State v. Pugh , 151 Or. 561 ( 1935 )

As the writer understands the record, there was a judicial admission by defendant, through his counsel, during the trial, that the defendant had distributed the literature described in the indictment. The defendant testified that from about May, 1934, to September 9, 1934, he was engaged in selling this literature. He also testified that before leaving school he had attained the eighth grade. The literature is of the character inhibited by the statute and there is nothing in the record to the effect that any other or different character of literaure was handled, distributed or sold by him.

In defendant's testimony, there is no denial that he knew the contents of the literature in suit or that he told the officer that he had read it, or that, when he could not sell it, he distributed it gratuitously.

Where, as in the case at bar, the defendant voluntarily goes upon the witness stand, his failure to deny prominent and damaging facts of which he has personal knowledge may be considered: Underhill's Criminal Evidence (4th Ed.) section 147, and authorities cited in note 86.

The case of Stover v. People, 56 N.Y. 315, is among the cases there cited. In that case, the defendant was accused of larceny of about $250. The court charged the jury that they were entitled to consider as a circumstance, the failure of accused while a witness to give any account as to where the money found upon him had been kept in the interval from the time he claimed to have received it until it was so found. The writer ventures to quote the concluding lines of the opinion:

"True, it is at the option of the accused whether or not to become a witness. When he has exercised this and become a witness he is made competent for all purposes in the case; if by his own testimony he can explain and rebut a fact tending to show his guilt, if innocent, and he fails to do so, the same presumption arises from his failure that would arise from a failure to give the explanation by another witness, if in his power so to give it. The reason for the presumption is alike in both cases. It arises from the known desire of parties to repel or explain accusatory evidence against them, if in their power; and the basis of the presumption is that the case shows that it is in their power if innocent. Hence a failure tends to show an absence of innocence. There is no foundation for the argument of counsel that the accused was surprised by the application of the rule to his case. It had been proved by the prosecution that the accused said that he could not give an account as to where the money was kept."

The case of State v. Elwell, 105 Or. 282 (209 P. 616), is a case wherein the defendant was charged with the crime of arson. It is distinguishable from the case at bar because, as shown in the dissenting opinion therein, the defendant repudiated all of his confession relating to the manner in which the fire started. In the case at bar, there is no suggestion in the record that the incriminating part of the literature, handled, distributed and sold by defendant, had not been read by him. The admission of defendant is that he had read said literature.

In what he has said thus far, the writer has treated the case as if this court had adopted the rule that a defendant can not be convicted on proof of his extra-judicial admissions in absence of corroborating circumstances tending to show the commission of the offense charged. The writer has no aversion of that principle of criminal evidence. Among the authorities declaring it are: Underhill's Criminal Evidence (4th Ed.), § 262, authorities cited in notes 50 and 51; Martin v. United States, 264 Fed. 950;People v. DeMartini, 50 Cal. App. 109 (194 P. 506); People v.LaRue, 62 Cal. App. 276 (216 P. 627); People v. Johnson, 73 Cal. App. 214 (238 P. 814);State v. Norman, 190 Iowa, 472 (180 N.W. 151); Konopisos v.State, 26 Wyo. 350 (185 P. 355); State v. Bestolas, 155 Wash. 212 (283 P. 687); People v. Rodarte, 74 Cal. App. 636 (241 P. 406); Wharton's Criminal Evidence (9th Ed.), §§ 632, 633; Peoplev. Chadwick, 4 Cal. App. 63 (87 P. 384); People v. Rowland,12 Cal. App. 6 (106 P. 428); People v. Saunders, 13 Cal. App. 743 (110 P. 825); People v. Jones, 31 Cal. 565; Smith v. State,17 Neb. 358 (22 N.W. 780).

Where this rule is applied, it is also generally held that slight corroborating facts are sufficient: People v. Bagley, 16 Wend. (N.Y.) 53; State v. Keller, 8 Idaho 699 (70 P. 1051);State v. Wilson, 51 Idaho 659 (9 P.2d 497).

In at least one case in Oregon, the defendant did not invoke, and this court did not apply the rule requiring corroboration of defendant's extra-judicial admissions: State v. Fisher, 132 Or. 693 (288 P. 215). In that case, the defendant was charged with the possession of an unregistered "worm and still set up for the purpose of manufacturing intoxicating liquor", etc. None of the witnesses who testified in that case had ever seen the still with what is termed a dome on it. Without a dome, the still could not be operated so as to manufacture liquor. The defendant therein did not testify as a witness in the case. On appeal the case was heard in banc; and, speaking through Mr. Chief Justice COSHOW, this court said:

"The admission that he (the defendant) had run off liquor with the still was some evidence that the still was, either then, or had been within a few days prior thereto, set up as defined by section", etc.

A similar course is reflected in the following cases: Murrayv. State, 198 Ind. 389 (153 N.E. 773); Schofield v. State, 89 Ind. App. 27 (165 N.E. 558); Gatti v. UnitedStates, 35 F.2d 959; Wiggins v. United States, 272 Fed. 41.

In State v. Estes, 49 S.D. 364 (207 N.W. 160), the court sustained a conviction because defendant had not moved to strike the evidence of his uncorroborated admission.

The writer believes that opportunity, inclination and ability on defendant's part to learn the character of said literature has been shown; and that this, coupled with his failure to deny knowledge thereof, is sufficient corroboration of defendant's extra-judicial admission that he had read it to require the submission to the jury of the question of defendant's guilt.

The writer thinks that where it is shown that defendant read the literature, the court is not warranted in holding as a matter of law that defendant read only part of it and that the part which he read was not incriminating. In this regard, the writer does not intend to say that the jury, as triers of the facts, are to be restricted in their conclusion in that regard.

These reasons prompt the writer to dissent.

CAMPBELL, C.J., and BAILEY, J., concur in this dissent.