State v. Patton

• Decision Date: 08 November 1956
• Citation: 303 P.2d 513,208 Or. 610
• Parties: STATE of Oregon, Respondent, v. James A. PATTON, Appellant.
• Court: Oregon Supreme Court

Page 513

303 P.2d 513

208 Or. 610

STATE of Oregon, Respondent, v. James A. PATTON, Appellant.

Supreme Court of Oregon, In Banc.

Argued Sept. 20, 1956.

Decided Nov. 8, 1956.

Laurence L. Morley, Lebanon, argued the cause for appellant. On the briefs were Morley & Thomas, Lebanon, and Weatherford & Thompson, Albany.

Courtney R. Johns, Dist. Atty., Albany, argued the cause and filed a brief for respondent.

PERRY, Justice.

The defendant was convicted of armed robbery, and appeals.

The defendant, in effect, offered no evidence, and he states the court erred in instructing the jury as follows:

'Evidence is to be estimated not only by its own intrinsic weight, but also according to the evidence which it is within the power of one side to produce and of the other side to contradict; and if weaker and less satisfactory evidence is offered when it may appear to the jury that stronger and more satisfactory evidence was within the power of the party to produce, then the evidence offered should be viewed by you with distrust.'

The defendant asserts the giving of this instruction was a comment upon his failure to testify on his own behalf and violated the constitutional right given him against self-incrimination under Article I, § 12, of the Oregon Constitution. Reliance is placed upon the California decisions, People v. Cuff, 122 Cal. 589, 55 P. 407, and People v. Charles, 9 Cal.App. 338, 99 P. 383. In each of these cases an instruction identical with the one above set out was given by the trial court, and it was held to be erroneous, requiring a reversal of the conviction.

The reasoning of the California courts requiring reversal is set forth in People v. Cuff, supra, 122 Cal. at page 591, 55 P. at page 408, as follows:

'* * * The aforesaid section of the Code declares that the principles stated in the various subdivisions thereof may be given by the court to the jury upon all proper occasions. In criminal cases the proper occasions are so few, and the improper occasions are so many, that it were best that they should be given rarely, if at all. The instruction given in this case fully and fairly illustrates the danger suggested. Let us consider one objection to it. Here there is no suggestion whatever in the record that any important witness could have been produced by the defendant before the jury, and was not produced. Under such circumstances, certainly, the occasion was not a proper one upon which to give the instruction. But, upon the other hand, the defendant did not take the witness stand, and the practical application of the instruction necessarily points to that fact as a strong circumstance to be taken against him. To the ordinary mind there seems to have been no other reason or purpose in the giving of the instruction. Yet a defendant has the constitutional right to stand mute, and demand that the prosecution prove a case against him beyond a reasonable doubt. People v. Streuber , 53 P. 918.'

The instruction given is cautionary and refers solely to evidence introduced into the case. It advises the jury that in weighing the evidence which has been offered in the case by a party they may be distrustful of that evidence given if they believe the party offering such evidence could have produced or presented stronger or more satisfactory evidence upon the subject. The instruction in nowise comments upon the weight to be given evidence not introduced, nor the failure to produce any evidence at all. If this instruction stood alone perhaps credence could be given the reasoning of the California court. However, the instructions in a case are to be considered and construed as a whole and any erroneous impression that might be gathered from the giving of the instruction could not, in our opinion, mislead a jury into believing the defendant is required to take the witness stand or produce any evidence when the court instructs as the court did here, that 'The defendant is not required to prove or disprove any facts alleged in the case, but the burden of proof rests upon the State to prove the truth of the charge as read in the indictment beyond a reasonable doubt.' This instruction clearly told the jury that the defendant was not required to prove or disprove anything, but that the burden of establishing the truth of his commission of the crime lay wholly with the state.

