# State v. Chong Ben

> Oregon Supreme Court · May 28, 1918 · 89 Or. 313

URL: https://www.frixlaw.com/law-library/cases/6906369

## Case

- **Full name:** STATE v. CHONG BEN
- **Court:** Oregon Supreme Court
- **Decided:** May 28, 1918
- **Citations:** 89 Or. 313; 173 P. 258; 1918 Ore. LEXIS 126
- **Precedential status:** Published
- **Opinion:** On rehearing by McBride
- **Judges:** McBride
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6906369

## Opinion text

Petition eob Reheabing.
On petition for rehearing. Denied.
Messrs. Cochran £ Eberhard, for the petition.
Mr. John 8. Hodgin, District Attorney, and Messrs. Crawford £ Ealcin, contra.
In Banc.
McBRIDE, 0. J. —
Much of the argument in the petition for rehearing is devoted to criticism of Instruction No. 7, which is set forth in full at page 318, ante ( 173 Pac. 258 ). A careful reading of that instruction will not disclose a single one of the multifarious errors which the astuteness of counsel imputes to it. It is urged that the instruction is a mere abstract statement of the law. We think this objection sufficiently answered by our former opinion.
The second objection is that it “permits the jury to use acts and declarations of one against all defendants, regardless of proof of conspiracy, or whether proof of conspiracy existed at the time of the act or declaration.” The instruction will not bear such a construction. We reproduce it in its entirety:
“I instruct you that where two or more persons are associated together for the purpose of doing an unlawful act, the act or declaration of one of such persons, while engaged in or pursuant to the common object or design, is the act or declaration of all, for which all are liable, and each person so associated is *324 deemed or presumed to have consented 'to or commanded what was done by any of the others.”
8. In the hypothetical case assumed by the instruction there must be, (1) two or more persons associated for the purpose of doing an unlawful act, before the declaration of one conspirator will bind the others who are associated with him in the common design, and (2) the act or declaration to be binding upon a defendant, other than the one actually performing the act or making the declaration, must be “pursuant to the common object or design.” The instruction is clear and does not carry with it the construction attributed by counsel.
9. The other objections to the instruction, briefly stated, are (1) that it permits the jury to use the acts and declarations of one defendant to prove the conspiracy as to all; (2) that it assumes the existence of the conspiracy, and, (3) that it does not require the jury to first determine from the evidence the existence of a conspiracy before considering any evidence of acts or declarations of one defendant against another. A mere reading of the instruction will convince any unprejudiced mind that these objections are each and all unfounded. The instruction was clear and correct as to the proposition stated, and. it is not claimed that any further limitations or explanations were asked by counsel for the defense. As stated in our former opinion, there was ample evidence to justify every instruction given. An instruction that the jury must-first be satisfied that a conspiracy existed before considering evidence of the acts or declarations of one defendant as against another, would have been proper although we think it might reasonably be deduced from the language used in Instruction No. 7, but no such instruction was requested. In the absence of *325 such request the court had a right to assume that the defendants had no desire for further instruction upon that point.
It is needless to consume time and space discussing points already passed upon in our original opinion, or to discuss in detail the authorities cited by counsel. They were all carefully considered and we have found no reversible error in the proceedings, nor are we able to see how in any respect the rights of the defendants either under the Constitution of the United States or of this state have been infringed upon.
The petition is denied. Rehearing Denied.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6906369. Public record. Not legal advice.