Citation Codes

Equivalent Citations

citation codes

Attorney(S)

Millard M. Becker, Portland, argued the cause and filed briefs for appellant. David Robinson, Jr., Deputy District Attorney, Portland, argued the cause for respondent. On the brief were Chester W. Pecore, District Attorney, Portland, and Oscar D. Howlett, Deputy District Attorney, Portland.

See more information ...

Smart Summary

Case Summary: State of Oregon v. English

Court: Oregon Supreme Court

Argued: February 8, 1963 | Decided / Affirmed: February 27, 1963

Trial Court: Circuit Court, Multnomah County (Judge Alan F. Davis)

Factual and Procedural Background

Defendant (age 18 at the time of the incident) was indicted for first degree murder for the fatal shooting of his mother. The household — defendant, his mother and a younger sister — had experienced prior burglaries, and as a result the defendant kept a loaded .22 caliber pistol in his room. In the early morning hours of April 10, 1961, the mother awakened the defendant because she believed she had heard someone in the house. Defendant retrieved the pistol and searched the house; finding no intruder, he returned to the living room and found his mother reclining on a sofa. He testified that he approached and stood behind the sofa, conversed with his mother for a few moments, and that for an unknown reason the gun discharged, the bullet entering the mother's forehead and causing her death.

After the shooting the defendant was taken to police headquarters and was questioned almost continuously from about 5:00 a.m. until about 5:30 p.m. the same day. A lawyer-relative visited early in the day (the record does not make clear what advice, if any, was given). Beginning about 4:30 p.m., the defendant gave a transcribed question-and-answer statement to a detective; that statement included an admission that he had been "teasing" his mother by pointing the gun at her when it discharged. The transcribed statement differed in some respects from earlier statements the defendant had made that day and differed from his trial testimony.

A jury convicted defendant of involuntary manslaughter. Defendant appealed the judgment entered on that verdict to the Oregon Supreme Court.

Legal Issues Presented

Whether the defendant's transcribed statement to the detective was admissible because it was freely and voluntarily made.
Whether admission of a photograph of the deceased's head and shoulders was erroneous.
Whether a mistrial should have been granted because of improper remarks by the prosecutor.
Whether the court could decline to review certain instructions given when no exceptions were taken at trial.
Whether the trial court erred in refusing to withdraw the first degree murder charge despite an absence of believable evidence of premeditation, and whether any such error was cured by the jury's verdict of involuntary manslaughter.

Arguments of the Parties

Appellant's (Defendant's) Arguments

The statement given to the detective about 4:30 p.m. was not freely and voluntarily made and therefore should have been excluded.
Admission of a photograph of the deceased's head and shoulders was improper.
A mistrial should have been granted due to improper remarks by the prosecutor.
Certain instructions given by the court should not stand (though two assignments concerned instructions to which no exceptions were taken at trial).
The charge of first degree murder should have been withdrawn because there was no believable evidence of premeditation.

