State v. Harvey

242 P. 440, 117 Or. 466, 1926 Ore. LEXIS 172

• Court: Oregon Supreme Court
• Decided: January 27, 1926
• Status: Published

Opinion

BROWN, J.

“The judicial power of the state shall be vested in one supreme court and in such other courts as may from time to time be created by law.” Or. Const., Art. VII, § la.

The law has created the Court of Domestic Relations, which court “shall have original and exclusive jurisdiction * * in all proceedings for the apprehending, trial, and punishment of persons charged with contributing to the delinquency or dependency of minors, as defined and set out in Sections 2150-2154, inclusive.” Or. L., § 9787. At Section 9793, the Court of Domestic Relations is empowered to make rules and regulations regarding the practice and procedure therein. Under the law, any person who shall contribute to the delinquency of a child, or who “shall do any act which manifestly tends to cause any child to become a delinquent child,” is deemed guilty of a misdemeanor. Clearly, the offense charged comes within the embrace of the sections of the Code above noted. It follows that the Court of Domestic Relations had original and exclusive jurisdiction of the act denounced in the complaint.

The objection that the complaint is not properly-verified is without merit. The complaint positively charges the defendant with the commission of a crime; and, by his solemn oath, the informant swears, among other things, that “the foregoing complaint is true, as I verily believe.” "We are aware that, in some jurisdictions, the verification, “as I verily believe,” would be deemed insufficient; but, in this jurisdiction, such form of verification of a positive charge has always been held to be sufficient.

The defendant moved the court for a directed verdict of acquittal upon the ground of the complicity of John Franklin Andrews, alleged to have been the wronged “child,” When that motion was made the testimony in regard to the offense was undisputed, and the complicity of the witness was squarely before the court to determine as a question of law: State v. Weston, 109 Or. 19 (219 Pac. 180), and local citation. In denying the defendant’s motion, the trial court evidently considered that the “child” witness was the defendant’s victim, and not his accomplice. In reaching this determination, the court was clearly acting within the discretionary power conferred by law. The trial judge had observed this fourteen year old lad when upon the witness-stand and was especially qualified to determine whether the boy was, an accomplice or a victim. A girl who attempts to consent to her own ruin in a case of statutory rape is not an accomplice. By the same reasoning it seems to the writer that, if the testimony of the witness is true, the little boy was a victim and not an accomplice.

The appellant says there was no proof that the crime alleged to have been committed was committed in Multnomah County.

“The accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed.” Or. Const., Art. I, § 11.

Therefore, the venue of the offense is a material allegation of the complaint and must be proved to the satisfaction of the jury beyond a reasonable doubt. We have carefully read all the testimony relating to venue and find some evidence to'the effect that the flagrant act took place at 1640 Division Street, Portland, Multnomah County, Oregon. Prom a consideration of the evidence adduced, we are of opinion that the jury was enabled to infer that the offense charged, if committed at all, was committed in Multnomah County.

On direct examination, Dr. McCollom testified to the good character of the accused. Upon cross-examination he was asked:

“As a matter of fact, > didn’t you know that he (defendant) was convicted before Judge Campbell in the Circuit Court at Oregon City of a similar offense?”

The defendant’s good character, when placed in issue by himself, could only be proved by general reputation, and evidence of particular acts or conduct was inadmissible, whether on direct or on cross-examination. However, considerable latitude is allowed the cross-examiner; and, in the sound discretion of the court, for the purpose of testing the accuracy, veracity or credibility of a witness, the cross-examiner may ask such witness as to whether or not he had heard of defendant’s former convic tion. Such question is not for the purpose of proving that the defendant had committed another crime, but for the purpose of testing the ability of the witness to give accurate testimony: State v. Bateham, 94 Or. 524 (186 Pac. 5); Ingram v. State, 67 Ala. 67; White v. State, 111 Ala. 92 (21 South. 330); People v. Moran, 144 Cal. 48 (77 Pac. 777); Cook v. State, 46 Fla. 20 (33 South. 665); State v. Dicherson, 77 Ohio St. 34 (82 N. E. 969, 122 Am. St. Rep. 479, 11 Ann. Cas. 1181, 13 L. R. A. (N. S.) 341).

