State v. Keelen

Rehearing denied February 7, 1922.

On Petition for Rehearing.

( 204 Pac. 162 .)

In Banc.

Rehearing Denied.

McCOURT, J.

— The attorneys for the state have filed a petition for rehearing. Therein it is suggested that the conclusion of the court in its opinion herein, that the instruction given by the trial court concerning the possession of recently stolen property was not applicable under the facts of this case, ignores the abrogation of the distinction between accessories before the fact and principals in crimes accomplished by Sections 1458 and 2370, Or. L.

12. The opinion herein does not have the effect claimed. Abrogation of the distinction between accessories before the fact and principals in crimes did not change the rules of law for the guidance of the jury in determining the weight and effect of the evidence addressed to them. Although one who aids and abets in the commission of a crime, though not present, is a principal under the statute, and should be tried and punished as such, yet when such person is tried separately, and the evidence shows, as it did in this case, that he was not present at the commissiort of the crime charged, and that he did not directly commit the acts constituting the crime, and that such acts were committed by his codefendant, it is necessary *189 for the state in order to secure a conviction, to produce evidence which satisfies the jury beyond a reasonable doubt, that the defendant did aid or abet, counsel or advise, the commission of the acts constituting the crime; if the jury is so satisfied, they are authorized to return a verdict of guilty against the defendant as charged, and this -satisfies the statute, for the defendant in every case is charged as a principal.

13. Under the evidence in this case an important issue of fact was presented for determination by the jury, to wit: Did defendant aid and abet his codefendant Dooley in the commission of the acts constituting the crime? It was necessary for the state to establish the affirmative of that issue, beyond a reasonable doubt, before the jury was warranted in finding the defendant guilty. The statute abrogating the distinction between accessories and principals in crime did not eliminate that issue nor relieve the state from establishing the affirmative thereof; the character of evidence and the degree of proof requisite to discharge the burden resting upon the state in respect thereto was not changed or diminished by the statute.

14. Defendant’s possession of the property was an item of evidence to be considered by the jury with the other evidence in the case, in determining whether defendant did aid and abet Dooley in the commission of the acts constituting the crime.

But it was improper to instruct the jury concerning such possession, as though the evidence was susceptible to the construction (squarely opposed to the uncontradicted direct evidence) that defendant committed such acts, or was present when they were committed. This was the vice of the instruction given *190 by the Circuit Court and for which the case is reversed.

In the petition for rehearing the attention of the court is directed to an instruction almost identical in language, which was approved by this court, in the case of State v. Minnick, 54 Or. 86 ( 102 Pac. 605 ). In view of our conclusion that such an instruction was not applicable in this case under the evidence adduced upon trial, the approval of the instruction in the Minnick case is not material here.

15. It may be well, however, to refer to a fault common both to the instruction in the Minnick case and the one given by the court in this case, which should be avoided by trial courts when instructing juries, particularly in cases where more than one conclusion may be drawn from the evidence. The instruction in each contains the phrase, “his failure to make such explanation may be considered by you as a circumstance tending to show defendant’s guilt.”

In the case of State v. Maloney, 27 Or. 53 ( 39 Pac. 398 ), the court, in reversing the case, held that it was error for the court to instruct the jury that the evidence, or any particular item thereof, tended to show the guilt of the defendant. Instructions to the effect that the evidence tended to show the guilt of a defendant, or any other fact in issue in a case, have been criticised by this court in numerous decisions: Stale v. Sally, 41 Or. 366, 370 ( 70 Pac. 396 ); State v. Osborne, 54 Or. 289, 303 ( 103 Pac. 62 , 20 Ann. Cas. 627); State v. Rader, 62 Or. 37, 40 ( 124 Pac. 195 ); Saratoga Inv. Co. v. Kern, 76 Or. 243, 249 ( 148 Pac. 1125 ); De War v. First National Bank of Roseburg, 88 Or. 541, 547 ( 171 Pac. 1106 ). Finally, in the case of State v. McLeivnan, 82 Or. 621 ( 162 Pac. 838 ), it was pointed out that the testimony in that case was susceptible to *191 several conclusions besides that of the guilt of the defendant, and it was declared to be reversible error for the trial court in such a case to direct the jury that the testimony “tends to prove” or points in a certain direction when any other conclusion may be drawn from it with equal propriety. The court, speaking through Mr. Chief Justice Burnett, said:

“It is only where the testimony points to a definite conclusion and to no other that the court is authorized to say to the jury that it ‘tends’ to prove anything. If the conclusion to be drawn from the circumstance in question is equivocal, it is for the jury alone to say what influence and what direction shall be accorded to the evidence on the point. What is here written on this point is not in conflict with State v. Brown, 28 Or. 147, 163 ( 41 Pac. 1042 ), Coos Bay R. R. Co. v. Siglin, 34 Or. 80, 84 ( 53 Pac. 504 ), and Smitson v. Southern Pacific Co., 37 Or. 74, 104 ( 60 Pac. 907 ), where it was decided, in substance, that under proper circumstances the court may say to the jury that there is testimony ‘tending to prove’ certain things. In those cases the evidence, if believed, had no double or treble significance as the testimony under consideration here.”

16. Counsel for the state request the court to state . whether or not upon a new trial any instruction should be given on the subject of the possession by defendant of the automobile charged to have been stolen, and if one should be given] exactly what it should contain.

The matters of law that should be stated to a jury depend not only upon the evidence adduced at the trial, but upon the manner in which the trial is conducted and also upon the requests for instructions that may be presented by the respective parties; therefore whether a particular instruction, or an instruction upon a particular matter, should be given in the *192 case, cannot be accurately determined in advance of the trial and before the evidence has been submitted.

In this connection, the attention of counsel' is directed to the following excerpt from the opinion:

“The jury were authorized to consider those facts [the facts surrounding defendant’s possession, including his explanations in respect thereto] together with all other facts in evidence in determining whether defendant conspired with Dooley to steal the car, or aided and abetted him in so doing, provided of course they were first satisfied from the evidence, beyond a reasonable doubt, that Dooley did steal the car, as charged.”

The petition for rehearing is denied.

Rehearing Denied.