Citation Codes

Equivalent Citations

citation codes

Attorney(S)

John O. Sheldahl, Oregon City, argued the cause for appellant. On the brief were Sheldahl Misko, Oregon City. William E. Schumaker, District Attorney, argued the cause and filed a brief for respondent.

Judges

GOODWIN, J.

See more information ...

Smart Summary

State of Oregon v. Fischer — Oregon Supreme Court (1962) — Opinion by Goodwin, J.

Factual and Procedural Background

A jury found Margaret Arnell Fischer guilty of manslaughter for the death of her husband by a gunshot wound. The conviction followed a trial in the Circuit Court of Clackamas County (Judge Ralph M. Holman), and the defendant appealed to the Oregon Supreme Court. The appeal challenged multiple rulings at trial, principally the admissibility of the defendant's oral and written statements to police, the sufficiency of independent evidence proving the corpus delicti (particularly criminal agency), the denial of motions to dismiss and for a directed verdict, the admission of rebuttal testimony, and the trial court's refusal to give a particular instruction regarding consideration of a defendant's statement.

The opinion sets out the independent circumstantial evidence the jury could have found, summarized by the court as:

The deceased was killed by a bullet from a .22 caliber pistol.
The pistol that fired the bullet was found by the police underneath the mattress where the defendant slept.
The death occurred on October 8, 1961, between about 7:45 and 11:45 p.m., and was discovered the following afternoon after the defendant telephoned a friend and asked her to come to the house.
The house where the deceased was found was locked and no one entered or left the house between the time of death and discovery some sixteen or more hours later.
The defendant was in the house alone with the deceased before and after the death for some sixteen or more hours without calling for help or otherwise making the events known.

Legal Issues Presented

Whether the state adequately proved the corpus delicti before admitting the defendant's oral and written confessions (and, relatedly, whether the order of proof in admitting the confessions was improper).
Whether the independent evidence was sufficient on the element of criminal agency to permit the admission of the confessions and to take the case to the jury.
Whether the trial court erred in denying the defendant's motion to dismiss the indictment and motion for a directed verdict of acquittal.
Whether the court erred in admitting rebuttal testimony (Sheriff Shobe) that the defendant contends should have been part of the state's case-in-chief.
Whether the trial court erred in refusing to give a requested instruction that the jury must take the whole of a defendant's statement together and, if parts favorable to the defendant are not disproved and are not improbable, give those parts equal consideration.

Arguments of the Parties

Appellant's Arguments

The state did not adequately prove the corpus delicti before introducing the defendant's oral and written confessions; therefore their admission was prejudicial error.
The order of proof was improper (the state should have established corpus delicti before offering confessions).
The independent evidence was insufficient on criminal agency, so the confessions should not have been admitted and the motions to dismiss and for directed verdict should have been granted.
The trial court erred in refusing to strike Sheriff Shobe's rebuttal testimony, which the defendant contended could have been part of the state's case-in-chief.
The court erred in refusing to give a specific instruction requiring the jury to consider a defendant's statement as a whole and to give mitigating parts equal consideration if not disproved.

