State v. Stone
| Decision Date | 20 May 1924 |
| Citation | 111 Or. 227,226 P. 430 |
| Parties | STATE v. STONE. |
| Court | Oregon Supreme Court |
Department 1.
Appeal from Circuit Court, Lane County; G. F. Skipworth, Judge.
George Stone was convicted of commission of an act which manifestly tended to cause a child to become delinquent, and he appeals. Reversed and remanded.
H. E. Slattery, of Eugene (Walter B. Jones, of Eugene, on the brief), for appellant.
Clyde N. Johnston, of Eugene, for the State.
The indictment in this case is for the commission of an act which manifestly tends to cause a child to become a delinquent. It is averred that the child in question was an unmarried female of the age of 8 years, and, in substance, that the defendant manipulated her genitals, and that this act was one which manifestly tended to cause her to become a delinquent child. On the plea of not guilty, the defendant was convicted, and from the ensuing judgment has appealed.
One class of the assignments of error relates to testimony about inducing witnesses for the prosecution to go to California in order to avoid being present at the trial. When the mother of the child was on the witness stand for the prosecution, the following occurred:
Any fair construction of the testimony and proceeding thus narrated indicates that they referred to Mr Jones, who was of counsel for the defendant and was called as a witness on behalf of the defendant. Upon his cross-examination by the district attorney he was asked if he did not pay the mother of the child certain specified sums of money to induce her to take the prosecuting witnesses out of the state. All of this he denied. The mother was recalled to the stand, and, over the objection of the defendant that it was irrelevant, immaterial, and incompetent, was permitted to testify again that Jones had paid her money to take the children out of the state. In charging the jury with respect to the testimony about the money transaction between Jones and the mother of the child, the court said:
"In this connection this testimony can be considered by you only for the purpose of weighing the testimony of the witness Walter B. Jones, and to be considered by you for that purpose and no other purpose, as affecting his credibility and going to the weight you shall give his testimony, and as affecting his motive and his credibility as a witness."
The defendant, by his counsel, excepted to this instruction.
It was error to admit to the hearing of the jury the testimony about taking the witnesses out of the jurisdiction without also showing that it was done by the authority or with the knowledge and consent of the defendant. This principle is established by the case of State v. Day, 22 Or. 160, 29 P. 352. The authorities are cited and collated more amply in State v. Rader, 94 Or. 432, 444, 186 P. 79.
In avoidance of the application of this principle, however, the prosecution contends that the objection that the testimony about taking the children to California was immaterial is not sufficient to raise the question and exclude the testimony. Be that as it may, if the objection was insufficient, the whole of that transaction was open to inquiry, and the case was allowed to proceed as if Jones had authority thus to represent the defendant in that matter. In that view of the case, it became a material question of fact whether Jones did procure the transportation of the witnesses to California. The state put in its testimony on that subject, and for the purposes of the dilemma, we will assume that it had a right to produce that testimony. On that theory the defendant had a right to overcome that with contradictory testimony and the jury was entitled to consider it for whatever it might deem it to be worth on the full question of whether or not the witnesses were induced by or on behalf of the defendant to absent themselves from the trial. The court had no right to restrict the application of that testimony merely to the purpose of discrediting Jones and affecting the weight of his testimony. Hence on this branch of the case it is clear that, if properly objected to, the testimony about abducting the witnesses was error unless it was also made to appear that the defendant authorized or approved it. If confirmation of his approval was waived, then it was competent for the defendant to meet the testimony by contradictory evidence, and the court could not limit it to the subordinate feature relating to the mere weight of his testimony. It was error to admit the testimony about taking the children to California without also showing that it was authorized by the defendant or, if the exception was not sufficient to raise the objection to the testimony, it was wrong as the court did to restrict its effect.
A further assignment of error is to the effect that the court erred in proceeding with the trial of the defendant without first having determined whether or not he was mentally competent to make a rational defense. We have no statute regarding such a preliminary procedure. The most that can be said is that it rests in the discretion of the trial court to order such a preliminary inquiry. The record, however, is barren of any indication that the defendant, either in person or by counsel or next friend or otherwise, applied to the court to conduct such an inquiry. In that state of the record we cannot consider the question because it is not error alone, but error legally excepted to which can be considered on appeal. In the case of State v. Foot You, 24 Or. 61, 32 P. 1031, 33 P. 537, the court following Kearney v. Snodgrass, 12 Or. 311, 7 P. 309, and State v. Tamler, 19 Or. 528, 25 P. 71, 9 L. R. A. 853, said:
"If a party desires to raise a question in this court as to the competency of evidence offered in the trial court, or of any other supposed irregularity of that court, either of omission or commission, he must, at the time, make his objection, and thereby obtain a ruling of the court, and, if adverse, he must save an exception, and bring it here by a proper bill of exceptions."
This doctrine has been followed consistently ever since. The only thing occurring at the trial in relation to this subject was during the argument of counsel for the defense before the jury, wherein he asserted, in substance, that the defendant because of his mental condition, had been absolutely unable to render any assistance to his counsel during the whole trial and prior thereto. ...
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