"We have now reached the serious question in the case. The defendant asserts that a judgment of conviction, without arraignment or plea to the charge contained in the complaint, is invalid. There are many decisions that can be marshaled in support of defendant’s proposition. See State v. Walton, 50 Or. 142 (91 Pac. 490, 13 L. R. A. (N. S.) 811); State v. Walton, 51 Or. 574 (91 Pac. 495).

When the accused is charged with a felony, he is required to be personally present at the arraignment: State v. Donahue, 75 Or. 409 (144 Pac. 755, 147 Pac. 548). But, if charged with the commission of a misdemeanor only, he may appear by counsel: Or. L., § 1470. See State v. Waymire, 52 Or. 281 (97 Pac. 46, 132 Am. St. Rep. 699, 21 L. R. A. (N. S.) 56); State v. Sullivan, 52 Or. 614 (98 Pac. 493); Curran v. State, 53 Or. 154 (99 Pac. 420); State v. Holloway, 57 Or. 162 (110 Pac. 397, 791). The record fails to show affirmatively that the defendant pleaded to the charge contained in the complaint. It does show conclusively, however, that the defendant understood the nature of the offense with which he was charged. He moved to dismiss the complaint. He likewise answered the complaint by demurring thereto. He appeared with counsel and seems to have exercised statutory rights upon arraignment. He made no objection to entering upon the trial. He took part in selecting the jury. He took the witness-stand and denied the charge. He seems to have awaited the verdict of the jury. There is much authority holding that under facts such as exist in the case at bar, the accused has waived all valid objections rising from the failure of the record to show the entry of a plea.

“In some jurisdictions it has been held that one who is indicted for a felony cannot, either personally or by attorney, waive arraignment and plea. Generally, however, arraignment in the case of misdemeanors may be waived, and a waiver will be implied if accused proceeds to trial in the usual manner without objection. Moreover, many of the courts have departed from the old practice, even in cases of felony, and now permit an arraignment to be waived, not only by an express waiver, but also by acts equivalent thereto. * * ” 16 0. J., §720, Crim. Law.

In the case of State v. Walton, supra, the defendant was charged with the commission of a felony, and the court especially comments upon the fact that he was sentenced to serve a long term in the penitentiary. The first case cited in the appellant’s brief filed in this court in the Walton case is that of Crain v. United States, 162 U. S. 625 (40 L. Ed. 1097, 16 Sup. Ct. Rep. 952, see, also, Rose’s U. S. Notes), and the court, in rendering its decision in that case, refers to the Crain case. The opinion in the Crain case, however, was rendered by a divided court, and since its rendition it has been overruled by the case of Garland v. State of Washington, 232 U. S. 642, 644 (58 L. Ed. 772, 34 Sup. Ct. Rep. 456). The opinion in that case is so instructive and its reason ing so clear and sound that we have taken the following excerpts therefrom:

“No arraignment or plea was made upon that information. The case having been called for trial and the jury having been impaneled, the plaintiff in error by his counsel objected to the introduction of any evidence upon the ground that' the state had no right to try the plaintiff in error on the information then before the court. * * No specific objection was taken before the trial to the want of formal arraignment upon the second information. * * It is apparent that the accused was tried and convicted upon an information charging an offense against the law; that he had a jury trial, with full opportunity to be heard, and that he was in fact deprived of no right or privilege in the making of his defense, unless such deprivation arises from the fact that he was not arraigned and required to plead to the second information before trial. The object of arraignment being to inform the accused of the charge against him and obtain an answer from him, was fully subseiwed in this case, for the accused had taken objections to the second information and was put to trial before a jury upon that information in all respects as though he had entered a formal plea of not guilty. * * ”

G-arland contended upon appeal that a ruling made by the Supreme Court of Washington deprived him of his liberty without due process of law within the meaning of the Fourteenth Amendment of the federal Constitution. Upon that subject, the court said (page 645):