Respondent's Arguments

The order of proof is within the trial court's discretion and the state produced all other evidence before introducing the confessions.
The independent circumstantial evidence was sufficient to create a jury question on criminal agency, so admission of confessions and denial of motions were proper.
Sheriff Shobe's testimony was proper rebuttal because the defendant, on cross- or redirect, asserted that someone else authored certain words; Shobe's testimony was necessary to contradict that assertion.
The instructions given, taken as a whole, adequately informed the jury and there was no prejudice from refusing the requested instruction; moreover, the state's evidence and the defendant's statements were before the jury and treated appropriately.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Weston, 102 Or. 102, 113, 201 P. 1083.	Confessions fall within ORS 136.540(1); order of proof is within trial court discretion; in homicide cases corpus delicti requires proof death caused by criminal conduct of another.	The court relied on Weston to classify the statements as confessions under the statute, to uphold the trial court's discretion over order of proof, and to state the corpus delicti requirement applied here.
State v. Williams, 46 Or. 287, 297, 80 P. 655.	Proof of corpus delicti may rest wholly upon circumstantial evidence.	The court cited Williams to support that independent circumstantial evidence suffices to establish corpus delicti for submission to the jury.
State v. Wilkins, 72 Or. 77, 142 P. 589.	It is not necessary that the state prove its case beyond a reasonable doubt independently of confessions.	Used to explain that independent evidence need not alone meet the reasonable-doubt standard apart from the defendant's confessions.
State v. Bodi, 223 Or. 486, 492, 354 P.2d 831 (1960).	Independent evidence need only make out a question for the jury on death and criminal agency to permit use of confessions.	The court applied Bodi to hold that the independent evidence here was sufficient to present a jury question on criminal agency, allowing admission of confessions.
State v. Watts, 208 Or. 407, 301 P.2d 1035 (1956).	Illustrates a case with virtually no proof of the commission of a crime.	Cited as a contrast: Watts involved virtually no proof, unlike the present case where circumstantial evidence supported criminal agency.
State v. Minnick, 54 Or. 86, 94, 102 P. 605 (1909).	In some circumstances it may be prejudicial error to allow evidence in rebuttal when it should have been in the state's case-in-chief.	The court acknowledged Minnick but distinguished the present facts, concluding the rebuttal testimony was properly admitted to meet a new matter opened by the defendant.
State of Oregon v. Hunsaker, 16 Or. 497, 19 P. 605 (1888).	Same principle as Minnick regarding improper use of rebuttal for matters that should have been in chief.	Cited alongside Minnick to note the general rule, then distinguished on the ground that the rebuttal was necessary to contradict defendant's testimony.
Stam v. Salles et al, 223 Or. 518, 519, 355 P.2d 93 (1960).	Rebuttal testimony should be limited to evidence made necessary by the opponent's evidence; trial court has discretion to allow rebuttal evidence that becomes relevant.	The court relied on Stam to uphold the trial court's exercise of discretion in admitting Shobe's rebuttal testimony as material to contradict the defendant's assertion.
Stowell v. Hall, 56 Or. 256, 261, 108 P. 182 (1910).	Supports the proposition that rebuttal testimony is limited to what becomes necessary in response to the opponent's evidence.	Used to support the conclusion that admitting the testimony in rebuttal was within the trial court's discretion.
State v. Hattrem, 140 Or. 371, 382, 13 P.2d 618 (1932).	Authority cited by the court concerning contradiction of a defendant's assertion about authorship of statements.	Cited as a comparative authority to support admitting testimony that contradicted the defendant's claim that someone else had put words in her mouth.
State v. Ausplund, 86 Or. 121, 128, 167 P. 1019 (1917).	Criticism of the substance of a proposed instruction to consider a defendant's statement as a whole.	The court noted Ausplund criticized the instruction's substance and used the history to analyze whether the requested instruction was mandatory.
State v. Bouse, 199 Or. 676, 697, 264 P.2d 800 (1953).	Approved, in context, the substance of an instruction requiring the jury to consider mitigating portions of a defendant's statements; particularly relevant where penalty decisions depended on such consideration.	The court explained that while Bouse approved the substance, "insofar as the Bouse case has been understood to make the quoted instruction mandatory, it should be considered overruled." The court refused to deem the instruction mandatory here.
State v. Trent, 122 Or. 444, 461, 252 P. 975, 259 P. 893 (1927).	Authority supporting that instructions considered as a whole can be adequate and fair.	Cited to support the conclusion that the instructions given were fair and covered every issue in the case.

Court's Reasoning and Analysis

The court addressed each challenged ruling in turn, applying statute and precedent strictly as presented in the record.

1) Admission of Confessions and Order of Proof: The court treated the appellant's primary contention as an attack on the order of proof and on the sufficiency of independent proof of corpus delicti. It observed that the order of proof is within the trial court's discretion (citing State v. Weston) and noted that, in fact, the confessions were introduced only after the state had produced all of its other evidence. Consequently, there was no abuse of discretion with respect to the sequence of presentation.

2) Sufficiency of Proof of Corpus Delicti (criminal agency): The court explained the governing principle that corpus delicti in a homicide case requires proof that a human death was caused by the criminal conduct of another (State v. Weston). That proof may rest wholly on circumstantial evidence (State v. Williams), and it is not necessary that the state prove its case beyond a reasonable doubt independently of confessions (State v. Wilkins). What is required is independent evidence sufficient to make out at least a question for the jury on death and criminal agency (State v. Bodi).