Respondent's (State's) Position — as reflected in the opinion

The transcribed statement was properly submitted to the jury and there was no evidence it was induced by coercion or promises; the voluntariness question was for the jury under proper instructions from the trial court.
The photograph was admissible (the court cites authority supporting admission).
Any improper remarks of the prosecutor were promptly and effectively cured by the court's instructions to the jury.
Assignments directed at instructions not excepted to at trial are not reviewed on appeal.
Even if the charge of first degree murder should have been withdrawn because premeditation was unsupported, the jury's verdict of involuntary manslaughter cured any error — the defendant was not prejudiced by rulings relating to the higher charge.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Ellis, 232 Or. 70, 374 P.2d 461 (1962)	General recent re-examination of problems surrounding voluntariness of statements to police.	Cited to show that the issues respecting voluntariness have recently been addressed and need not be re-argued; supports the court's approach to voluntariness here.
State v. Freeman, 232 Or. 453, 374 P.2d 453 (1962)	Authority relevant both to voluntariness and to admissibility of photograph evidence.	Referenced to uphold admission of the photograph and to support the handling of the voluntariness question.
State v. Sanders, 232 Or. 631, 376 P.2d 668 (1962)	Principle that appellate review will not consider instructions to which no timely exception was taken at trial.	Applied to refuse review of two assignments directed at instructions given but not excepted to at trial.
State v. Reyes, 209 Or. 595, 303 P.2d 519; 304 P.2d 446; 308 P.2d 182 (1957)	The effect of a verdict convicting of a lesser offense is to acquit the defendant of the higher crime, so the defendant is not prejudiced by rulings related only to the higher offense.	Followed by this court to conclude that any error in refusing to withdraw the first degree murder charge was cured by the verdict of involuntary manslaughter.
State v. Meyers, 57 Or. 50, 110 P. 407	Quoted authority articulating that a verdict of a lesser offense acquits the defendant of the higher offense and thus avoids prejudice from rulings on the higher charge.	Quoted and relied upon as stating the prevailing rule which supports the court's treatment of the claimed error concerning the higher charge.
State v. Carabajal, 26 N.M. 384, 193 P. 406 (1920)	Authority in accord with the rule that acquittal of the higher offense occurs when a lesser offense is found, thereby negating prejudice from errors relating only to the higher charge.	Cited as additional authority in general accord with the rule the court applies regarding verdicts of lesser offenses curing error on higher charges.
Tate v. People, 125 Colo. 527, 247 P.2d 665 (1952)	A decision addressing the rule regarding prejudice when a lesser verdict is returned; noted as appearing to modify or overrule an earlier Colorado case.	Cited as part of the survey of authorities on the subject; the court notes the apparent modification but also notes subsequent Colorado authority.
Ryan v. People, 50 Colo. 99, 114 P. 306 (1911)	An earlier Colorado case frequently cited for the rule regarding the effect of a verdict on a higher charge.	Referenced in the discussion of Colorado authorities; the court notes that later Colorado decisions have varied in their treatment of Ryan.
Walker v. People, 126 Colo. 135, 248 P.2d 287 (1952)	A Colorado decision that cited and relied on Ryan v. People.	Noted to illustrate that Colorado decisions are not uniform and that some subsequent decisions continued to rely on Ryan.

Court's Reasoning and Analysis

The court addressed the defendant's assignments of error in a point-by-point manner and anchored its analysis on both evidentiary facts in the record and established authority.

On the voluntariness of the transcribed statement: the trial court submitted the statement to the jury with instructions on how to assess voluntariness. The appellate court found no evidence in the record that the statement was induced by coercion or promises or otherwise involuntary. The court relied on its recent treatment of related problems (citing State v. Ellis and State v. Freeman) and concluded the admission was not error.

On the photographic evidence: the court determined that admitting a photograph of the victim's head and shoulders was not error, citing State v. Freeman as authority supporting admissibility.

On the prosecutor's improper remarks and the claimed need for a mistrial: while acknowledging that the prosecutor violated often-repeated rules, the court found the trial judge promptly and emphatically cured the violation by instructing the jury. Thus, a mistrial was unnecessary.

On assignments directed at instructions to which no exceptions were taken: the court declined to review these assignments, following the principle articulated in State v. Sanders that appellate courts will not consider instructions that were not properly excepted to at trial.

On the refusal to withdraw the first degree murder charge despite an absence of believable evidence of premeditation: the court acknowledged the concession that no believable evidence of premeditation existed. Nonetheless, it applied the prevailing rule — supported by State v. Reyes and earlier Oregon authority (State v. Meyers) and other jurisdictions — that when a jury convicts on a lesser included offense the defendant is effectively acquitted of the higher offense and is not prejudiced by rulings pertaining solely to the higher charge. The court emphasized that a showing of prejudice should be apparent before deviating from that rule; here, no prejudice appeared because the defendant's own testimony could have sustained the manslaughter verdict.

After reviewing each claimed error and the authorities cited, the court concluded that there was no reversible error in the trial proceedings.

Holding and Implications

Holding: The judgment of the trial court was AFFIRMED.

Implications:

The conviction for involuntary manslaughter stands and the trial court's judgment is affirmed.
The court concluded that (1) the challenged transcribed statement was properly admitted and presented to the jury for determination of voluntariness; (2) the photograph was admissible; (3) any prosecutorial misconduct was cured by judicial instruction; (4) appellate review will not consider instructions not properly excepted to at trial; and (5) any error in refusing to withdraw the higher charge was cured by the jury's verdict of a lesser offense because no prejudice to the defendant was shown.
The opinion does not announce a new rule of law; it applies and cites existing Oregon authority and other authorities to resolve the assignments of error.

Note: This summary is based exclusively on the contents of the opinion as provided and does not add facts or inferences not present in the source text.

Show full summary ...

STATE OF OREGON v. ENGLISH

AFFIRMED.

SLOAN, J.

