State v. Scott

• Decision Date: 28 October 1895
• Citation: 28 Or. 331,42 P. 1
• Parties: STATE v. SCOTT.
• Court: Oregon Supreme Court

42 P. 1

28 Or. 331

STATE v. SCOTT.

Supreme Court of Oregon

October 28, 1895

Appeal from circuit court, Lane county; J.C. Fullerton, Judge.

Duncan Scott was convicted of adultery, and appeals. Reversed.

Geo. B Dorris and Geo. A. Dorris, for appellant.

C.M. Idleman, Atty.Gen., for the State.

MOORE J.

The defendant, an unmarried man, having been indicted tried, and convicted of the crime of adultery, committed in Lane county with one Louisa Babb. wife of A.J. Babb, was sentenced to imprisonment in the penitentiary for the term of one year. From this judgment the defendant appeals, and assigns as error the denial by the court of his request that it instruct the jury to find a verdict of acquittal.

It is disclosed by the bill of exceptions that said Louisa Babb testified, as a witness for the state, over the defendant's that on July 12, 1894, concluding to abandon her husband, she engaged one Sid Horn to come to her house after her clothing, which he did on the following day; that she left her home in his company about 11 o'clock in the forenoon, and, after going a short distance, met, without any previous agreement, the defendant, whom she did not like, nor look upon as her friend, and, not desiring to be seen by others, she remained in the woods with the defendant until about 9 o'clock that evening, during which time she had sexual intercourse with him; that while in his company they ate a lunch consisting of pickles, cheese, cold beef, and bread; that at the time last mentioned she went to Sid Horn's house, and in an hour or more thereafter the defendant called there, but soon went away; that on the following morning, at about 2 o'clock, she left Eugene on the train for Portland, to seek work, and to visit the coast that on entering a car she saw the defendant, who told her to go into another car, which she found, on entering, to be the smoking car; that on arriving at Portland the defendant ordered a cab, and she was conveyed to an hotel, where, that night, she occupied the same bed, and had sexual intercourse with him. The following evidence was also introduced, and admitted, over the defendant's objection, as tending to corroborate the testimony of Mrs. Babb: E.H. How testified that on July 13, 1894, he was engaged in the business of keeping a restaurant at Eugene, and at 8 o'clock in the morning of that day he put up a lunch for the defendant, consisting of sandwiches, pickles, cheese, and cake. Sid Horn testified that about 9 o'clock in the forenoon of the same day the defendant came to his house, and invited him to go fishing, but he declined the invitation; that he did not tell the defendant anything about his agreement to go after Mrs. Babb's clothing, or that she intended to leave her husband; that the defendant went with him in the direction of Mrs. Babb's house, but remained at the river, fishing, while the witness went to the house after Mrs. Babb's clothing; that about 11 o'clock, having obtained the clothing, he returned, in company with Mrs. Babb, to the place where he left the defendant; that Mrs. Babb, not desiring to go to the witness' house until evening, remained with the defendant; that about 4 o'clock in the afternoon of that day he and his wife, Lillian Horn, saw the defendant and Mrs. Babb together in the woods; and that the defendant, on the morning of July 14th, left Eugene, to go to Vancouver, Wash., to get some horses he owned. Lillian Horn testified that she saw Mrs. Babb and the defendant together in the woods at about 4 o'clock in the afternoon of July 13, and also that the defendant called at her house, and saw Mrs. Babb, about 10 or 11 o'clock that night, but soon went away. T.G. Hendricks testified that on the morning of July 14, 1894, he went on the train from Eugene to Portland; that, as he entered the car at Eugene, he saw the defendant seated therein, and also saw Mrs. Babb enter the car with a valise, and heard some one--but could not say who--tell her to go into another car. A.G. Mathews testified that he saw Mrs. Babb enter the smoking car of the train, at Eugene, on July 14th, and told her she ought to go into another car.

In view of this evidence, it is contended that Louisa Babb, if her testimony is to be believed, was an accomplice; that her admissions and confession have not been corroborated upon the material issue; and that the court erred in refusing to give the instruction requested. "At common law," says Strahan, J., in State v. Jarvis, 18 Or. 360, 23 P 251, "and in the absence of any statute governing the subject, it was the practice of judges to tell juries that they might legally convict on the evidence of an accomplice alone, if they thought they could safely rely on his testimony, but, at the same time, to advise them never to act on the evidence of an accomplice, unless he be confirmed as to the particular person who was charged with the offense. 1 Whart.Cr.Law, § 785. And Baron Parke said that it had always been his practice to tell the jury not to convict the prisoner unless the evidence of the accomplice be confirmed, not only as to the circumstances of the crime, but also as to the person of the prisoner. Id. § 787, and authorities there cited." "It," says Gray, C.J., in Com. v. Holmes, 127 Mass. 424, "has always been held that a jury might, if they saw fit, convict on the uncorroborated testimony of an accomplice. Lord Hale, Lord Holt, and Lord Mansfield treated the question of his credibility as one wholly for the determination of the jury, without any precise rule as to the weight to be given to his testimony." But, whatever the rule may have been at common law, the statute now provides that "a conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of crime, and the corroboration is not sufficient if...