The court then set out the independent circumstantial facts the jury could have found (see list in the factual background). Those facts, the court held, were sufficient to permit a reasonable inference that the death was not suicide or accident and thus created a jury question on criminal agency. Accordingly, admission of the confessions was not precluded by a lack of independent proof.

3) Motions to Dismiss and for Directed Verdict: Given the sufficiency of independent evidence to raise a jury question on criminal agency, and given the defendant's confession that she wrested the gun from her husband, stepped back and fired (which the court characterized as constituting at least manslaughter unless justified), denial of the motions to dismiss and for directed verdict was proper. Self-defense testimony was a jury question; the jury apparently disbelieved the defendant's claim of justification.

4) Rebuttal Testimony (Sheriff Shobe): The defendant had testified on redirect that a written statement in evidence did not contain her exact words and attributed a particular sentence to another officer. The state then called Sheriff Shobe in rebuttal, who testified that the defendant had stated she had wrestled the gun away, stepped back and pulled the trigger. The court recognized authorities that sometimes bar admission of evidence in rebuttal that should have been elicited in chief (State v. Minnick; State of Oregon v. Hunsaker), but concluded those authorities did not mandate exclusion here. Rebuttal testimony is proper when made necessary by the opponent's evidence; it is within the trial court's sound discretion to allow rebuttal evidence that becomes relevant even if it could have been used in chief (Stam v. Salles et al; Stowell v. Hall; 3 Wigmore, Evidence §1873). Shobe's testimony was relevant to contradict the defendant's assertion that someone else had authored the words attributed to her; the state had no reason to anticipate this dispute during its case-in-chief. The court found no abuse of discretion.

5) Refusal to Give Requested Instruction on Considering a Statement as a Whole: The court analyzed the requested instruction and its pedigree. It noted prior cases: the instruction's substance was criticized in State v. Ausplund but approved in State v. Bouse in the specific context of first-degree murder and penalty determination. The court observed that the instruction's wording was awkward and could be read as an impermissible comment on the weight of evidence. The court expressly held that, to the extent Bouse had been understood to make the quoted instruction mandatory, that understanding should be considered overruled. The court concluded that, on these facts, the instructions given—taken as a whole, including specific caution about declarations and admissions and full instruction on self-defense—were adequate and there was no indication of prejudice to the defendant from the court's refusal to give the precise requested wording.

Holding and Implications

AFFIRMED.

Holding: The Oregon Supreme Court affirmed the conviction and judgment entered against Margaret Arnell Fischer.

Implications:

The court confirmed that the order of proof is within the trial court's discretion and that confessions admitted after the state has presented independent evidence are not per se inadmissible for that reason.
The court reaffirmed that corpus delicti may be established by circumstantial evidence sufficient to create a jury question on death and criminal agency, permitting the use of the defendant's confessions (State v. Williams; State v. Bodi; State v. Wilkins).
The court upheld the trial court's discretion to admit rebuttal testimony made necessary by the defendant's testimony (so long as admission is not an abuse of discretion), distinguishing situations in which rebuttal evidence would be prejudicial because it should have been part of the case-in-chief (State v. Minnick; State of Oregon v. Hunsaker; Stam v. Salles et al).
The opinion limits the mandatory effect of State v. Bouse: "Insofar as the Bouse case has been understood to make the quoted instruction mandatory, it should be considered overruled." Aside from that qualification, the court found no reversible error in the instructions given and no prejudice to the defendant.
Direct effect: the defendant's manslaughter conviction and the trial court's rulings challenged on appeal were affirmed. The opinion modifies the mandatory understanding of a particular instruction cited in Bouse, but otherwise does not announce other novel rules beyond the applications described.

Show full summary ...

STATE OF OREGON v. FISCHER

GOODWIN, J.

A jury found Margaret Arnell Fischer guilty of manslaughter in the death of her husband by gunshot wound. She appeals from the resulting judgment.

The first assignment of error concerns the introduction into evidence of certain oral and written statements the defendant had given to the police. She contends that the state had not adequately proven the corpus delicti prior to the introduction of these statements; she then says that it was prejudicial error to receive them. The contentions are based on the defendant's understanding of ORS 136.540 (1), which reads in part: "nor is a confession only sufficient to warrant his conviction without some other proof that the crime has been committed." The statements which were introduced were confessions within the meaning of ORS 136.540 (1). State v. Weston, 102 Or. 102, 113, 201 P. 1083.

