State v. Rand , 166 Or. 396 ( 1941 )

Petition for rehearing denied April 29, 1941 ON PETITION FOR REHEARING (112 P.2d 1034) In a petition for rehearing, the defendant, Dewey Rand, has shown to us that we were mistaken in stating in our former opinion that neither a certified copy of the complaint nor the original complaint filed against the defendant was included in the record lodged with this court. As a matter of fact, the original complaint was included in the judgment roll. We may therefore inquire into the sufficiency of the complaint.

This complaint was originally filed in the municipal court of the city of Portland, charging the defendant with committing a misdemeanor in violating a state statute by driving and operating an automobile upon a public highway of the state of Oregon, namely a street in the city of Portland, while under the influence of intoxicating liquor. The name of the district attorney was signed by one of his deputies for him, and the complaint was verified by the oath of LeRoy G. Gaither before the municipal judge.

This complaint meets the requirement of § 28-602, O.C.L.A., which provides that in a justice's court, likewise in a municipal court (§ 95-204, O.C.L.A.), a criminal action is commenced by the filing of a complaint therein, verified by the oath of the person commencing the action, who is thereafter known as the private prosecutor.

Section 26-1217, O.C.L.A., is relied upon by the defendant in his contention that the complaint was "fatally defective". That section provides that the name of every person who voluntarily appears before any justice of the peace to prosecute any person in a criminal action shall be endorsed upon the complaint "as private prosecutor" and if it be found by the justice or court trying the action or hearing the proceeding that the prosecution is malicious or without probable cause, that fact "shall be entered upon record in said action or proceeding by said justice or court." The following section, § 26-1218, O.C.L.A., provides that upon making the entry prescribed in the preceding section the justice or court must immediately render judgment "against the private prosecutor for the costs and disbursements of the action or proceeding, which may be enforced by execution, in the same manner as judgment in a civil action".

These two sections of the code last mentioned were enacted in 1882 (Laws 1882, page 13), under the following title: "An act providing for taxing private prosecutors with cost and disbursements of criminal actions when found to be malicious or without probable cause." It is apparent, both from the title and the body of the 1882 act, that the purpose of enacting that law was to deter the institution of prosecutions malicious or without probable cause, by imposing the costs and disbursements thereof as a penalty. Contrary to the defendant's contention, § 26-1217,supra, does not affect the validity of the complaint, which is governed by § 28-602, supra.

Counsel in his petition for rehearing again calls our attention to one of the assignments of error urged in his brief and on oral argument. That assignment concerns a remark of the court, made in granting the defendant an exception. The matter arose in this manner, after some discussion among the attorneys:

"Mr. Watkins: Now, what is your ruling?

"The court: My ruling is that you have thorough opportunity to inquire, and that you have already had it.

"Mr. Watkins: All right, note an exception and I will not pursue that any more.

"The court: All right, you may have an exception.

"Mr. Watkins: I note an exception. I will not pursue that any farther, and I note an exception on the ground that the court does not allow me to pursue that as long as I want to go into it and that it is prejudicial, not permitting me to bring out the exact number of feet that I want, and so I take an exception to the ruling.

"The court: You may have an exception. Have a good one while you are at it.

"Mr. Watkins: Well, your Honor, I object to that kind of remark, ``Have a good one while you are at it.'

"The court: Well, it is a good one.

"Mr. Watkins: Well, that is not proper for a court.

"The court: I will withdraw it and allow you to have any kind of an exception you wish.

"Mr. Watkins: I know, but ``Have a good one.'

"The court: I have withdrawn that.

"Mr. Watkins: I can't help it."

The remark to which counsel for defendants objects, it is apparent from the record as hereinabove quoted, was made after the court had allowed the exception and counsel continued to reiterate that he excepted. This court can not put into the mouths of trial judges the words to be uttered under all circumstances and conditions. The remark under consideration indicated impatience, if anything, and not hostility toward counsel or his client. We can not see how the defendant's rights were thereby prejudiced.

Another assignment of error stressed by the defendant in his petition for rehearing is the refusal of the court to give one of the instructions requested by him. The requested instruction, quite lengthy, begins by telling the jury that the defendant has a right to present his theory of the case, and that the defendant has not only entered a plea of not guilty but has gone further, in that "he has taken the stand and has said to you that he was not drunk, that he was not intoxicated, that he was not under the influence of liquor in any particular, but on the other hand he admits that he had a couple of drinks at some time before the accident. That these drinks of liquor did not affect him in the least in his operation of the car, but that due to having worked hard that day and having had some trouble in sleeping due to an attack of an ailment bordering on flu or cold, or something of that kind, he was tired and that at the time he went to sleep and while in that condition he let his car get on the wrong side of the street which he admits is wrong, and that he is guilty of reckless driving and that that was the cause of the accident." The instruction then states that if the jury believes the defendant's testimony or if his testimony raises any doubt in the minds of the jurors "as to whether or not the state is right in contending that he was drunk", the jury should acquit the defendant.

At the outset, it may be observed that the defendant was not charged with drunkenness or driving his car while drunk, but merely with operating an automobile while under the influence of intoxicating liquor. Moreover, the requested instruction was argumentative and singled out particular items of the testimony, which, as this court has said, is a "bad practice and sometimes reversible error": Statev. Newlin, 92 Or. 589, 182 P. 133. "It is not the province of the court to single out the testimony of particular witnesses in the case and thereby suggest to the jury the weight that should be given to it": State v. Wisdom, 122 Or. 148, 257 P. 826. No error was committed by the trial court in refusing to give the requested instruction. In the instructions given the court made it clear to the jury that it must be convinced beyond a reasonable doubt that the defendant was guilty of driving while under the influence of intoxicating liquor, before it could return a verdict of guilty.

There remains only one other assignment of error urged by the defendant in his petition for rehearing, namely, that the court erred in giving a certain instruction. There was no objection taken by the defendant to that instruction. Furthermore, we do not believe that the defendant was in any way prejudiced by the giving of the instruction. The charge given by the court must be considered as a whole, and it is manifest that the instructions in this case in their entirety fairly presented to the jury the question to be decided.

The petition for rehearing is denied.