State v. Turnbow

• Citation: 195 P. 569,99 Or. 270
• Parties: STATE v. TURNBOW.
• Decision Date: 15 February 1921
• Court: Supreme Court of Oregon

195 P. 569

99 Or. 270

STATE v. TURNBOW.

Supreme Court of Oregon, En banc.

February 15, 1921

Appeal from Circuit Court, Union County; J. W. Knowles, Judge.

On petition for rehearing. Denied.

For former opinion, see 193 P. 485.

Cochran & Eberhard, of La Grande, for appellant.

John S Hodgin, Dist. Atty., of La Grande, for the State.

JOHNS J.

This case was affirmed November 23, 1920, in an opinion written by Mr. Justice Brown, and reported in 193 P. 485. Attorneys for the appellant vigorously contend: First, that the testimony of the accomplice, Kathryn Moss, was not sufficiently corroborated to sustain a conviction; second, that instructions Nos. 14, 15 and 16 were erroneous; and, third that Justice Brown was not qualified to sit by reason of the fact that he was Attorney General of the state at the time the appeal was perfected.

The state's case is founded wholly upon circumstantial evidence and a detail of the facts which surrounded and led to the commission of the crime, together with what was said and done by the accomplice and the defendant immediately after its commission. Appellant's counsel segregate each particular fact and circumstance from the others and adroitly point out that such particular fact or circumstance does not tend to corroborate the testimony of Kathryn Moss. It may be true that for such purpose no one of them, standing alone would be sufficient to comply with the statute.

Section 1540, Or. L., enacts:

"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 the crime, and the corroboration is not sufficient if it merely show the commission of the crime, or the circumstances of the commission."

This does not mean that each particular fact or circumstance standing alone and within itself, must be corroborating evidence which would "tend to connect the defendant with the commission of the crime," but that from all of them combined there must be sufficient corroborating evidence for that purpose.

By instruction No. 9 the jury was told:

"If you entertain any reasonable doubt as to any fact or element necessary to constitute the guilt of the defendant, it is your sworn duty to give him the benefit of the doubt and return a verdict of not guilty."

Instruction No. 12 is as follows:

"It is the law that the defendant cannot be convicted in this case upon the testimony of an accomplice, even though you believe her testimony to be true. * * * Under the law, the corroborating evidence, to be sufficient, must be as to some material matter, and must tend to connect the accused with the commission of the crime. * * * If you find that there is such other testimony, upon a material matter, tending to connect the defendant with the commission of the crime, and does not merely show the commission of the crime, or the circumstances of the commission, then it will still be your duty to find the defendant not guilty, unless you further believe, from all the evidence in the case, beyond a reasonable doubt, that the defendant is guilty as charged."

The testimony of the surrounding facts and circumstances was admissible, after which it then became a question of fact as to whether it did "tend to connect the defendant with the commission of the crime." The jury found the defendant guilty, and there is evidence to support the verdict.

Complaint is made, in particular, to the giving of defendant's...