The assignment of error appears to challenge only the order of proof. If we take the assignment literally, it is a contention that the court somehow failed to observe the general rule that the state should prove the corpus delicti before it proceeds with any evidence of a confession. The order of proof is within the sound discretion of the trial court. State v. Weston, supra. There is no need in this case to question the court's exercise of its discretion, for the confessions were not introduced until after the state had produced all of its other evidence. The assignment of error is, if taken literally, wholly without merit.

Treating the assignment of error as if it were a challenge to the sufficiency of the proof of corpus delicti, which was, no doubt, the defendant's intent, there was still no error. Proof of the corpus delicti in a homicide case requires proof that the death of a human being was caused by the criminal conduct of another. State v. Weston, supra. Such proof may rest wholly upon circumstantial evidence. State v. Williams, 46 Or. 287, 297, 80 P. 655. It is not necessary that the state prove its case beyond a reasonable doubt independently of the confessions. State v. Wilkins, 72 Or. 77, 142 P. 589. The weight of the evidence is for the jury. It is sufficient if the independent evidence on the issues of death and criminal agency makes out a question for the jury. State v. Bodi, 223 Or. 486, 492, 354 P.2d 831 (1960); 3 Wigmore, Evidence 404, § 2073. Cf. State v. Watts, 208 Or. 407, 301 P.2d 1035 (1956), where there was virtually no proof of the commission of a crime.

The sole issue in this case on the sufficiency of proof of corpus delicti concerns the element of criminal agency. If the independent evidence did not give the jury a foundation upon which it could find that death was caused by a criminal act, then the state was not entitled to use the defendant's confessions. State v. Bodi, supra.

From the independent circumstantial evidence in this case, the jury could have found the following to be the facts:

(1) The deceased was killed by a bullet from a .22 caliber pistol.

(2) The pistol that fired the bullet was found by the police underneath the mattress where the defendant slept.

(3) The death occurred on October 8, 1961, between the hours of 7:45 and 11:45 p.m., and was discovered by a third party shortly after 3:20 p.m. on October 9, 1961, when the defendant telephoned a friend and asked her to come to defendant's house.

(4) The house where deceased was found was locked and no one entered or left the house between the time of the decedent's death and the discovery thereof by others some sixteen or more hours later.

(5) Defendant was in the house alone with deceased before and after the death of the deceased for some sixteen or more hours without calling for help or otherwise making the events known.

The foregoing facts were sufficient to permit a jury to draw an inference that death was caused by an agency other than suicide or accident. The probabilities under the facts outlined could be, and no doubt were, debated before the jury. It was the jury's duty to weigh the probabilities. Viewing the matter most favorably to the defendant, there was a jury question on criminal agency. No error can be found in connection with corpus delicti.

Defendant also assigns error to the denial by the trial court of a motion to dismiss the indictment and to the denial by the trial court of a motion for a directed verdict of acquittal. Both assignments are without merit. We have already seen that there was sufficient independent evidence of the corpus delicti to go to the jury. Added thereto was the defendant's confession. She said that following a brief struggle with her husband she wrested the gun from his possession, stepped back and fired. That is at least manslaughter, in the absence of facts making the homicide justifiable. There was no error in denying defendant's motions. Testimony concerning self-defense was for the jury to consider. It apparently chose not to believe the defendant.

The defendant further contends that it was error to refuse to strike the testimony on rebuttal of Sheriff Shobe. On redirect examination the defendant had been asked if the written statement which she had given the police and which was then in evidence contained her exact words. She replied that it did not. She specifically denied making the remark that "I don't remember whether I cocked the gun or not, but I just backed up and shot." Instead she claimed that the words were those of Deputy Sheriff Wampler. The state, in rebuttal, called witness Shobe, who testified that on the day following her arrest the defendant had told him that she "had wrestled the gun away from her husband, stepped back and pulled the trigger and fired." Defendant now contends that since this could have been part of the state's evidence-in-chief, it could not have been proper rebuttal. The state points out that the contention is a non sequitur. The state says that Shobe's testimony was made necessary by the defendant's testimony that Wampler rather than the defendant was the author of the statement.

