State v. Russell

• Decision Date: 18 February 1913
• Citation: 64 Or. 247,129 P. 1051
• Parties: STATE v. RUSSELL.
• Court: Oregon Supreme Court

129 P. 1051

64 Or. 247

STATE v. RUSSELL.

Supreme Court of Oregon

February 18, 1913

Appeal from Circuit Court, Douglas County; J.W. Hamilton, Judge.

Ed Russell was convicted of incest, and he appeals. Affirmed.

W.W. Cardwell, of Roseburg, for appellant.

George M. Brown, of Roseburg (L.A. Liljeqvist, of Coquille, on the brief), for the State.

BEAN J.

The crime is alleged to have been committed by defendant having incestous intercourse with Lena Macklin, the daughter of the defendant's sister. At the close of the state's case defendant's counsel moved the court to direct a verdict of acquittal on the ground of insufficiency of the evidence to be submitted to the jury. The contention of counsel is that the testimony of the prosecutrix, Lena Macklin, who is an accomplice, is not corroborated by any evidence tending to connect the defendant with the commission of the crime, in compliance with section 1540, L.O.L. Corroborative evidence is additional evidence of a different character to the same point. Section 701, L.O.L.; State v. Scott, 28 Or 331, 42 P. 1. See, also, State v. Wong Si Sam, 127 P. 683. The offense was charged to have been committed December 1, 1909. The girl was then of the age of 16 years and the defendant 29 years of age. At the time of the trial, November 16, 1911, a child, then about 14 months old, which the prosecutrix testified was the child of the defendant and the issue of the illicit intercourse, was, over the objection and exception of the defendant, exhibited to the jury in evidence. This was for the purpose of corroborating her testimony. It was claimed by the prosecutrix that the child resembled the defendant.

The deputy sheriff who arrested the defendant testified that, when the defendant was arrested, he stated, "I will make some of the rest of the s____s of b____s smoke." C.O. White, a witness for the state, testified that soon after that time the defendant, referring to the case, said to his brother and another as they passed the witness, in effect, "that others were implicated as well as him in it, and that he would make it lively for them." It is maintained by the prosecution that the evidence referred to corroborates sufficiently the testimony of the accomplice. Counsel for the defendant contends that such evidence does not comply with the statute, or tend to connect the defendant with the commission of the offense. The evidence of the officer and Mr. White was fairly susceptible of being construed by the jury as an admission by the defendant that he, as well as others, had had improper relations with the prosecutrix. The jury may well have believed that the defendant had in mind, when he made the statement, the paternity of the child, and was endeavoring to minimize the chance of his being the father of it.

While under our statute (L.O.L. § 868, subd. 4) the oral admission of a party ought to be viewed with caution, this goes to the weight of the evidence, and is a matter for the jury to determine under proper instructions.

Counsel for the defendant earnestly contends that the resemblance of the child to defendant, if...