State v. McAllister

136 P. 354, 67 Or. 480, 1913 Ore. LEXIS 212

• Court: Oregon Supreme Court
• Decided: November 20, 1913
• Status: Published

Opinions

Mr. Justice Ramsey

delivered the opinion of the court.

1. The defendant demurred to the indictment, alleging that it does not substantially conform to the requirements of Chapter 7 of .Title 8 of Lord’s Oregon Laws, in that it does not contain such specifications of the crime attempted to be charged and the particular circumstances thereof as required by said provisions, and that the facts stated do not constitute a crime.

The charging part of the indictment is in the following words: “The said E. S. J. McAllister, on the 28th day of October, 1912, in the county of Multnomah and the State of Oregon, then and there being, did, then and there, unlawfully and feloniously commit the crime against nature in, upon and with one Roy Kadel, he, the said Roy Kadel, then and there being a male person; said crime against nature being too well under-' stood and too disgusting to be herein more fully set forth,” etc.

Subdivision 6 of Section 1448, L. O. L., requires the act charged as the crime to be clearly and distinctly set forth, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.

All forms of common-law pleadings in criminal actions were abolished by Section 1435, L. O. L.

Section 1439, L. O. L., provides that the manner of stating the act constituting the crime, as set forth in the appendix to the Criminal Code, is sufficient in all cases where the forms there given are applicable, and said section further provides that “in other cases, forms may he used as nearly similar as the nature of the case will permit.”

The forms given in the appendix of the Criminal Code are very brief and use no surplus words, and, in cases where no forms are given, the pleader is authorized to follow the models given as nearly as the nature of the case will permit. No form is set forth for the crime against nature, hut a form for rape is set forth on page 1011, L. O. L. Where the person upon whom the rape is committed is above the age of consent, the charging words are that the defendant “forcibly ravished C. D., a woman of the age of 14 years.” It is not necessary to allege that .the defendant “carnally knew” the person ravished. The crime against nature is much like rape as to the manner of its commission.

In the case of Commonwealth v. Dill, 160 Mass. 536 (36 N. E. 472) — a sodomy case — the indictment charged that the defendant did “unlawfully and feloniously commit a certain unnatural and lascivious act, ’ ’ with a person therein named. The Massachusetts statute provided that it should not be necessary to allege a description of the crime in the indictment. Passing upon the sufficiency of the indictment, the court said: “We think the indictment good without reference to Section 2 of the statute. Before the statute, sodomy had long been known as a crime against nature. ’ ’

In People v. Williams, 56 Cal. 647, an information for an attempt to commit the crime against nature, charged that the defendant “did willfully and unlawfully and feloniously make an assault on H. G., with intent to commit in and upon the person of H. G., the infamous crime against nature,” etc. The court held it sufficient, saying: “We have examined the information in this case and consider it good. The acts constituting the offense are stated in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended; * * every person of ordinary intelligence understands what the crime against nature with a human being is. ’ ’

In McClain’s Criminal Laws, Volume 2, Section 1154, the author says: “An indictment which charges that the defendant did unlawfully and feloniously commit a certain unnatural and lascivious act with a person named, or did feloniously, etc., commit the infamous crime against nature with, etc., is sufficient.” We hold that the indictment is sufficient, although it would be insufficient at common law. The demurrer was properly overruled.

/2. On the trial, in the court below, several witnesses /"were permitted, over the objections of the defendant, to give evidence tending to prove that the defendant had committed, with persons other than the person named in the indictment, the crime against nature. The case of State v. Start, 65 Or. 178 (132 Pac. 512), is a case in which the defendant was charged with the crime against nature, committed with another man. In that case the trial court had permitted to be given in evidence testimony tending to prove that the defendant had committed the crime against nature with other persons. It was held in that case, by a majority of the court, that such evidence was not admissible. In that case the opinion of the majority of the court was written by Mr. Justice Burnett, and concurred in by Mr. Justice Moore and Mr. Justice Bean. The opinion of the minority was written by Mr. Chief Justice McBride and concurred in by Mr. Justice Eakin. Those opinions examined, with thoroughness and ability, the question as to the admissibility of evidence tending to prove that the defendant had committed the crime against nature with persons other than the one named in the indictment, and the majority of the court held that such evidence was not admissible, while the opinion of the minority came to the opposite conclusion. We do not deem it necessary to re-examine that question in this case. We hold that the rule declared in that case hy a majority of the court should be followed.