This court has recognized that in some circumstances it may be prejudicial error to allow evidence in rebuttal when the evidence should have been part of the state's case-in-chief. State v. Minnick, 54 Or. 86, 94, 102 P. 605 (1909); State of Oregon v. Hunsaker, 16 Or. 497, 19 P. 605 (1888). The evidence introduced by the state through the witness Shobe could indeed have been used as a part of the state's case-in-chief. It would have been cumulative, but it was relevant. It does not follow, however, that the same evidence could not also be used in rebuttal when it became material to contradict the defendant's own testimony. Rebuttal testimony should be limited to evidence made necessary by the opponent's evidence. It is within the sound discretion of the trial court to allow in rebuttal testimony which becomes relevant in rebuttal even though it might have been used in the case-in-chief. Stam v. Salles et al, 223 Or. 518, 519, 355 P.2d 93 (1960); Stowell v. Hall, 56 Or. 256, 261, 108 P. 182 (1910); 3 Wigmore, Evidence 510, § 1873. There was no abuse of discretion in the case at bar. The testimony of Shobe, had it been used in the case-in-chief, would have been cumulative if used merely to prove that the defendant had made a voluntary confession. There was testimony of three other witnesses who all swore that the typewritten statement was in the words of the defendant. Shobe's testimony, however, became relevant on another point when it was used to contradict the defendant's assertion that some other person had put in her mouth the words attributed to her. Cf. State v. Hattrem, 140 Or. 371, 382, 13 P.2d 618 (1932). The state had no reason to suspect during its case-in-chief that the defendant would disclaim the authorship of her signed statement. The purpose of the general rule against using in rebuttal testimony that should have been used in chief is to prevent surprise or other unfair tactics. When a party opens up a new matter as a special point of inquiry, the reason for the rule evaporates and the testimony may be used to meet the new assertion.

The final assignment of error concerns the failure of the trial court to give the following instruction:

"The court instructs the jury that, where a statement of the prisoner charged with a crime is offered in evidence, the whole of the statement so offered and testified to must be taken together, as well that part which makes in favor of the accused as that part which makes against him; and if the part of the statement which is in favor of the defendant is not disproved by other testimony, and is not improbable or untrue, considered in connection with all the other testimony of the case, then that part of the statement is entitled to as much consideration from the jury as the parts which make against the defendant."

It might be noted that the substance of the foregoing instruction, while criticized in State v. Ausplund, 86 Or. 121, 128, 167 P. 1019 (1917), was approved in State v. Bouse, 199 Or. 676, 697, 264 P.2d 800 (1953). The instruction does not employ the clearest wording that could be chosen to convey to the jury the need to consider an admission as a whole, and upon analysis, it comes very close to being a comment upon the weight to be given a fragment of the evidence. Insofar as the Bouse case has been understood to make the quoted instruction mandatory, it should be considered overruled.

During the trial of State v. Bouse, supra, certain oral statements made by the defendant were introduced by the state. Those statements contained mitigating matter as well as incriminating matter. In denying a motion for a new trial, the trial court was recorded as saying that the mitigating portion of the statements could not be considered as proving matter in mitigation, but only as proving that the statements had been made. This court reversed, holding that the weight to be attributed to such remarks was entirely a matter for the jury. In that case it was particularly important that the jury be allowed to consider mitigating testimony, because the charge was first-degree murder and it was the duty of the jury to set the penalty.

Assuming that the substance of the requested instruction could have been given in this case, it was not reversible error to refuse to give it. Other instructions made it clear that the jury was to consider the evidence as a whole. The error in the Bouse case was in the trial court's ruling that the mitigating portion of the defendant's statement could not be considered by the jury. There was no such ruling in the instant case. The statements of defendant in the case at bar were introduced as a whole. We have no reason to believe the jury did not consider each of them as a whole. The jury was instructed to regard the declarations and admissions of the defendant with caution, because of the danger that a mistake could be made in receiving, recording and transmitting such statements. No other instruction was specifically directed to the statements of defendant. There is nothing in the record, however, which would indicate that the defendant was prejudiced by the failure of the court specifically to point out to the jury that they could consider her statements both for her and against her. The oral statements admitted the killing but described it in terms of self-defense. The written statement was in the jury room and spoke for itself. It, likewise, described the killing as an act of self-defense. The jury was fully instructed on the issue of self-defense in a manner favorable to the defendant. The instructions as a whole were fair to the defendant and covered every issue in the case. Cf. State v. Trent, 122 Or. 444, 461, 252 P. 975, 259 P. 893 (1927).

Affirmed.

STATE v. FISCHER