State v. Tracy
| Decision Date | 22 March 1967 |
| Citation | 425 P.2d 171,246 Or. 349 |
| Parties | STATE of Oregon, Respondent, v. Merle Lee TRACY, Appellant. |
| Court | Oregon Supreme Court |
Hal F. Coe, Klamath Falls, argued the cause for appellant. On the brief were Coe & Brandness, Klamath Falls.
Sam A. McKeen, Dist. Atty., Klamath Falls, argued the cause and filed a brief for respondent.
Before McALLISTER, CJ., and PERRY, O'CONNELL, DENECKE, and REDDING, JJ.
The defendant, Merle Lee Tracy, was convicted by a jury in Klamath County on both counts of a two-count indictment. He was sentenced to 10 years in the penitentiary on count one, in which he was charged with forcible rape, and was sentenced to a six-year consecutive term in the penitentiary on count two, in which he was charged with assault with a dangerous weapon. Defendant appeals.
On the 24th of July, 1965, the defendant in company with his pregnant wife, attended a 'keg party' at a gravel pit near Lake O The Woods some distance from Klamath Falls. The party started at about 8:00 or 8:30 P.M. The complaining witness, Kitty Kirkes, was also at the party and was known casually by the defendant. At approximately 11:30 P.M., the defendant, his wife, one Harvey Kammerer and one Diane Malzahn left the party and returned to Klamath Falls. Upon reaching Klamath Falls, the defendant left his wife off at the home of his parents. The defendant, accompanied by Harvey Kammerer and Diane Malzahn, then drive to a tavern to pick up some more beer. From there, they proceeded to the home of Diane Malzahn, 320 North 5th Street, Klamath Falls. Diane Malzahn disembarked at her residence and the defendant, accompanied by Harvey Kammerer, went for a drive that they might talk. Approximately thirty minutes later, they stopped at the home of defendant's friend David Bernard to 'continue their drinking.' This home was located about one mile from the house where Diane Malzahn lived. While in the home of David Bernard, the defendant provoked a fight with his friend and host. Testimony concerning defendant's participation in said fight was received in evidence over the objection of the defendant.
Thereafter, and at approximately 2:00 A.M., the defendant drove Harvey Kammerer to Diane Malzahn's house. When they arrived, Diane Malzahn, Kitty Kirkes and Steve Arnett were at the house, Kitty Kirkes being with Steve Arnett, who had accompanied her to the party earlier in the evening.
Approximately one-half hour after arriving at the house, the defendant and Kitty Kirkes left in the defendant's car, taking some beer with them. They drove to an area near Spirit Lake Road. The prosecutrix testified that the defendant turned down a dirt road near a canal and that because of excessive speed the car was driven into a marsh where it became stuck. According to the testimony of the prosecutrix, shortly after alighting from the immovable car the defendant held a hunting knife to her throat thus forcing her to disrobe and submit to sexual intercourse on the ditch bank near the car. The defendant then attempted to get his car out of the marsh, was unable to do so, after which he and the prosecutrix walked to a nearby farm where the defendant took a truck which he used in an attempt to pull his car from the marsh. Failing in this attempt, the defendant again had sexual intercourse with the prosecutrix in the seat of the truck. Using the truck, the defendant then drove the prosecutrix to the M & M Diesel restaurant and garage that he might obtain a wrecker. This was about 6:00 or 6:30 in the morning. Pursuant to her request by phone, Kitty Kirkes was then picked up and taken to Klamath Falls by her friends, Harvey Kammerer and Diane Malzahn. The defendant returned the truck to the farm from which he had taken it and then returned to the area in which his car was struck. Shortly after arriving at his car, defendant was picked up by a state police officer on a charge of forcible rape. Defendant was taken to the city jail in Klamath Falls where he was placed under arrest and advised fully of his legal rights. The following afternoon, after he was arraigned before a district judge, he was transferred to the county jail, where trial exhibits 21 and 23, the defendant's suntan pants and shorts, were taken from him without his being advised further of his legal rights. Expert testimony was received that a stain on the front of the pants was blood. These exhibits were introduced for the purpose of corroborating the state's evidence that the defendant had had sexual intercourse with the prosecutrix.
Defendant admitted that he had had sexual intercourse with Kitty Kirkes on the two occasions to which she testified. Defendant contends, however, that the prosecutrix freely consented to said acts without force or coercion on his part.
On the morning of the trial, and prior to the beginning thereof, counsel for defendant, in the trial judge's chambers, announced:
'One other thing, for the record, the defendant would demur to the indictment on the grounds and for the reasons that it states two causes of action and does not state one cause of crime, it is a two count indictment.'
It will be noted that the demurrer of the defendant did not attack the sufficiency of the allegations in either count of the indictment, but rather challenged the right of the state to join the two counts in the indictment.
The defendant, in his appeal, asserts four assignments of error. In his first and principal assignment of error, he contends the court erred in sustaining the indictment thus allowing the joinder of the two counts, which the defendant challenged by demurrer.
