State v. Wilson
| Decision Date | 11 May 1960 |
| Citation | 221 Or. 602,351 P.2d 944 |
| Parties | STATE of Oregon, Respondent, v. Paul Robert WILSON, Appellant. |
| Court | Oregon Supreme Court |
Glenn D. Ramirez, Klamath Falls, and Joseph O. Stearns, Portland, argued the cause for appellant. On the briefs were Joseph O. Stearns, Portland, and Ramirez & Redding, Klamath Falls.
O. W. Goakey, Dep. Dist. Atty., Klamath Falls, argued the cause for respondent. With him on the brief was Arthur A. Beddoe, Dist. Atty., Klamath Falls.
Before McALLISTER, C. J., and O'CONNELL, GOODWIN and HARRIS, JJ.
The difendant, Wilson, appeals from a conviction of larceny after a jury trial in Klamath County.
Wilson was jointly indicted with one Shafer, whose case is decided today. Wilson's trial followed by one week the trial of Shafer before the same jury panel after all jurors who had served in the Shafer trial had been excused by the court. We do not approve the practice followed, but no timely exception was taken. A fresh jury panel is less likely to be infected with undisclosed prejudgment than one having just completed a celebrated companion case.
The evidence was not the same in both cases, but was similar in many respects. See State v. Shafer, Or., 351 P.2d 941.
The principal question on this appeal is whether the defendant should have been allowed a new trial because of alleged errors in the taking of testimony.
The alleged theft had attracted more than passing notice in the community, and like the Shafer case, supra, this case was vigorously prosecuted and defended.
Defendant began by a motion for a change of venue which was denied. He assigns error. The motion was supported by recitals of opinion only. Nothing appears in the record to demonstrate abuse of discretion by the trial court.
The next assignment of error combines two distinct questions, the sufficiency of the evidence and a purported fatal variance. The evidence, with no significant omissions from that presented by the state in the Shafer case, supra, was sufficient to go to the jury. The variance claimed by Wilson is that the indictment alleged the stolen cow was branded with a VK-connected on the right shoulder whereas in truth the cow was branded with a VK-connected on the leading edge of her rib cage. The state's photograph shows the brand to be on the ribs under any ordinary understanding of bovine anatomy, but we believe the variance was not fatal as there was no lack of identification or certainty in the indictment. The charge was that the said cow was then and there the property of one VanderKamp. VanderKamp testified that the cow was his. He described how he tried to brand her on the shoulder as his iron is registered, but that she moved, as cows will, and the iron struck a few inches off target. The assignment is without merit.
The third assignment of error is a repetition of that part of the second which challenged the sufficiency of the evidence, and requires no further comment.
The fourth assignment of error challenges the rulings of the court which permitted local cattlemen to testify as experts that the VK brand was on the shoulder instead of on the ribs. The jury saw the cow. The brand was on the ribs. The entire testimony concerning location of the brand on the cow was redundant, as the photographs and the jury view disposed of the question. There was no error which could have prejudiced the defendant. The question for the jury was the ownership of the cow and its identity as the cow found in the recent possession of the defendant. Whether the district attorney committed a fatal blunder in describing the brand in the indictment as it is registered with the state brand office in the Department of Agriculture presents a question of law only.
The fifth assignment of error challenges the rulings of the court which permitted the state over the timely objections of the defendant to show that other cattle of dubious title were found on the ranch where the cow described in the indictment was found. The defendant contends that the court erroneously opened the door to proof of other crimes. The state contends that the testimony concerning other branded cattle which had been reported missing and which had been found with the VK cow was offered merely to show motive and intent, and to rebut any inference that the cow in question was an estray being harbored by an innocent agistor.
The state is entitled to show in a larceny trial that the stolen property was found with other stolen property under circumstances tending to...
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State v. Ayers
...one was ever submitted. Objectionable remakrs or conduct of counsel may be grounds for reveral if left uncorrected. State v. Wilson, 221 Or. 602, 351 P.2d 944 (1960). In State v. Seeger, 4 Or.App. 336, 479 P.2d 240 (1971), we reversed a criminal conviction because of a prejudicial remark by......
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State v. Seeger
...171 (1935). However, an objectionable remark, properly challenged but left uncorrected, may be ground for reversal. State v. Wilson, 221 Or. 602, 351 P.2d 944 (1960). It is the duty of the attorney for the state to see that the defendant has a fair trial. State v. Pointer et al., 106 Or. 58......
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State v. Latta
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