State v. Smith

• Decision Date: 06 September 1961
• Parties: STATE of Oregon, Respondent, v. Ernest Leroy SMITH, Appellant.
• Court: Oregon Supreme Court

Page 786

364 P.2d 786

228 Or. 340

STATE of Oregon, Respondent, v. Ernest Leroy SMITH, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted July 5, 1961.

Decided Sept. 6, 1961.

Duane R. Ertsgaard, Salem, argued the cause and filed a brief for appellant.

Donald H. Turner, Dist. Atty., The Dalles, argued the cause and filed a brief for respondent.

Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and LUSK, JJ.

LUSK, Justice.

The defendant, Ernest Leroy Smith, was convicted of the crime of assault with intent to kill and appeals.

The charging part of the indictment reads:

'The said Ernest Leroy Smith on the 2nd day of March, A.D. 1957 in the County of Wasco and State of Oregon, then and there being, then and there armed with a dangerous weapon, towit, a loaded pistol, did then and there unlawfully and feloniously assault one Robert W. Brower, with said dangerous weapon by then and there shooting at and toward him, the said Robert W. Brower, with said loaded pistol, with intent on the part of him, the said Ernest Leroy Smith, to then and there unlawfully and feloniously kill the said Robert W. Brower, who was then and there within shooting distance of said loaded pistol, contrary * * *.'

Robert W. Brower, the victim of the alleged assault, was a police officer of The Dalles, Oregon. At about four o'clock on the morning of March 2, 1957, he was on patrol duty in his automobile which was parked near the city limits off the Columbia River Highway with its headlights aimed across the highway. A 1949 Buick convertible automobile came within his view. He noticed two young fellows, one of whom was the defendant, inside the convertible and, his suspicion being aroused, followed it into the downtown section of the city. As a signal to the occupants of the Buick to stop, he turned on his red light and sounded his siren. Instead of stopping, however, the Buick, which was being driven by the defendant's companion, speeded up and Officer Brower gave chase. Shots were fired in his direction from the Buick. Brower fired twice himself. He lost sight of the Buick momentarily and when next it came into view it was stopped with the left rear fender badly crumpled and torn, apparently as the result of a collision with a telephone pole. Brower saw a man run across the highway towards the river firing as he ran from a gun held in his right hand over his left arm. This man was the defendant. Brower saw the flash of several shots. He got out of his car and about that time another police car came upon the scene. A short time afterwards, the defendant was arrested by a city policeman as he was walking along the highway near the place where the Buick was disabled.

The foregoing facts were established by uncontradicted evidence.

In addition, there was received in evidence a signed statement of the defendant which the jury might rightly have considered a confession of guilt. Among other things, the defendant said in this statement that he fired eight shots towards Officer Brower's car while the cars were in motion. At a preliminary hearing in chambers upon the question of the admissibility of this statement, the defendant testified to mistreatment by the police and promises by the police of their help if he would cooperate and threats by them to do their best to hang him if he refused to cooperate. He did not, however, testify before the jury. The testimony of the police on this issue was that there were no threats, no promises, and no mistreatment of the defendant. The court properly ruled that the statement was admissible and submitted to the jury's determination the question whether it was given freely and voluntarily. No complaint is made of this ruling.

We proceed to a consideration of the assignments of error relating to questions properly raised in the record. We do so notwithstanding the failure of counsel for the defendant to comply with Rule 19 of this court and Appendix B to the rules which require that when the assignment is to a ruling on an objection to evidence the brief shall set forth the question, the objection made and the answer.