Defendant was convicted by a jury of the crime of involuntary manslaughter and appeals from the judgment entered on the verdict. Defendant had been charged in an indictment with first degree murder for the fatal shooting of his mother.

Defendant, who was 18 years old at the time, lived with his mother and a younger sister in a house in northeast Portland. On two occasions, prior to the night of the shooting, this family had complained to the police that burglars had entered their home and, on one occasion, had stolen the mother's purse. As a result of these incidents defendant kept a loaded .22 caliber pistol in his room.

In the early morning hours of April 10, 1961, so defendant testified, his mother aroused him because she thought she had heard someone in the house. Defendant took his gun from under a pillow and searched the house. No one was found. He swore that when he completed his search he found his mother reclining on a sofa in the living room of the house. He said that his approach to the living room brought him to the back of the sofa. He testified that he stood over his mother for a few moments and engaged in conversation; that for some cause unknown to him and while talking to his mother the gun was discharged. The bullet entered the mother's forehead causing a wound which resulted in her death.

Following the events described defendant was taken to police headquarters where he was questioned almost continuously from about 5 a.m., until about 5:30 p.m., of the same day. Early in the day he was visited by a relative who is a prominent lawyer in Portland. It is not clear in the record what advice defendant received from the lawyer-relative. Beginning about 4:30 p.m., on April 10, defendant gave a statement to one of the police detectives. The statement was in the form of questions and answers taken and transcribed by a court reporter. In that statement defendant said he had been teasing his mother by pointing at her with the gun at the time of discharge. There were other discrepancies between this last statement and ones made earlier the same day. His testimony at the trial was as before stated.

Three assignments claim error for the admission of the statement made by defendant to the detective for the reason that it was not freely and voluntarily made. The assignments cannot be sustained. The trial court properly submitted the statement to the jury with instructions informing the jury of its duty in this regard. There was no evidence that the statements were induced by coercion or promises or were other than voluntary. The problems presented by these assignments have recently been re-examined and need not again be repeated. State v. Ellis, 1962, 232 Or. 70, 374 P.2d 461; State v. Freeman, 1962, 232 Or. 453, 374 P.2d 453.

Defendant next complains of the admission of a photograph of the head and shoulders of the deceased mother. No error was committed by the receipt of the evidence. State v. Freeman, supra.

Another assignment says a mistrial should have been granted for improper remarks of the prosecutor. The prosecutor's violation of often-repeated rules was promptly and emphatically cured by the court's instructions to the jury.

Two assignments are directed at instructions given and not excepted to. Hence they will not be reviewed here. State v. Sanders, 1962, 232 Or. 631, 376 P.2d 668.

Lastly, error is asserted because the court refused to withdraw the charge of first degree murder. It is conceded here that there was no believable evidence of premeditation. However, the error, if any, was cured by the verdict of involuntary manslaughter. State v. Reyes, 1957, 209 Or. 595, 619, 303 P.2d 519, 304 P.2d 446, 308 P.2d 182, follows the rule which appears to prevail:

"The asserted errors in these rulings, insofar as they pertain to first degree murder, need not be considered, since the effect of the verdict of guilty of second degree murder was to acquit the defendant of the higher crime and `he was therefore not prejudiced by any ruling made on that subject.' State v. Meyers, 57 Or. 50, 57, 110 P. 407, 33 LRS (ns) 143."

The authority in regard to rule stated is in general accord. State v. Carabajal, 1920, 26 N.M. 384, 193 P. 406, 17 ALR 1098; 4 Warren, Homicide, (1938) § 380, 637, et seq; 2 Michie, Homicide, (1914), § 340 (4) et seq, 1827; 26 Am Jur, Homicide, (1940) § 557, 546; Tate v. People, 1952, 125 Colo. 527, 247 P.2d 665, 673, where the Supreme Court of Colorado appears to modify or overrule an earlier case of Ryan v. People, 1911, 50 Colo. 99, 114 P. 306, Ann Cas 1912 B, 1232, which the editors of Am Jur cite and rely on for the rule stated at the cited reference to Am Jur. However, in Walker v. People, decided less than three months later, 1952, 126 Colo. 135, 248 P.2d 287, 299, the Colorado court again cited and fully relied on Ryan v. People without reference to the Tate case.

We think a showing of prejudice should be apparent before a court should deviate from the rule in a given case. Here, it is clear that defendant was not prejudiced. His testimony was sufficient to have sustained the verdict.

There was no error in the trial. The judgment is affirmed.

STATE v. ENGLISH