State v. Wederski

• Citation: 230 Or. 57,368 P.2d 393
• Parties: The STATE of Oregon, Respondent, v. James Julius WEDERSKI, Appellant.
• Decision Date: 31 January 1962
• Court: Supreme Court of Oregon

Page 393

368 P.2d 393

230 Or. 57

The STATE of Oregon, Respondent, v. James Julius WEDERSKI, Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted Jan. 9, 1962.

Decided Jan. 31, 1962.

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

Gary D. Gortmaker, Deputy Dist. Atty., Salem, argued the cause for respondent. With him on the brief was Hattie Bratzel Kremen, Dist. Atty., Salem.

Before McALLISTER, C. J., and ROSSMAN, PERRY, GOODWIN, and LUSK, JJ.

GOODWIN, Justice.

This is an appeal from a conviction of burglary (ORS 164.240).

There are three assignments of error. The first challenges the receipt in evidence of a cigarette lighter stolen in the burglary and found on the person of the defendant the following day. The exhibit was properly identified. The weight and value of the evidence concerning the exhibit were for the jury to determine. There was no error in receiving the exhibit.

The second assignment asserts that the testimony of an accomplice was not corroborated as required by ORS 136.550. The state accused four men of the burglary of a small business office. Three pleaded guilty. The burglars stole numerous articles, including some 100 blank checks and a check protector. Several checks were forged and an abortive attempt was made to negotiate one or two. This episode apparently led to the capture of the quartet. Cf. State v. Gardner, 225 Or. 376, 358 P.2d 557. Richard Mineo, one of the confessed burglars, testified against the defendant.

As we have seen, the fact that certain fruits of the crime were found on the person of the defendant was properly before the jury. Therefore, the testimony of the accomplice was corroborated. State v. Brake, 99 Or. 310, 195 P. 583; State v. Broadhurst, 184 Or. 178, 229, 196 P.2d 407. There was other corroboration, including a signed statement by the defendant which admitted his close association with the others immediately before and after the crime. State v. O'Donnell, 74 Or.Adv.Sh. 3, 367 P.2d 445. The assignment is without merit.

The third assignment of error presents a different kind of question. The state virtually confesses that the deputy district attorney improperly answered the defendant's argument to the jury in two particulars which we will notice shortly. The question is whether the denial of a timely motion for a mistrial was such an abuse of discretion as to require reversal. We hold that it was.

During the defendant's portion of the final argument, his then attorney made the following statement:

'Now, Richard Mineo, whom we have already talked about, further testified and counsel for the State made comment on this, that these checks that he took, these checks and that they were then written on by the defendant. We have not had the benefit of any testimony of any technical or expert testimony upon which would associate the handwriting of the defendant or the handwriting on these instruments. The checks were offered into evidence and were admitted, of course. We would maintain that they were admitted on the basis that they were relevant as to what was taken from that institution out there. Testimony pretty well establishes they were taken, but we have not had the direct association between the defendant and the handwriting on those checks.'

In response, the deputy district attorney said to the jury:

'Mr. Mineo says they all went over there; three of them went in. Mr. Wederski was one of them, came around and opened the door and he went through. The check writing machine was used. We have some checks that were written on the check writing machine and Mr. Mineo says Wederski wrote out the part that was handwritten in ink. As to why we don't have a handwriting expert used in the trial, Mr. Miller did bring that up, and it requires some comment I am sure.

'You know that there are certain rules of evidence and certain requirements before we can use an expert witness. Mr. Clair Alderson, if any of you are familiar, sat through the entire trial and the right situation didn't present itself so that we could get his testimony on. You recall there was no denial by Mr. Wederski that that was his handwriting or perhaps we might have used our expert witness.'

The defendant promptly moved for a mistrial on the ground that the state had improperly (1) invited the jury to consider what a state's witness might have testified had he been called, and (2) at least indirectly commented upon the defendant's failure to take the stand. The trial judge denied the motion, saying he would cure the errors in his instructions. Had he done so, the presumably harmful effect of the district attorney's remarks might have been removed and the denial of the motion for a mistrial might well have been within the permissible limits of discretion. The instructions, however, failed to caution the jury that they could not consider the presence in the courtroom of silent witnesses in aid of the state's case. Neither did the court instruct the jury that the defendant had no duty to prove or disprove anything; that his plea of not guilty...