State v. Wakefield

• Decision Date: 22 July 1924
• Citation: 111 Or. 615,228 P. 115
• Parties: STATE v. WAKEFIELD.
• Court: Oregon Supreme Court

228 P. 115

111 Or. 615

STATE v. WAKEFIELD.

Supreme Court of Oregon

July 22, 1924

Department 1.

Appeal from Circuit Court, Lake County; J. M. Batchelder, Judge.

Irwin Wakefield was convicted of adultery, and appeals. Reversed and remanded.

The defendant, Irwin Wakefield, was convicted of the crime of adultery with Goldie Thompson, and sentenced to the term of one year in the penitentiary.

The body of the indictment is as follows:

"The said Irwin Wakefield, on the 21st day of November, A. D 1922, in the said county of Lake and state of Oregon, then and being, did, then and there unlawfully and feloniously commit the crime of adultery with one Golda Thompson, she the said Golda Thompson then and there being a married woman, and then and there being the lawful wife of Geo. W Thompson, and he, the said Irwin Wakefield, then and there being a male person, and then and there not being the lawful husband of said Golda Thompson."

The trial was had on the 11th day of June, 1923. The defendant appeals, assigning 24 alleged errors. The errors will be mentioned in the opinion in as far as they are deemed necessary in order to be understood.

O. M Corkins, of Lakeview (A. Fairchild, of Enterprise, on the brief), for appellant.

J. M Devers, Asst. Atty. Gen., and T. S. McKinney, Dist. Atty., of Lakeview (S. A. Jetmore, of Lakeview, on the brief), for the State.

COSHOW J.

The first two errors are predicated upon the ruling of the court in permitting the prosecuting attorney, over the objection of the defendant, to propound to two jurymen, after the defendant had exhausted his peremptory challenges, the following question:

"If you were acting as a district attorney in this case, would you be willing to have a man who is in your present frame of mind to sit on a jury in a case that you were conducting?"

This question is objectionable. It does not necessarily tend to determine impartiality in the venireman. If the venireman was favorable to the state, he would answer affirmatively. But the examination of veniremen should be so conducted as to determine their fitness as impartial triers of the case; not their will to accept as a juror one who might be favorably disposed at that time to one side or the other. A district attorney might be very willing to accept as a juror one who is prejudiced in favor of the state. Such a venireman would be willing to have a man who is in his frame of mind sit on the jury--not because he was impartial and free from bias--but because he was biased in his favor. The examination should be so conducted as to disclose the freedom of bias in favor of or against either side. From the view we take of other assignments of error we do not determine whether or not permitting this question to be propounded would be reversible error, if standing alone.

Assignments of error 3 and 4 are predicated upon the questions propounded to George W. Thompson, prosecuting witness and alleged husband of the said Goldie Thompson. The questions objected to are as follows:

"Now you are the wife--I should say the husband of Goldie Thompson, are you not?

"And so Goldie Thompson is at this time your wife, is she?"

The objection was made on the ground that the questions called for a conclusion and not the best evidence. These questions were propounded for the purpose of proving the marriage relation between the prosecuting witness, George W. Thompson, and the said Goldie Thompson. The testimony of a party to a marriage is admissible to prove the marriage. State v. Isenhart, 32 Or. 170, 52 P. 569; Bailey v. State, 36 Neb. 808, 55 N.W. 241. The statute expressly prescribes that a husband may be a witness in a case wherein his wife is charged with adultery. Section 1535, Or. L.

The court did not err in sustaining the objection to the question asked of the witness, George W. Thompson, on cross-examination:

"Well, you know that she had written over there or had gone over there some time before that, and seen an attorney about getting a divorce or something of that sort, she told you that, didn't she?"

That matter was clearly foreign to the guilt or innocence of the defendant. The court did not err in denying the offer of the defendant to state what the witness Thompson would testify to in answer to the last-mentioned question.

