State v. Patton

CourtSupreme Court of Oregon
Writing for the CourtPERRY; ROSSMAN
Citation303 P.2d 513,208 Or. 610
Decision Date08 November 1956
PartiesSTATE of Oregon, Respondent, v. James A. PATTON, Appellant.

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.

Page 514

[208 Or. 611] 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 [208 Or. 612] 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

Page 515

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 [121 Cal. 431], 53 P. 918.'

The instruction given is cautionary and refers solely to evidence introduced into the case. It advises [208 Or. 613] 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.

[208 Or. 614] 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,

Page 516

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...

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11 practice notes
  • Lakeside v. Oregon, No. 76-6942
    • United States
    • United States Supreme Court
    • March 22, 1978
    ...settled in Oregon, however, that a defendant has an absolute right to require such an instruction. State v. Patton, 208 Or. Page 338 610, 303 P.2d 513.7 The petitioner in the present case does not question this rule, nor does he assert that the instruction actually given was in any respect ......
  • State v. Mains, No. 74-0191
    • United States
    • Supreme Court of Oregon
    • September 27, 1983
    ...draw no unfavorable inference from the defendant's failure to testify. State v. Holleman, 225 Or. 7, 357 P.2d 264 [1960]; State v. Patton, 208 Or. 610, 612, 303 P.2d 513 [1956]; State v. Thomson, 203 Or. 1, 16, 278 P.2d 142 In State v. Greene, 36 Or.App. 281, 287, 583 P.2d 1171, rev. den. 2......
  • State v. Lakeside
    • United States
    • Supreme Court of Oregon
    • March 17, 1977
    ...has an absolute right to have such an instruction given under State v. Hale, 22 Or.App. 144, 537 P.2d 1173 (1975), and State v. Patton, 208 Or. 610, 303 P.2d 513 (1956), the giving of the instruction over his objection unjustifiably interfered with his trial strategy to avoid any mention of......
  • State v. Betts
    • United States
    • Supreme Court of Oregon
    • July 24, 1963
    ...can draw no unfavorable inference from the defendant's failure to testify. State v. Holleman, 225 Or. 7, 357 P.2d 264; State v. Patton, 208 Or. 610, 612, 303 P.2d 513; State v. Thomson, 203 Or. 1, 16, 278 P.2d VI The physician who treated the defendant when he was brought into the hospital ......
  • Request a trial to view additional results
11 cases
  • Lakeside v. Oregon, No. 76-6942
    • United States
    • United States Supreme Court
    • March 22, 1978
    ...settled in Oregon, however, that a defendant has an absolute right to require such an instruction. State v. Patton, 208 Or. Page 338 610, 303 P.2d 513.7 The petitioner in the present case does not question this rule, nor does he assert that the instruction actually given was in any respect ......
  • State v. Mains, No. 74-0191
    • United States
    • Supreme Court of Oregon
    • September 27, 1983
    ...draw no unfavorable inference from the defendant's failure to testify. State v. Holleman, 225 Or. 7, 357 P.2d 264 [1960]; State v. Patton, 208 Or. 610, 612, 303 P.2d 513 [1956]; State v. Thomson, 203 Or. 1, 16, 278 P.2d 142 In State v. Greene, 36 Or.App. 281, 287, 583 P.2d 1171, rev. den. 2......
  • State v. Lakeside
    • United States
    • Supreme Court of Oregon
    • March 17, 1977
    ...has an absolute right to have such an instruction given under State v. Hale, 22 Or.App. 144, 537 P.2d 1173 (1975), and State v. Patton, 208 Or. 610, 303 P.2d 513 (1956), the giving of the instruction over his objection unjustifiably interfered with his trial strategy to avoid any mention of......
  • State v. Betts
    • United States
    • Supreme Court of Oregon
    • July 24, 1963
    ...can draw no unfavorable inference from the defendant's failure to testify. State v. Holleman, 225 Or. 7, 357 P.2d 264; State v. Patton, 208 Or. 610, 612, 303 P.2d 513; State v. Thomson, 203 Or. 1, 16, 278 P.2d VI The physician who treated the defendant when he was brought into the hospital ......
  • Request a trial to view additional results

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