In Giblin v. Jordan, 6 Cal. 418, the court says: ‘ ‘ This case may be a hard one; but it forms no reason why the former decisions should be disregarded. The frequent instances in which courts have relaxed rules to avoid the consequences of cases like this have done more to confuse and complicate the law * * than all other cases put together. A rule once established and firmly adhered to may work apparent hardship in a few cases, but in the end will have been more beneficial than if constantly deviated from.”

In Hogatt v. Bingaman, 7 How. (Miss.) 569, the court says: “It should require very controlling considerations to induce any court to break down a former decision and lay again the foundations of the law. ’ ’

In his work on Bailments, Sir William Jones, commenting on the maxim “that nothing is law that is not reason,” says: “This is a maxim in theory excellent, in practice dangerous; as many rules, true in the abstract, are false in the concrete. For, since the reason of Titius may, and frequently does, differ from the reasoning of Septimins, no man who is not a lawyer would ever know how to advise, unless courts were bound by authority as firmly as pagan deities were supposed to be bound by the decrees of fate.”

In Grignon’s Lessee v. Astor, 2 How. (U. S.) 343 (11 L. Ed. 283), the court says: “We do not deem it necessary now, or hereafter, to retrace the reasons or the authorities on which the decisions of this court in that or the other cases which preceded it rested. They are founded on the oldest and the most sacred of the principles of the common law; time has consecrated them; the courts of the states have followed, and this court has never departed from, them. ’ ’

In Sydnor v. Gascoigne, 11 Tex. 455, the court says: “The rule of stare decisis, so far as it applies to decisions of our own court, should not be disregarded but on the fullest conviction that the law had been settled wrong; and, even then, we should pause and consider how far the reversal would affect transactions entered into and acted upon, under the law of this court.”

In Wells on Res Adjudicata and Stare Decisis, Section 596, the author says: “Hence, when once a principle has been fully recognized, it should not be changed, except it is found to he unbearably wrong, or else it is changed or abrogated by the legislature, to whom the correction of errors ought usually to be left as to long-established principles, acted upon as a rule of property. ’ ’

3. In State v. Clark, 9 Or. 470, the court says: “Stare decisis is the policy of the courts, and the principle upon which rests the authority of judicial decisions as precedents in subsequent litigation, and this doctrine ought not to be departed from, except when subsequent examination shows the case to have been decided contrary to principle’’: See, also, Multnomah County v. Sliker, 10 Or. 65; Despain v. Crow, 14 Or. 404 (12 Pac. 806).

We believe that the rule stated in State v. Clark, 9 Or. 470, is the correct one, and that a doctrine declared by a former decision of this court should not be overruled or departed from, unless the court is satisfied upon subsequent examination of the question that the former case was decided contrary to sound principle.

The case of State v. Start, 65 Or. 178 (132 Pac. 512), was thoroughly considered, and it is directly in point on this question, and a majority of the court find nothing therein contrary to sound principle, and we follow that case, holding, that all evidence received by the court tending to prove that the' defendant had committed the crime against nature with persons other than Eoy Ivadel (the person named in the indictment) was incompetent and irrelevant, and that its admission was error.

4. The court below gave this instruction to the jury: “The court thinks that a man with normal sexual instincts is incapable of committing the crime, and that it is only a person of abnormal sexual sense that is capable of committing it. So if you were satisfied that one was possessed of this unnatural or abnormal sexual sense, you might infer that he had a motive, a reason or a force, impelling him to do such an act,” etc.

