15. In prosecution for statutory rape allegedly committed upon defendant's daughter, it was proper to show in a general way the trouble that arose between defendant and his wife on account of his alleged relationship with daughter, but the range of such evidence should be reasonably limited.

Criminal law — On or about date alleged in indictment — Instruction

16. Where state elected to rely on criminal act allegedly committed on or about date alleged in indictment, instruction that proof of commission of offense sometime within three years next preceding date of indictment was erroneous.

Criminal law — Statutory rape — Instruction concerning intercourse between defendant and other daughters

17. In prosecution for statutory rape allegedly committed upon defendant's daughter, instruction that any evidence concerning acts of intercourse between defendant and other daughters could be considered only for the purpose of shedding light upon the transaction for which defendant was on trial was misleading and erroneous.

Criminal law — Instruction relative to alibi — Invade province of jury

18. Refusal to give requested instruction relative to alibi, which tended to invade the province of jury on a question of fact, was not error.

Criminal law — Instruction — Alibi — Request

19. Where there was evidence the defendant was in the hospital at or about the time he was charged with having raped his daughter in their home, he was entitled to an instruction presenting defense of alibi upon request for an appropriate instruction covering such defense.

Criminal law — District attorney's argument — Improper statement

20. Statement by district attorney in argument to jury that defendant's wife had told attorney in his office why she had not left defendant after learning of his improper relations with daughter, was improper.

Criminal law — Record shows defendant had not had the kind of trial contemplated by law — Palpable errors, though waived

21. Where record considered in its entirety disclosed that defendant had not had the kind of trial contemplated by law, Supreme Court could properly take cognizance of palpable errors, though waived by defendant in taking exceptions and requesting instructions.

                  See: 22 C.J.S., Criminal Law, § 691
                

IN BANC.

Appeal from Circuit Court, Linn County.

VICTOR OLLIVER, Judge.

Laurence L. Morley and William R. Thomas, of Lebanon, argued the cause for appellant. On the brief were Arlo Cornell, of Sweet Home, and Morley & Thomas, of Lebanon.

Melvin Goode, District Attorney, and Courtney R. Johns, Deputy District Attorney, both of Albany, argued the cause and filed a brief for respondent.

Sam Pace was convicted in the Circuit Court of Linn County, Victor Olliver, J., of rape of defendant's fourteen-year-old daughter, and he appealed.

The Supreme Court, Belt, J., held that admitting evidence that defendant had sexual intercourse with two other minor daughters and that such conduct continued over a course of years was reversible error, and reversed the judgment.

BELT, J.

Defendant, a married man fifty years of age, was convicted of the crime of rape on his daughter, Barbara Jean Pace, who at the time of the alleged offense was fourteen years of age and a sophomore in the high school at Sweet Home, Oregon. He was sentenced to serve a term of twenty years in the penitentiary.

1. The contention of the defendant that there is no evidence to support the judgment of conviction and that he was entitled to a directed verdict of acquittal requires a brief statement of the facts. The indictment charges that the crime occurred on August 20, 1948. The State in the early part of its case in chief elected to rely "on the claimed act taking place in the Pace household on or about August 20, 1948, in the bedroom of Barbara Jean Pace and Shirley Pace." To such election, counsel for defendant interposed the following objection:

"We object to the introduction of any evidence for the purpose of proving a crime on any other than the Fairview occurrence which has previously been elected by the State in its evidence."

The Court properly overruled this objection as at such time there was no evidence tending to show the commission of the crime at any place other than that designated by the State in its election.

Defendant and his wife, together with three minor children, lived in a four-room house at Sweet Home, Oregon. The house had two bedrooms, a kitchen, and a living room. Defendant slept on a davenport in the living room; his wife and youngest daughter, Velda Modena, aged six years, slept together in one bedroom; and Barbara Jean, the prosecutrix, and her sister, Shirley, aged twelve years, slept in the adjoining bedroom.

In our opinion there is some substantial evidence tending to show that defendant committed the crime charged at the time and place upon which the State relies. Barbara was a very reluctant witness to testify against her father. She was greatly embarrassed and confused. It was a terrible ordeal for any young girl...