State v. Rosser

Decision Date23 May 1939
PartiesSTATE <I>v.</I> ROSSER ET AL.
CourtOregon Supreme Court

RAND, C.J., and KELLY, J., dissenting.

[162 Or. 295]

ON THE MERITS

Indictment and information — Sufficiency

14. An indictment charging arson, which was drawn in the language of statute, was sufficient.

Criminal law — Motion for directed verdict

15. A motion for directed verdict, being in the nature of a demurrer to the evidence, admitted truth of evidence as disclosed by record and every reasonable inference that might be drawn therefrom.

Criminal law — Evidence — Jury

16. Where different reasonable inferences can be drawn from the evidence, the question is one exclusively within province of jury, and the court does not have the function to substitute its judgment on questions of fact for the judgment of the jury.

Criminal law — Motion for directed verdict

17. In determining whether trial court erred in denying motion for directed verdict for accused, record would be viewed in light most favorable to the state, and supreme court was not concerned with weight of the evidence nor with conflict of evidence.

Criminal law — Accomplice — Corroboration

18. Where objection is made by accused that there is no evidence tending to connect accused with commission of crime, corroborating testimony of accomplice, legality of verdict must be tested in light of strongest statement of case against accused that can reasonably be made from the evidence.

Criminal law — Accomplice — Corroboration

19. Evidence tending to connect accused with commission of crime, corroborating testimony of accomplice, need not be direct and positive, and may be circumstantial in character.

Criminal law — Accomplice — Corroboration

20. Only requirement of statute providing that conviction may not be had on testimony of accomplice without corroboration is that, in addition to testimony of accomplice, there be some evidence, however slight, tending to connect accused with commission of crime.

Criminal law — Arson

21. Evidence corroborating testimony of accused's accomplices sustained conviction of arson.

Criminal law — Witnesses

22. Veracity of witnesses is for jury.

Criminal law — Aider and abettor

23. An accessory after the fact is not an "aider and abbettor" within statute providing that all persons concerned with commission

[162 Or. 296]

of a felony are punishable as principals whether they directly commit the act constituting the offense or aid and abet in the commission.

Criminal law — Aider and abettor

24. An "aider and abettor", within statute providing that all persons concerned with commission of a felony, whether they directly commit the act, constituting the crime or aid and abet in its commission, are punishable as principals, is one who advises, counsels, procures, or encourages another to commit a crime, though not personally present at time and place of commission of the offense.

Criminal law — Aider and abettor

25. In arson prosecution, wherein there was no evidence in record from which it could reasonably be inferred that accused was an accessory after the fact, and theory of state was that accused aided and abetted in commission of the crime, error in instruction that "aiding and abetting" is intentionally giving assistance to actual perpetrator of crime before, "after" or during its commission, resulting from use of word "after", was harmless in view of charge in its entirety.

Criminal law — Instructions

26. In arson prosecution, refusal of abstract instruction that, even though jury might believe that accused assisted perpetrators of crime to escape arrest or punishment after the crime had been completed, jury would still have duty to find accused not guilty because accused was not charged with offense of aiding the perpetrators to escape arrest or punishment, was proper.

Criminal law — Instructions

27. In arson prosecution, refusal of instruction that, even though jury might believe that accused assisted perpetrators of crime to escape arrest or punishment after the crime had been completed, jury would still have duty to find accused not guilty because accused was not charged with offense of aiding the perpetrators to escape arrest or punishment, was proper, because calling for verdict of not guilty even though it might be established that accused aided and abetted commission of crime.

Arson — Criminal law — Evidence

28. In arson prosecution of union official, who allegedly aided and abetted commission of the crime, testimony relating to statement made by union organizer in presence of accused, in defense of accused's policy of accounting for expenditure of union's funds, to effect that organizer knew of a case where money changed hands between persons on the street, and that subsequently a witness in criminal case failed to show up for trial, was admissible as tending

[162 Or. 297]

to support state's theory of common plan in which accused participated to cover illegal expenditure of union funds.

Witnesses — Impeachment

29. In arson prosecution wherein a witness for state, who was reluctant and unreliable, denied having been paid money by accused, state had right to contradict the witness by directing his attention to written statement made by him relative to receipt of a check by the witness from accused.

Criminal law — Evidence

30. In arson prosecution, check allegedly drawn by accused in favor of a reluctant and unreliable witness for the state, who admitted participation in the crime charged, was admissible to show accused's association and dealing with the witness.

Criminal law — Ball

31. Contention that bail of accused who was charged with arson was fixed in an...

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