State v. Smith

SCHWAB, C. J.

I concur in the majority opinion but would add a word to make it clear that I do not believe that the application of ORS 136.550 should be broadened any more than we are clearly required to do by the Supreme Court’s opinion in State v. Nice, 240 Or 343, 401 P2d 296 (1965) and State v. Ewing, 174 Or 487, 149 P2d 765 (1944).

ORS 136.550 invades the province of the jury in so far as it does not allow a jury to consider the testimony of an accomplice in the same manner it considers the testimony of any other witness. In many cases the only witnesses. one of the litigants presents are those having an interest or a bias. Yet we permit the jury to decide the casé assuming that it will take the evidence *587of interest or bias into account in evaluating such witnesses’ testimony.

Perhaps this is the reason our Supreme Court has been.unwilling to extend to its logical conclusion the apparent rationale which lies behind ORS 136.550— that an accomplice is an unreliable witness because a “confessed criminal might be attempting to gain the conviction of an innocent man through perjured testimony in exchange for his own immunity.” State v. Coffey, 157 Or 457, 463, 72 P2d 35 (1937). For example: if a woman engages in an act of prostitution she may be subject to various criminal sanctions depending upon the circumstances. In order for a prostitute to testify that a man on trial has been receiving her earnings, she must admit to being a prostitute and thereby subject herself to possible prosecution. Yet State v. McCowan, 203 Or 551, 280 P2d 976 (1955) holds that a prostitute is not an accomplice to the crime of the male defendant receiving her earnings. In that case the court said at page 557 (quoting State v. Coffey, supra):

“ * * we believe that within the contemplation of * * * (ORS 136.550), a person is not an accomplice unless he can be indicted and punished under the same statute which is being employed against the defendant.’ ” (Emphasis supplied.)

And at page 558:

“It follows, therefore, that defendant [pimp] could be convicted for a violation of this particular statute upon the uncorroborated testimony of the complaining witness [prostitute] * *

The fact that the juveniles in the case at hand may be confined against their wills as delinquents because they have committed an act which is a violation of state law does not mean that they can be “indicted and pun*588islied” for concealing stolen property in violation of ORS 165.045.

Hopefully in an appropriate case the Supreme Court will review what I believe is a troublesome question.