While the instruction excepted to is not erroneous, and is authorized on all 'proper occasions' by ORS 17.250, we are of the opinion that in a criminal case caution should be exercised in giving this instruction, unless it is limited to the evidence offered by the state. State v. Thomson, 203 Or. 1, 278 P.2d 142.

No exception was taken upon the ground that the instruction was abstract.

The defendant's second assignment of error complains of the following instruction given by the trial court:

'When an assault with an intent to rob is made by threatening the intended victim with a firearm at close range, the jury may infer that the weapon was loaded.'

The defendant states that this is a comment upon the evidence to the effect that an assault had actually been made. The assignment is without merit.

The trial court, in the instruction complained of, does not in anywise tell the jury an assault with intent to rob has been committed, but only states that as an abstract proposition the law permits an inference to be drawn that a firearm is loaded whenever a firearm is used as a threat in close proximity of another person during an assault or robbery. State of Oregon v. Lanegan, 192 Or. 691, 703, 236 P.2d 438.

The defendant also assigns as error the failure of the trial court to grant his motion for a new trial. This assignment of error is based upon the failure of the trial court to instruct the jury to the effect that the defendant's failure to testify could not be considered as an inference of his guilt. Such an instruction is proper and should always be given when requested but, since it was not requested at the time of trial, any claimed error was waived. State v. Magers, 36 Or. 38, 53, 38 P. 892.

We are of the opinion that the record is free from prejudicial error.

The judgment is affirmed.

ROSSMAN, Justice (dissenting).

Referring to the jury, ORS 17.250 says:

'* * * They are, however, to be instructed by the court on all proper occasions:

* * *

* * *

'(6) That evidence is to be estimated, not only by its intrinsic weight, but also according to the evidence which it is in the power of one side to produce and in the other to contradict; and therefore,

'(7) That if weaker and less satisfactory evidence is offered when it appears that stronger and more satisfactory was within the power of the party, the evidence offered should be viewed with distrust.'

In this case, the trial judge read to the jury those two subdivisions of our laws. The defendant duly excepted to that action. Since ORS 17.250 says that the instructions proposed by it shall be given upon 'proper occasions,' the problem presents itself: Did this case constitute a proper occasion for giving those instructions? I add that the trial judge did not indicate to the jury that the defendant had a lawful right to refrain from testifying, nor did he tell the jury that no inferences adverse to the defendant could be drawn from his election to remain mute.

It will be observed that subsection (7) is in the nature of an admonition. It calls attention to a prima facie fault in the evidence of the party who presented 'weaker and less satisfactory evidence' when he had at his command something better. It cautions the jury to be circumspect before it accepts as truthful evidence presented by that party. Subsection (7) is in truth comment upon the evidence, but, since the statute authorizes it, no error is committed when the statutory mandate is met, provided the occasion is a proper one.

The district attorney's brief, in an effort to show that the challenged instructions were not erroneous, states:

'In the instant case, since it is clear the instructions could only be applied to the prosecution, and since the defendant's counsel clearly invited the court to give the instruction, the instruction was a proper one and not misleading or injurious, and therefore not erroneous or prejudicial.'

It will be observed that the district attorney, referring to the challenged instruction, says, 'the instruction could only be applied to the prosecution.' I am aware of no basis for that statement. Although the district attorney must be intimately familiar with the evidence which he presented, his brief does not single out any feature of his case wherein he presented 'weaker and less satisfactory evidence' where 'stronger and more satisfactory' was available to him. I have read every word of the transcribed evidence without discovering any situation which called for an admonition that if 'weaker and less satisfactory evidence' was presented by either party, who had at his command 'stronger and more satisfactory * * *, the evidence offered should be viewed with distrust.'

Obviously, subsection (7) should not be read to the jury as a matter of rote, but only for the purpose of giving the triers of fact a rule which experience commends as useful in scrutinizing the evidence and aiding in the discovery of the truth. The statute, as we have seen, says that the instruction shall be given upon 'proper occasions' only. Since the statute and good sense place that limitation upon the use of the...