State v. Newburn , 178 Or. 238 ( 1946 )

While the argument of the district attorney as quoted in the majority opinion may have been improper, it did not in my opinion constitute reversible error.

Our statutes provide:

"After hearing the appeal the court must give judgment, without regard * * * to technical errors, defects, or exceptions which do not affect the substantial rights of the parties." O.C.L.A. § 26-1325.

Again it is provided:

"Neither a departure from the form or mode prescribed by this Code, in respect to any pleadings or proceedings, nor any error or mistake therein, renders it invalid, unless it have actually prejudiced the defendant, or tend to his prejudice in respect to a substantial right." O.C.L.A. § 26-1401.

The Code of Civil Procedure provides:

"Upon an appeal from a judgment, the same * * * shall only be reversed or modified for errors substantially affecting the rights of the appellant * * *." O.C.L.A. § 10-810.

This provision has also once been held to apply to criminal cases:

"Section 556, Or. L., enjoins us to look for errors substantially affecting the rights of the appellant, and prohibits us from disposing of cases on mere technical errors. While the regularity of the proceedings was departed from, no substantial right of the defendant was invaded; hence no reversible error occurred." (Section 556, Or. L., now O.C.L.A. § 10-810.) State v. Moore, 124 Or. 61, 262 P. 859.

Without invoking the controversial provisions of Article VII, Section 3, of the Oregon Constitution, it seems clear to me that the Legislature has repeatedly charged the courts to disregard errors not affecting the substantial rights of the defendant. This court has followed the legislative mandate in many decisions which are cited in the Code under the statutory provisions above quoted.

In view of the testimony I think the prosecutor was within his rights in arguing to the jury that the defendant was able, as well as ready and willing, to perform the act charged.

The second portion of the argument to which exception is taken presents a more serious question. In his argument the prosecutor correctly said that the state can present only legal testimony. He added:

"* * * And out of all of the facts in the District Attorney's office that we may have, we can only present such evidence as is admissible."

His statement was general. It related "to these cases." There is no assertion that his office had facts in this case. Concerning these cases, he refers to facts that he may have and correctly states that out of such facts he can present only such evidence as is admissible. Every juror knows that inadmissible evidence cannot be presented. If the prosecutor's statement implies that there were facts in his office relative to this case, it also implies that such evidence was inadmissible if it was not offered. The net effect of the argument, stated at its worst, is that he hinted that there was inadmissible evidence concerning the case which could not be used.

If we are to consider such a hint as prejudicial error affecting a substantial right, we must assume (1) that the jury inferred that the inadmissible evidence was relevant (though its inadmissibility might have been due to its irrelevance); and (2) that the inadmissible evidence was adverse to the defendant and that the jury would or might be influenced by it although informed that it was inadmissible. (3) We must assume that the jury might be influenced by the statement though they did not know to what evidence the district attorney referred.

An offer of improper evidence made in the presence of the jury informs them of the specific facts which the proponent desires to prove, yet ordinarily the mere offer of improper evidence is not reversible error. State v. Humphries, 350 Mo. 938,169 S.W.2d 350. In this case there was no offer of improper evidence but only a hint that there might be improper evidence which might be adverse to the defendant.

The loyalty and devotion which is accorded to the jury system by bench and bar is based upon the general belief that the jury is composed of intelligent persons who will not violate their oaths as jurors. To reverse a judgment by reason of the presumed effect upon the jury of the prosecutor's argument in this case constitutes to my mind a challenge to that general belief.