“Due process of law, this court has held, does not require the state to adopt any particular form of procedure, so long as it appears that the accused has had sufficient notice of the accusation and an adequate opportunity to defend himself in the prosecution: Rogers v. Peck, 199 U. S. 425, 435 (50 L. Ed. 256, 26 Sup. Ct. Rep. 87, see, also, Rose’s U. S. Notes), and previous cases in this court there cited. Tried by this test, it cannot for a moment be maintained that the want of formal arraignment deprived the accused of any substantial right or in any wise changed the course of trial to his disadvantage. * * It is insisted, however, that this court in the case of Crain v. United States, 162 U. S. 625 (40 L. Ed. 1097, 16 Sup. Ct. Rep. 952), held the contrary. * * If a legal trial cannot be had without a plea to the indictment duly entered of record before trial, it would follow that such omission in the present case requires a reversal of 'the judgment of conviction,- because the prisoner has. been deprived of due process of law.

“Technical objections of this character were undoubtedly given much more weight formerly than they are now. Such rulings originated in that period of English history when the accused was entitled to few rights in the presentation of his defense, when he could not be represented by counsel, nor heard upon his own oath, and when the punishment of offenses, even of a trivial character, was of a severe and often of a shocking nature.”

The court then adopts the language of Mr. Justice Peckham, who, in writing the minority opinion of the court in the Crain case, thus announced the doctrine now followed by the United States Supreme Court:

“A waiver ought to be conclusively implied where the parties had proceeded as if defendant had been duly arraigned, and a formal plea of not guilty had been interposed, and where there was no objection made on account of its absence until, as in this case, the record was brought to this court for review. It would be inconsistent with the due administration of justice to permit a defendant under such circumstances to lie by, say nothing as to such an objection, and then for the first time urge it in this court.”

To this opinion overruling Crain v. United States, supra, there was not a dissenting voice.

A few among the many cases holding that arraignment and plea may be waived are Hudson v. State, 117 Ga. 707 (45 S. E. 66); State v. Rasberry, 113 La. 651 (37 South. 545); State v. Gordon, 35 Mont. 458 (90 Pac. 173); Wood v. State, 4 Okl. Cr. 436 (112 Pac. 11, 45 L. R. A. (N. S.) 673); Essary v. State, 53 Tex. Cr. 596 (111 S. W. 927); State v. Hamshaw, 61 Wash. 390 (112 Pac. 379); Davis v. State, 38 Wis. 487 (1 Am. Cr. Rep. 606); Hack v. State, 141 Wis. 346 (124 N. W. 492, 45 L. R. A. (N. S.) 664); Reed v. State, 66 Neb. 184 (92 N. W. 321, 14 Am. Cr. Rep. 556); Billings v. State, 107 Ind. 54 (6 N. E. 914, 7 N. E. 763, 57 Am. Rep. 77, 7 Am. Cr. Rep. 188); State v. Cassady, 12 Kan. 550 (1 Am. Cr. Rep. 567); Grigg v. People, 31 Mich. 471 (1 Am. Cr. Rep. 602); State v. Hayes, 67 Iowa, 27 (24 N. W. 575, 6 Am. Cr. Rep. 335). See, also, the recent case of State v. Dobson (Or.), 241 Pac. 383.

A defendant accused and tried for the commission of a felony has the absolute right to a trial by jury, which means a body of twelve competent jurors. However, this court has held that a defendant in a criminal case, although charged with the commission of a felony, may waive his constitutional rights, and that his failure to exercise such rights is deemed a waiver. See State v. McDonald, 8 Or. 113, a case of larceny; State v. Powers, 10 Or. 145 (45 Am. Rep. 138), a case of homicide wherein the defendant was convicted of murder in the first degree. In view of the foregoing, we hold that the failure of the record to show affirmatively that the defendant entered his plea to the charge contained in the complaint does not constitute reversible error.

Having examined all assignments, and finding no reversible error, this case is affirmed.

Affirmed. Rehearing Denied.

McBride, 0. J., and Rand and Belt, JJ., concur.