State v. Winslow

• Decision Date: 23 July 1970
• Citation: 472 P.2d 852,90 Adv.Sh. 1979,3 Or.App. 140
• Parties: STATE of Oregon, Respondent, v. Joseph Charles WINSLOW, III, Appellant.
• Court: Oregon Court of Appeals

Page 852

472 P.2d 852

3 Or.App. 140

STATE of Oregon, Respondent, v. Joseph Charles WINSLOW, III, Appellant.

Court of Appeals of Oregon, Department 1.

Argued and Submitted June 19, 1970.

Decided July 23, 1970.

Lawrence B. Rew, Pendleton, argued the cause for appellant. With him on the brief were Corey, Byler & Rew, Pendleton.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem.

Before SCHWAB, C.J., and FOLEY and BRANCHFIELD, JJ.

SCHWAB, Chief Judge.

The defendant was convicted upon trial by jury in Umatilla County of dispensing a narcotic drug by giving a marihuana cigarette to one Keith Moon. ¹ He makes five assignments of error on appeal. Three questions are raised by these assignments: (1) was there sufficient evidence of venue in Umatilla County?; (2) was there sufficient identification of the marihuana cigarette which was introduced into evidence?; and (3) was there evidence that Moon was an accomplice whose testimony was therefore subject to corroboration under the provisions of ORS 136.550?

Moon testified that Winslow gave him what purported to be a marihuana cigarette while both were working as field-hands in the 'Miller' or 'Key-Miller' field on June 9, 1969. All of the witnesses, including the defendant, referred to the field as 'the Miller field,' not to 'a Miller field.' One witness stated that he saw the defendant and Moon together at 'the Miller field' on June 9, and further, that 'the Miller field' was located in Umatilla County. There was sufficient evidence of venue to submit to the jury. State v. Bowling, 243 Or. 344, 347, 413 P.2d 421 (1966); State v. Jones, 240 Or. 129, 133--135, 400 P.2d 524 (1965).

Moon testified that after he received the cigarette he took it to his father-in-law's home, put it in a plastic bag, placed the bag on a mantel and called the state police. Three other people besides himself were in the house and could have had access to the bag containing the marihuana cigarette during the approximately three hours it lay there prior to the arrival of a state policeman who took it into his possession. The defendant does not argue that the evidence of the chain of possession was insufficient between the time it got into the hands of the police and the time it was identified as marihuana during the course of trial. He does contend that the opportunity for tampering during the three-hour interval it was in the house of Moon's father-in-law was so great that the trial court should have ruled as a matter of law that the chain of possession had not been established. In State v. Anderson, 242 Or. 368, 374--375, 409 P.2d 681, 684 (1966), the Oregon Supreme Court quoted with approval Gallego v. United States, 276 F.2d 914 (9th Cir. 1960), which said:

"Before a physical object connected with the commission of a crime may properly be admitted in evidence there must be a showing that such object is in substantially the same condition as when the crime was committed. This determination is to be made by the trial judge. Factors to be considered in making this determination include the nature of the article, the circumstances surrounding the preservation and custody of it, And the likelihood of intermeddlers tampering with it. If upon the consideration of such factors the trial judge is satisfied that in reasonable probability the article has not been changed in important respects, he may permit its introduction in evidence. United States v. S. B. Penick & Co., 2 Cir., 136 F.2d 413, 415.

"The jury of course, is free to disregard such evidence upon its finding that the article was not properly identified, or that there has been a change in its nature.

"The trial judge's determination that the showing as to identification and nature of contents is sufficient to warrant reception of an article in evidence may not be overturned except for a clear abuse of discretion. No abuse of discretion was shown here." (Emphasis supplied.)

At the trial Moon testified when asked to identify the marihuana cigarette, 'That's it. It looks just like it.' Defendant also argues that the three other people besides Moon who had access to the marihuana cigarette while it was in his father-in-law's house should have been called by the state as witnesses. There is no rule requiring the prosecution to produce as witnesses all persons who were in a position to come into contact with the article sought to be introduced in evidence. Pasadena Research Laboratories v. United States, 169 F.2d 375 (9th Cir.) cert. den. 335 U.S. 853, 69 S.Ct. 83, 93 L.Ed. 401 (1948). The defendant was free to argue and the jury was free to infer that someone might have tampered with the marihuana cigarette in question during the three-hour period before it was turned over to the state police. However, the trial court did not abuse its discretion in holding that this possibility was not so great as to vitiate the otherwise unchallenged showing that the exhibit was substantially in the same condition it was when Moon received it from the defendant. We turn now to the remaining question.