It was in the discretion of the court to require the witness Thompson to answer the questions propounded to him regarding his alleged manufacture of whisky and misconduct with the "49 show girls" for the purpose of weighing the credibility of the witness. State v. Bacon, 13 Or. 143, 9 P. 393, 57 Am. Rep. 8; Redsecker v. Wade, 69 Or. 153, 134 P. 5, 138 P. 485, Ann. Cas. 1916A, 269, sustaining the objections to these questions, standing alone, is not sufficient error to warrant a reversal on that ground. We cannot say that the court abused its discretion in sustaining the objections.

There was no error in overruling the objections of the defendant to the questions propounded to the defendant on cross-examination regarding whether or not he was interested in what certain men wanted who came around his room on certain occasions. These questions and the answers may not have been very material, but they were propounded on cross-examination, and we are unable to see any harm that could have possibly resulted to the defendant by the inquiries.

The defendant requested the court to give instruction No. 2, which is as follows:

"I instruct you that the burden is on the state to prove to your satisfaction that at the time the state claims the crime alleged in the indictment was committed, the defendant, Irwin Wakefield, was an unmarried man."

It is the settled law in this state that prosecutions for adultery can only be conducted upon the information of the injured spouse. Section 2072, Or. L.; State v. Stevenson, 98 Or. 285, 193 P. 1030. But, where the charge is against a married woman and a single man, the prosecution may be upon the information of the woman's husband. This court, in the able opinion of Mr. Justice Brown in State v. Stevenson, 98 Or. 285, 193 P. 1030, followed the ruling of the Supreme Court of the state of Iowa. That Supreme Court has held that whether or not the defendant, charged with the crime of adultery committed with a married woman, was married was a matter of defense. In State v. Mahan, 81 Iowa, 121, at page 123, 46 N.W. 855, 856, the opinion reads: "But the question raised by the demurrer in this case is, whether it is necessary, when the indictment does not show that the prosecution was commenced on the complaint of the husband or wife of the defendant, that it should show that the defendant was not married when the proceedings were instituted. In considering this question it must be remembered that the complaint required by the statute is not an element of the crime. State v. Donovan, 61 Iowa, 278. The indictment discloses no fact from which the marriage of defendant can be inferred. We are not justified in presuming that he was married when these proceedings were commenced. The indictment shows that defendant committed the crime of adultery, and that his guilt does not depend upon his state as to being married or single at the time of the act. Under these circumstances, if defendant was married, the failure of his wife to make complaint was a matter of defense, which he was required to prove in order to take advantage of it. It is not necessary to negative an exception made in a criminal statute, unless it adds a qualification to bring a case within it, which, but for the qualification, would be without it."

The court did not err, therefore, in refusing to give the requested instruction mentioned above.

Assignment of error No. 15, predicated upon the court's refusal to give instruction No. 3 as requested by the defendant, is not seriously insisted upon either in the brief or the oral argument. The subject-matter of that requested instruction and also of the requested instruction No. 9, the refusal to give which is assignment of error No. 16, was given by the court, and no error was committed in refusing to give those instructions in the language requested by the defendant.

Assignment of error No. 17 is predicated upon the court's refusal to give defendant's requested instruction No. 14, which is as follows:

"You must not allow the nature of the charge in any way sway or bias your judgment in your deliberations on a verdict. You must not indulge in any speculation outside the evidence, but must look alone to the evidence of this case, and from it make your decision. That defendant is entitled to your calm, unbiased, and deliberate judgment upon the truthfulness of the charge against him. He is presumed by the law to be innocent, and this presumption is evidence in his behalf, and protects him from a conviction until his guilt is established beyond a reasonable doubt. If, therefore, you have a reasonable doubt of defendant's guilt, after a careful and unbiased consideration of all the evidence of the case, you must resolve that doubt in his favor and return a verdict of not guilty."

This requested instruction was given in State v. Hamilton, 80 Or. 562, 565, 157 P. 796, 797, where it is said:

"This is an instruction in the nature of a caution to the jury, and while the court was under no special obligation to give it, it correctly states the law, and does not involve error."

The substance of this requested instruction was not given except as to the presumption of innocence. In this case it is our opinion that it would have been proper to have given the instruction, but do not consider it reversible error to have refused it.

Assignment of error No. 18 is predicated upon the court's instruction No. 24. It was taken bodily from State v Eggleston, 45 Or....