The court admitted in evidence three photographs of the rear of the Buick automobile showing holes in the rear window which could have been made by bullets. Before their admission the witness Brower had testified that when he was in pursuit of the Buick he 'saw some holes appear in the back window of the convertible and heard reports like gun shot.' The defendant's counsel objected to the offer of the photographs on the grounds that 'no proper foundation [was] laid' and that they were 'immaterial and irrelevant as to this defendant.' The admission of the exhibits is assigned as error. The record shows that the photographs depicted the condition and appearance of the rear window as it was observed by Officer Brower immediately after the shooting. They tender to corroborate his testimony that he was shot at through the rear window of the Buick and were, therefore, neither irrelevant nor immaterial as to the defendant, who was proved to be an occupant of the fleeting car. It is now argued, however, that the automobile itself should have been exhibited to the jury and the 'best evidence' rule is invoked. This rule applies only to writings. McCormick, Evidence (Hornbook Series) § 195. It is said that the rear window of the vehicle would show that the bullet holes were made by projectiles entering, rather than leaving, the vehicle. No such contention was made when the photographs were offered in evidence nor was it suggested by counsel for the defendant that the automobile itself be exhibited to the jury. At the most, a request of that kind would have been addressed to the discretion of the court. Natwick v. Moyer, 177 Or. 486, 498, 163 P.2d 936. Had it been made, there is nothing in the record to indicate that the court would have denied it or even that the state would have objected to it. Certainly, the grounds of objection as stated by counsel do not point to the question raised in this court. The phrase 'no proper foundation [was] laid' in the context of this claim of error is a mere ritualistic formula. As the court said in Kennedy v. Woods, 131 Neb. 217, 220, 267 N.W. 390, 392:

'* * * If there was some particular respect in which the proof of foundation was lacking, the trial court's attention should have been specifically directed thereto by appropriate objection. * * *'

The assignment of error is without merit.

Error is assigned to the admission of fingerprint testimony given by the witness Clark Johnson, over the defendant's objections to the qualifications of the witness to testify as an expert on that subject. Johnson identified fingerprints 'lifted' from the right door glass of the Buick convertible as the fingerprints of the defendant by the usual method of comparing the lifted fingerprints with fingerprints of the defendant made at the time he was lodged in the city jail. Johnson commenced studying textbooks on the subject of fingerprints under the direction of the director of the State Bureau of Identification in 1936, when he joined the Oregon State Police. Since 1946, he has been a fingerprint technician in the Bureau of Identification, his duties having been to classify and identify fingerprints and compiles records of persons fingerprinted. He learned by 'inservice training the classification and identification of latent finger prints.' He had testified as an expert on the comparison and identification of fingerprints in other court cases. The question of the witness' qualifications was addressed to the discretion of the trial court, Douglas County v. Myers et al., 201 Or. 59, 65, 268 P.2d 625, and there was no abuse of that discretion. Counsel for defendant seems to think that the witness was not qualified because he had never received formal training in a fingerprint school, but there is no such rule either regarding expert testimony in general (20 Am.Jur. 657-658, Evidence, § 784) or fingerprint testimony in particular. 2 Wharton, Criminal Evidence 335, 12th ed., § 510.

On the twenty-fifth of March, 1957, Sam J. Yoder, the proprietor of a restaurant, found a P-38 German pistol on the property of Dielschneider Equipment Company in The Dalles and turned it over to the police. The pistol was received in evidence over the objection of the defendant and the ruling is assigned as error. The assignment is without merit. The place where the pistol was found is in the immediate vicinity of the place where the Buick convertible was disabled and abandoned by the defendant and his companion. There was evidence that a bullet fired through the rear window of the Buick convertible struck the front of Officer Brower's car. A fragment of the metal jacket covering of the bullet was discovered behind the car's emblem. A ballistics expert testified that the fragment was fired from the pistol found by Yoder.

There can be no doubt about the right of the prosecution to introduce in evidence weapons used in the commission of a crime. State v. Chin Ping, 91 Or. 593, 604, 176 P. 188; State v. Pender, 72 Or. 94, 107, 142 P. 615; 2 Wharton, Criminal Evidence 622, 12th ed., § 677. Of course the element of relevancy must be present. We think that it is a reasonable inference from the evidence outlined above that the pistol received in evidence was used by the defendant in the commission of the crime charged. Counsel for the defendant insists that the ruling was error because the pistol was admitted prior to the testimony of the ballistics expert. It is arguable that even without that evidence the pistol should have been received; but putting that to one side, the order of proof is within the discretion of the trial judge and it is immaterial on appeal whether the evidence was admitted before or after its relevancy was established.

The defendant contends that at the time of the commission of the alleged offense no statute provided a penalty for...