State v. Turnbow

Rehearing denied February 15, 1921.

Petition for Rehearing.

Affirmed. Rehearing Denied. Messrs. Cochran & Eberhard, for the petition. Mr. John S. Hodgin, District Attorney, contra. JOHNS, J.

7. The state’s case is founded wholly upon circumstantial evidence and a detail of the facts which surrounded and led to the commission of the crime, together with what was said and done by the accomplice and the defendant immediately after its commission. Appellant’s counsel segregate each particular fact and circumstance from the others and adroitly point out that such particular fact or circumstance does not tend to corroborate the testimony of Kathryn Moss. It may be true that for such purpose no one of them, standing alone, would be sufficient to comply with the statute.

Section 1540, Or. L., enacts:

“A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime, and the corroboration is not sufficient if it merely show the commission of the crime, or the circumstances of the commission.”

This does not mean that each particular fact or circumstance, standing alone and within itself, must be corroborating evidence which would “tend to connect the defendant with the commission of the crime, ’ ’ but that from all of them ^combined there must be sufficient corroborating evidence for that purpose.

By instruction .No. 9 the jury was told:

*289“If you entertain any reasonable doubt as to any fact or element necessary to constitute the guilt of the defendant, it is your sworn duty to give Mm the benefit of the doubt and return a verdict of not guilty.”

Instruction No. 12 is as follows:

“It is the law that the defendant cannot be convicted in this case upon the testimony of an accomplice, even though you believe her testimony to be true. * * Under the law, the corroborating evidence, to be sufficient, must be as to some material matter, and must tend to connect the accused with the commission of the crime. * # If you find that there is such other testimony, upon a material matter, tending to connect the defendant with the commission of the crime, and does not merely show the commission of the crime, or the circumstances of the commission, then it will still be your duty to find the defendant not guilty, unless you further believe, from all the evidence in the case, beyond a reasonable doubt, that the defendant is guilty as charged.”

The testimony of the surrounding facts and. circumstances was admissible, after which it then became a question of fact as to whether.it did “tend to connect the defendant with the commission of the crime.” The jury found the defendant guilty, and there is evidence to support the verdict.

8. Complaint is made, in particular, to the giving of defendant’s instruction No. 15 as modified by the court. It should have been more specific, and as given, it was not technically correct; but, when construed with the other instructions and considered with the entire charge, the jury should not have been misled, and we cannot say, as a matter of law, that it was prejudicial.

By other and different instructions, the jury was told that, to be sufficient, the corroborating evidence *290“must be as to some material matter, and must tend to connect the accused with the commission of the crime."

9,10. The abstract and brief of appellant were filed October 2, 1920, and at that time-Mr. Justice Brown was Attorney General. He assumed his duties as a member of this court on October 14, 1920, and it is true that he sat at the hearing en banc in Pendleton and wrote the opinion in this case. It is also true that no objections of any kind were ever made until the petition for rehearing was filed. Although he wrote the opinion, yet when it was handed down it was not the opinion of Mr. Justice Brown alone. It became the unanimous decision of this court. To become effective, such objections, if any, should have been made at the time of the argument. Be that as it may, there is nothing in the record which Would disqualify Mr. Justice Brown. There is a marked difference between the official duties of the Attorney General of the United States and those of the Attorney General of the State of Oregon. The authorities cited by appellant’s counsel are all cases construing the powers and duties of the United States Attorney General. Under the federal statute, he has the direct control and supervision of all prosecutions by the government. Likewise, it is his duty to instruct the United States district attorneys, and it is their duty to follow his instructions, in criminal proceedings by the government. Under our statute, unless directed by the Governor, the Attorney General has nothing whatever to do with the trial of a criminal case in the lower court. Section 2773, Or. L., defining the duties of Attorney General, among other things, provides:

“He shall appear, commence, prosecute or defend for the state, all causes or proceedings in the Supreme *291Court, in which the state is a party or interested, when in his discretion the same may be necessary or advisable, and he shall, when requested by any state officer, board or commission, appear, commence, prosecute or defend any action, suit, matter, cause or proceeding in any court in which the state is a party or has an interest."

The Attorney General had nothing to do with the trial of the case in the court below; and, in the absence .of a special request, the question as to whether he shall appear in this class of cases in this court is a matter in the sole discretion of that officer, and there is no claim or pretense that he ever undertook to, or did, exercise that right. Moreover, the remaining members of this court are satisfied that the defendant had a fair trial, that there is no prejudicial error in the record, and that the judgment should be affirmed. The petition is denied.

Affirmed. Rehearing Denied.