The defendant requested the trial judge to give a group of instructions to the effect that if the jury found that Moon was an accomplice the jury could not find the defendant guilty unless Moon's incriminating testimony was corroborated by other evidence of defendant's guilt. The trial court refused to give these instructions, in effect holding that as a matter of law there was no evidence by which the jury could find Moon to be an accomplice. For the following reasons we hold that the trial judge was correct.

'As used in the criminal law, the term 'accomplice' means a partaker in the commission of a crime. Wharton's definition of 'accomplice,' as given in his work on Criminal Evidence, Section 440, has been adopted by this court in Oregon v. Roberts, (15 Or. 187, 13 P. 896), and is as follows:

"An accomplice is a person who knowingly, voluntarily, and with common intent with the principal offender, unites in the commission of a crime.'

'As a general rule, it may be stated that:

"One of the tests of an accomplice is that if the partaker can be indicted and punished for the crime for which the accused is being tried he is an accomplice; otherwise he is not': 1 Ency.L. & P. 550.' State v. Turnbow, 99 Or. 270, 280, 193 P. 485, 195 P. 569 (1921).

ORS 136.550 provides:

'A conviction cannot be had upon the testimony of an accomplice unless it is corroborated by other evidence that tends to connect the defendant with the commission of the crime. The corroboration is not sufficient if it merely shows the commission of the crime or the circumstances of the commission.'

This statute, which has been in effect in substantially its present form since 1864, is in derogation of the common law rule. As pointed out in State v. Carr, 28 Or. 389, 42 P. 215 (1895), at common law juries might convict upon the testimony of an accomplice alone, subject to a cautionary instruction of the court as to the credibility of such evidence.

In State v. Jarvis, 18 Or. 360, 364--365, 23 P. 251, 252 (1890), the court said:

'* * * (T)he statute has made corroboration of an accomplice necessary, so that the court has no control over the subject except to apply the statute. * * * If we were now engaged in making the law, no doubt we would declare a different rule * * *.'

In numerous cases the Oregon Supreme Court and other appellate courts have faced the problem of whether to give a broad or a narrow scope to this statutory restriction of the common law right of the trier of fact to consider relevant evidence. An exhaustive review of the problem and analysis of many Oregon decisions is contained in State v. Coffey, 157 Or. 457, 72 P.2d 35 (1937). At pages 463--464, 72 P.2d at page 38 the court said:

'The word 'accomplice' is variously defined in the decisions of the courts. Sometimes it is held that an accomplice is one who can be indicted and punished under the same statute which has been invoked against the defendant. At other times it is said that an accomplice is one who has participated in the commission of the offense, or who, while not being present, nevertheless, in some manner, aided, advised or encouraged the defendant to commit the crime. Manifestly, the second definition is more inclusive than the first. The decisions of this court have taken note of the multiple definitions given to this term; for instance, Mr. Justice Harris, in State v. Walters, 105 Or. 662 (209 P. 349), declared: 'There is no universally accepted definition of the term 'accomplice'.' In 1 R.C.L., Accomplices, p. 156, § 2, the writer states that the meaning of the word 'accomplice' 'cannot be said to be settled'.

'The courts which hold that the term 'accomplice' includes every person who somehow participated in the commission of the offense, even though he cannot be indicted for the offense charged against the defendant, experience great difficulty with the definition, due to its sweeping character. They are continually compelled to create exceptions in order to prevent the rule from exonerating the guilty * * *.'

The court, in State v. Coffey, supra, went on to review numerous of its decisions ² and then held that Oregon followed the narrow rule:

'The above review of our earlier decisions clearly indicates that they have never given effect to the broad definition of the term 'accomplice' for which the defendant contends. It is true that this court has many times mentioned or quoted that definition, but when it came to the actual application of a test it employed the narrower definition * * *.' 157 Or. at 470, 72 P.2d at 41.

In the Coffey case the court was dealing with a statute which made it a crime for a public officer to take a bribe. Only one act was proscribed by the statute in question, and after stating that it adopted the narrower rule, defined an 'accomplice' as a person...