STATE of Oregon, Respondent,
v.
Connie R. BLOCHER, Appellant.
Court of Appeals of Oregon, Department 2.
Argued and Submitted June 19, 1972. Decided July 27, 1972. Rehearing Denied August 23, 1972. Review Denied September 6, 1972.F.E. Glenn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the briefs was Gary D. Babcock, Public Defender, Salem.
John L. Snyder, Dist. Atty., Dallas, argued the cause and filed the briefs for respondent.
Before SCHWAB, C.J., and LANGTRY and FOLEY, JJ.
LANGTRY, Judge.
Defendant was indicted for the second degree murder of her stepchild, a three-year-old girl, and convicted of voluntary manslaughter. She appeals, alleging that (1) the evidence was insufficient to go to the jury, (2) an instruction and verdict on a lesser included offense was erroneous, and (3) the instruction based on the statute saying that a witness is presumed to tell *1347 the truth denied her the presumption of innocence.[1]
The child died on September 15, 1971 at a hospital in Salem, Oregon to which she was taken after she evidenced severe illness at her home on the evening of September 10. The cause of death was traumatic injury to the brain. One of the attending physicians testified:
"* * * One of the striking things * * * was the fact that her entire body was covered with bruises of all ages. Upon examining her for the functions of the brain, it was immediately apparent that she had undergone a lot of brain damage. * * * Her breathing was abnormal, and she was really dying."
She had been in the exclusive care of defendant immediately preceding the time that her condition became critical. Defendant offered no evidence for the child's condition except innuendoes that the child's father may have caused the injury, or the child may have fallen, and denied physical abuse of the child except for a moderate spanking. Defendant was implicated by the testimony of her husband with physical punishment of the child during the preceding weeks. A neighbor testified in detail about a severe beating which he had witnessed the defendant administer with a wooden paddle to the deceased child and an older brother a few weeks prior to the child's death. The defendant denied any such beating. There were pronounced discrepancies between statements the defendant made after her arrest and what she stated on the witness stand.
(1). The evidence was circumstantial and sufficient to go to the jury. A reasonable inference could be drawn from the state's evidence that defendant had followed a course of cruel and malicious treatment of the child which culminated in her death. Further, defendant's denial of the beating which she was described to have given with a paddle to the children entitled the jury, if it believed that the neighbor's version of what occurred was true, to believe that she had a consciousness of guilt.
"A party's falsehood or other fraud in the preparation and presentation of his cause is an indication of his consciousness that his case is weak or unfounded and from that consciousness may be inferred the cause's lack of truth and merit. 2 Wigmore, Evidence, § 278 (3d ed.) In a criminal case such conduct is an indication of his consciousness of guilt and from that consciousness his actual guilt can be inferred * * *." State v. Carroll, 251 Or. 197, 201, 444 P.2d 1006 (1968).
(2). Defendant's counsel requested the court not to give instructions on the included offense, voluntary manslaughter. The court did give the instructions and the jury found the defendant guilty thereof. Voluntary manslaughter is an included offense. The evidence about abuse of the child preceding her death was such that the jury could conclude that the defendant bore the child malice. This not only supports the charge of second degree murder, but also voluntary manslaughter, if, as it must have, the jury concluded that the defendant did not intend to kill the child but that she nevertheless bore the child malice and beat her, with death resulting. State v. Bates, 241 Or. 263, 405 P.2d 551 (1965).
The state had requested an instruction on the included offense. The defendant under these circumstances cannot, by her request, prevent the court from giving the instruction.
"* * * And where the evidence is sufficient to raise a doubt, however slight, as to whether the homicide is one *1348 of two or more degrees, the court must charge on all such degrees. [Citing authorities.] Under what appears to be the weight of authority the court is required to give such instructions although not specifically requested * * *." State v. Wilson, 182 Or. 681, 684-685, 189 P.2d 403, 405 (1948).
(3). Defendant asserts that the instruction based upon ORS 44.370 was error, citing Naughten v. Cupp, No. 71-3065 (9th Cir., filed May 24, 1972). In Naughten, a panel of the United States Ninth Circuit Court of Appeals held that giving this instruction was reversible error. There, the defendant did not take the stand or call any witnesses. Here, defendant testified and called several defense witnesses. In that respect, the Naughten case is distinguishable. In State v. Smith, 1 Or. App. 153, 165, 458 P.2d 687 (1969), in a similar situation we said that the claim of error merits serious consideration had the defendant not put on a case. But in State v. Smith, supra, as here, the defendant took the stand and produced other witnesses. We pointed out that federal courts under similar circumstances have held that the instruction is not erroneous. Indeed, in Smith v. United States, 390 F.2d 401, 404 (9th Cir.1968), a case where the defendant did not take the witness stand and no objection was made to the instruction, a different panel of the Ninth Circuit observed that the challenged instruction had been used traditionally in the circuit and was not "plain error." The panel of the Ninth Circuit which granted habeas corpus in Naughten did not refer to the decision of the same court in Smith v. United States, supra, in its opinion. It also ignored the opinion in State v. Kessler, 254 Or. 124, 458 P.2d 432 (1969), in which the Supreme Court of Oregon upheld the giving of the statutory instruction under consideration here.[2] In Kessler the defendant did not take the witness stand. The Oregon Supreme Court held that the instruction was properly given because, besides telling the jury that every witness is presumed to speak the truth, it includes an explanation of how the presumption can be overcome and thus does not render nugatory the presumption of innocence. We are not bound, indeed it would be impossible, to apply the apparent conflicting opinions of different panels of the United States Ninth Circuit Court of Appeals in this situation. We are bound by the opinion of the Supreme Court of Oregon.
Affirmed.
NOTES
[1] 44.370. "A witness is presumed to speak the truth. This presumption, however, may be overcome by the manner in which he testifies, by the character of his testimony, or by evidence affecting his character or motives, or by contradictory evidence. Where the trial is by the jury, they are the exclusive judges of his credibility."
[2] We invite attention of trial judges to n. 5 in State v. Kessler, 254 Or. 124, 128, 458 P.2d 432 (1969):
"It is to be noted that in Oregon the presumption that a witness is presumed to speak the truth is a statutory presumption. ORS 44.370. However, there is no statutory mandate requiring that an instruction embodying the statute be given. Cf. ORS 17.250."