State of Oregon v. Patton , 208 Or. 610 ( 1956 )

PERRY, J.

The defendant was convicted of armed robbery, and appeals.

The defendant, in effect, offered no evidence, and he states the court erred in instructing the jury as follows:

“Evidence is to be estimated not only by its own intrinsic weight, but also according to the evidence which it is within the power of one side to produce and of the other side to contradict; and if weaker and less satisfactory evidence is offered when it may appear to the jury that stronger and more satisfactory evidence was within the power of the party to produce, then the evidence offered should be viewed by you with distrust.”

The defendant asserts the giving of this instruction was a comment upon his failure to testify on his own behalf and violated the constitutional right given him against self-incrimination under Article I, § 12, of the Oregon Constitution. Eeliance is placed upon the California decisions People v. Cuff, 122 Cal 589, 55 P 407, and People v. Charles, 9 Cal App 338, 99 P 383. In each of these cases an instruction identical with the one above set out was given by the trial court, and it was held to be erroneous, requiring a reversal of the conviction.

The reasoning of the California courts requiring reversal is set forth in People v. Cuff, supra, at page 591, as follows:

“* * * The aforesaid section of the code declares that the principles stated in the various subdivisions thereof may be given by the court to the jury upon all proper occasions. In criminal eases the proper occasions are so few and the improper occasions are so many that it were best that they should be given rarely, if at all. The instruction given in this case fully and fairly illustrates the danger suggested. Let us consider one objection to it. Here there is no suggestion whatever in the record that any important witness could have been produced by the defendant before the jury and was not produced. Under such circumstances, certainly the occasion was not a proper one upon which to give the instruction. But, upon the other hand, the defendant did not take the witness stand, and the practical application of the instruction necessarily points to that fact as a strong circumstance to be taken against him. To the ordinary mind there seems to have been no other reason or purpose in the giving of the instruction. Yet a defendant has the constitutional right to stand mute and demand that the prosecution prove a case against him beyond a reasonable doubt. (People v. Streuber, 121 Cal 431.)”

The instruction given is cautionary and refers solely to evidence introduced into the case. It advises the jury that in weighing the evidence which has been offered in the case by a party they may be distrustful of that evidence given if they believe the party offering such evidence could have produced or presented stronger or more satisfactory evidence upon the subject. The instruction in nowise comments upon the weight to be given evidence not introduced, nor the failure to produce any evidence at all. If this instruction stood alone perhaps credence could be given the reasoning of the California court. However, the instructions in a case are to be considered and construed as a whole and any erroneous impression that might be gathered from the giving of the instruction could not, in our opinion, mislead a jury into believing the defendant is required to take the witness stand or produce any evidence when the court instructs as the court did here, that “The defendant is not required to prove or disprove any facts alleged in the case, but the burden of proof rests upon the State to prove the truth of the charge as read in the indictment beyond a reasonable doubt.” This instruction clearly told the jury that the defendant was not required to prove or disprove anything, but that the burden of establishing the truth of his commission of the crime lay wholly with the state.

While the instruction excepted to is not erroneous, and is authorized on all “proper occasions” by OES 17.250, we are of the opinion that in a criminal case caution should be exercised in giving this instruction, unless it is limited to the evidence offered by the state. State v. Thompson, 203 Or 1, 278 P2d 142.

No exception was taken upon the ground that the instruction was abstract.

The defendant’s second assignment of error complains of the following instruction given by the trial court:

“When an assault with an intent to rob is made by threatening the intended victim with a firearm at close range, the jury may infer that the weapon was loaded.”

The defendant states that this is a comment upon the evidence to the effect that an assault had actually been made. The assignment is without merit.

The trial court, in the instruction complained of, does not in anywise tell the jury an assault with intent to rob has been committed, but only states that as an abstract proposition the law permits an inference to be drawn that a firearm is loaded whenever a firearm is used as a threat in close proximity of another person during an assault or robbery. State of Oregon v. Lanegan, 192 Or 691, 703, 236 P2d 438.

The defendant also assigns as error the failure of the trial court to grant his motion for a new trial. This assignment of error is based upon the failure of the trial court to instruct the jury to the effect that the defendant’s failure to testify could not be considered as an inference of his guilt. Such an instruction is proper and should always be given when requested, but, since it was not requested at the time of trial, any claimed error was waived. State v. Magers, 36 Or 38, 53, 58 P 892.

We are of the opinion that the record is free from prejudicial error.

The judgment is affirmed.