The indictment charged the defendant as follows:
'COUNT 1
'The said Merle Lee Tracy on or about the 25 day of July, A.D. 1965 in the said County of Klamath and State of Oregon, then and there being, did then and there unlawfully, feloniously and forcibly ravish and carnally know one Kitty Kirkes, a female, contrary to the statutes in such cases made and provided and against the peace and dignity of the State of Orgeon.
'COUNT II
'The said Merle Lee Tracy, as part of the same act and transaction alleged in Count I, on or about the 25th day of July, 1965, in the said County of Lamath and state of Oregon, then and there being, and then and there being armed with a dangerous weapon, to-wit: a knife, did then and there unlawfully, wilfully and feloniously assault one Kitty Kirkes by cutting the said Kitty Kirkes with said knife, contrary to the statutes in such case made and provided and against the peace and dignity of the State of Oregon.'
The indictment in the instant case, which is in the language of the statute, charged the defendant in count one with forcible rape, which it is alleged occurred as a part of the same act and transaction as count two, in which the defendant is charged with assault with a dangerous weapon. ORS 132.560 specifically authorizes the procedure of joining several charges or counts were all result from the same act or transaction. We have repeatedly held that an indictment in the language of a statute is good on demurrer. State v. Huennekens, Or., 420 P.2d 384 (1966). Since it does not appear on the face of the indictment in the within case that the two crimes could not have been a part of the same act or transaction, the demurrer was properly overruled. State v. Huennekens, supra.
The defendant, in his second assignment of error, contends that the court erred in failing to grant defendant a new trial on the grounds that one of the jurors on the case discussed the case with his wife during the trial. In support of his motion for a new trial, the defendant called Catherine Tracy, mother of the defendant, as a witness. The witness testified that while waiting adjacent to the court room for the jury to return with its verdict, she had a conversation with the wife of a member of the jury. The witness testified that the juror's wife advised her that she knew that her husband was going to vote not guilty because of the 'type of girl that the (the juror) thought Kitty Kirkes was * * * her husband had told her he did not think that Merle Tracy had to rape the girl * * * 'She was not a nice girl, I (the juror) would not put any faith in her testimony' * * *.' Russell M. Tracy, the father of the defendant, was also called by the defendant and he testified he overheard part of the foregoing conversation between his wife and the wife of the juror. The above testimony, offered on behalf of defendant in support of his motion for a new trial, was properly rejected by the court as being hearsay evidence. This is so obvious the citation of authority is unnecessary. Further, the opinion allegedly expressed by the juror was favorable to the defendant. ORS 17.610 sets out the causes of which a court may grant a new trial. One such ground is '(m)isconduct of the jury * * *' materially affecting the substantial rights of the party aggrieved. Even had the court considered the above incompetent testimony in ruling on defendant's motion for a new trial, it would have been fully warranted in finding that the unauthorized communication, if in fact made, was not prejudicial and did not materially affect the rights of the defendant.
In Burnett v. Weinstein, 154 Or. 308, 59 P.2d 258 (1936) this court held:
154 Or. at 315, 59 P.2d at 261.
We hold that the court did not err in denying defendant's motion for a new trial on the basis of the alleged misconduct of the juror.
In his third assignment of error, the defendant urges that the court erred in admitting evidence that the...
To continue reading
Request your trial
-
State v. Montez
...in the language of the statute generally is sufficient. State v. Nussbaum, 261 Or. 87, 91, 491 P.2d 1013 (1971); State v. Tracy, 246 Or. 349, 354, 425 P.2d 171 (1967). Count I tracks ORS 163.095(2)(e), the relevant statute. That statute provides in "The murder was committed in an effort to ......
-
State v. Florance
...than the taking of the contents of his wallet or billfold. State v. Cram, 176 Or. 577, 582, 160 P.2d 283 (1945); State v. Tracy, 246 Or. 349, 359--361, 425 P.2d 171 (1967); and State v. Whitewater, 251 Or. 304, 307, 445 P.2d 594 (1968). Thus, it is not surprising that this court has previou......
-
State v. Fish
...Or. 419, 410 P.2d 216 (1966) (handwriting exemplar could be taken without informing defendant of right to counsel); State v. Tracy, 246 Or. 349, 361, 425 P.2d 171 (1967) (taking defendant's trousers at arrest not testimonial); State v. Hughes, 252 Or. 354, 449 P.2d 445 (1969) (handwriting n......
-
State v. Warren
...State v. Fitzgerald , 267 Or. 266, 273, 516 P.2d 1280 (1973) ; State v. Stuart , 250 Or. 303, 308, 442 P.2d 231 (1968) ; State v. Tracy , 246 Or. 349, 354-55, 425 P.2d 171 (1967) ; State v. Huennekens , 245 Or. 150, 154, 420 P.2d 384 (1966). The Court of Appeals did the same. E.g. , Norton ......