Section 139, L. O. L., provides: “In charging the jury, the court shall state to them all matters of law which it thinks necessary for their information in giving their verdict, but it shall not present the facts of the case,” etc. The opinion of the court stated in the foregoing charge may or may not be true as a fact. It certainly is not a matter of law. The court has no right to state facts to the jury, unless they are of such a nature that the court can properly take judicial notice of them.

The case of Keen v. Keen, 49 Or. 366 (90 Pac. 149, 14 Ann. Cas. 45, .10 L. R. A. (N. S.) 504), was an action by a wife against another woman for damages for alienating her husband’s affection, and at the trial the judg’e inadvertently, passing upon an objection to a question, made the following remarks, in the presence of the jury: “I don’t think it makes any difference in this case. The charge is that she seduced him. My experience has been, my observation has been, that a woman is not liable to be seduced without she contributes a little in some way to the general purposes of the case. ’ ’ There the judge stated the result of his observation in the hearing of the jury, and not as a part of his charge, and it was held to be error. Passing upon the matter the court says: “Our statute commauds that, in charging the jury, the court shall not present the facts of the case, but shall inform the jury that they are the exclusive judges of all questions of fact. * * The remark complained of was, in ou opinion, a violation of the provision last named, and, believing that it was not expressly withdrawn, it is impossible to say what the effect of such language was on the minds of the triers of fact, and hence the judgment is reversed and a new trial ordered. ’ ’

Thompson, in his work on Charging the Jury, pages 79, 80, says: “Juries — particularly ignorant juries— watch with great eagerness any expression of opinion from the bench, and are very apt to follow it, whether it falls from the lips of the judge as a casual remark. * * Still less will the law permit an expression of his own opinion of the facts of the case, based, not upon the evidence, but upon his own knowledge.”

5. Our statute is express that the court “shall not present the facts of the case,” but shall state to the jury “all matters of law which it thinks necessary for their information” in rendering a verdict. It is the province of the jury to determine what the facts are in any case, and the court has no right to express an opinion on any fact in a case, when charging the jury. Mr. Chief Justice Kelly, in the case of State v. Whitney, 7 Or. 390, says: “It is the exclusive province of the jury to determine questions of fact. They, and they only, have the right to judge of the credibility of witnesses, and of the weight and effect of their testimony. It has always been held to be an erroneous instruction when the court assumed any controverted facts to be proven, instead of submitting to the jury the question whether or not it has been established by the testimony before them. ”

In this case the trial judge told the jury that he thought a man with normal sexual instincts was not capable of committing the crime charged, and that only a person of abnormal sexual sense is capable of committing such an offense. The court then added that if the jury were satisfied that one was possessed of this unnatural or abnormal sexual sense, they might infer that he had a motive, a reason, or a force impelling him to do such an act. The court practically assumed the position of an expert witness, and gave the jury his opinion concerning the kind of person who could and the kind of one who could not commit the crime against nature. This was prejudicial error.

We do not find it necessary to examine the other points made on the appeal.

6. Counsel for the defendant filed in this court, at the time of the argument, a motion for an order of this court quashing the indictment, and discharging the defendant, but we think that such a motion should be filed in the court below, and not here. Section 1625, L. O. L., provides that upon an appeal, the judgment or order appealed from can be reviewed only as to the questions of law appearing upon the transcript. Rule 4 of this court (56 Or. 615, 117 Pac. ix) is as follows: “In criminal causes, the appellant shall set out in full, in his first'brief, the errors alleged.” The appellant’s first brief does not mention the point made by said motion. Possibly this court in criminal causes is authorized to pass upon the questions only that arise upon the transcript, and are assigned as errors in the appellant’s first brief. However, we do not decide that point. The defendant can properly present to the court below the matter urged in his said motion to quash the indictment.

For the errors referred to, the judgment of the court below is reversed and a new trial granted, and the cause is remanded to the court below. Reversed.