STATE OF OREGON v. MOORE

Reversed with directions to dismiss and discharge defendant March 5, 1952.

REVERSED.

TOOZE, J.

Defendant was indicted by the grand jury of Clackamas county for the crime of contributing to the delinquency of a minor. Upon his plea of "not guilty", a trial was had to a jury. Defendant was convicted and sentenced to imprisonment in the state penitentiary for a period not to exceed two years. From that judgment he appeals to this court.

Because of the nature of this case, we are omitting use of the name of the minor involved, substituting therefor in all instances the designation "Miss X".

Omitting formal parts, the indictment charges:

Upon the trial, the only evidence offered in connection with the specific acts charged in the indictment was the testimony of the prosecuting witness, Miss X. Her entire testimony with respect to those matters was as follows:

Explaining what she meant by the term "private parts", the witness further testified:

Upon the conclusion of the evidence, the defendant's counsel did not move the court for a directed verdict of not guilty upon the ground that there was a total want of evidence to establish the allegations of the indictment. However, after verdict and before judgment, defendant did file a motion to set aside the verdict and for a new trial, assigning as one of the reasons therefor "insufficiency of the evidence to justify the verdict." The motion was denied.

1. It will be observed that the motion for a new trial was based in part upon "insufficiency of the evidence to justify the verdict." Under § 5-802 (6), OCLA, that is one of the grounds stated for a new trial. However, since that act was adopted, the constitution of Oregon has been amended: art. VII, § 3. Under that amendment, the trial court no longer has the power to grant a new trial for "insufficiency of the evidence to justify the verdict." All that the court may now do, so far as the facts are concerned, is to examine the record to determine whether it "can affirmatively say there is no evidence to support the verdict." Van Lom v. Schneiderman, 187 Or. 89, 95, 210 P.2d 461. For our purposes, therefore, the only question that may be considered is whether there is any substantial evidence to support the verdict; provided, of course, we are permitted to decide that issue in the absence of proper exceptions.

Defendant's bill of exceptions in this case consists of a transcript of the whole testimony and all the proceedings had at the trial, including the instructions of the court, as permitted by the provisions of § 5-703, OCLA. No special exceptions are noted.

The principal contention urged by defendant on this appeal is that there is a total want of evidence to sustain the charges contained in the indictment and, therefore, no evidence to support the verdict.

2, 3. This is a court of review, not a court of original jurisdiction, except as to mandamus, quo warranto, and habeas corpus. § 2, art. VII, Oregon Const. It is a general rule, needing no citation of authority, that it is only error which is legally excepted to that can be reviewed upon an appeal. However, in keeping with principles of justice, this court has recognized an exception to the general rule where the record, considered in its entirety, shows that the defendant has not had the kind of trial contemplated by law. In such circumstances, this court has held that it may properly take cognizance of palpable errors, even though the questions have not been saved by proper exceptions. State v. Pace, 187 Or. 498, 510, 212 P.2d 755.

4. It is elementary that the constitutional right of an accused person to a fair and impartial trial according to the law and evidence should not be frittered away or destroyed because of the neglect of counsel in failing to make a motion for a directed verdict of not guilty, where there is a total want of evidence to sustain the charge.

The rule is well stated in U.S. v. Stoehr, 100 F.Supp. 143, 152, as follows:

In 3 Am Jur, Appeal and Error, 33, § 248, it is stated:

5. The judgment roll in this case includes the bill of exceptions. § 26-1221, OCLA. The entire record is before us. If that record discloses an entire want of evidence to sustain the verdict, as distinguished from a mere insufficiency of evidence, we may, under the rules stated, properly take cognizance of the error; in truth, and in the interests of justice, it is our duty to do so. Particularly is this true where, as here, the contention of defendant was actually presented to the trial court before judgment was entered.

6-8. For the purposes of this review, it must be admitted that the testimony of the prosecuting witness expresses the truth. With this in mind, the sole question for determination is whether that evidence establishes, or tends in any way to establish, the charges contained in the indictment. In this connection, we must, of course, concern ourselves with the specific charges made. We are not permitted to substitute for the evidence necessary to prove the particular charges now under consideration, evidence of other acts which the record may disclose.

Section 23-1034, OCLA, upon which the indictment in this case is based, insofar as applicable, provides:

9-12. In an indictment charging the crime of contributing to the delinquency of a child, and based upon the foregoing provision of the statute, it is necessary to allege and prove the specific act or acts relied upon as manifestly tending to cause delinquency. One cannot be convicted under such an indictment unless the specific acts, or one or more thereof as alleged, are established by the evidence. Of course, it is further necessary to prove that the act or acts so established manifestly tended to cause the child to become a delinquent child. In other words, it is necessary to establish by the evidence: (1) one or more of the acts of misconduct specifically alleged, and (2) that such act or acts manifestly tended to cause the child to become a delinquent child.

13. The first charge made against defendant is that he "did then and there fondle and manipulate the private parts" of Miss X. (Italics ours.) This is a direct charge of a completed act. The only evidence to support the charge is the statement of Miss X that "he kissed me and hugged me, and then he played with my breasts".

It is hornbook law that, whenever and wherever the terms "privates" or "private parts" are used as descriptive of a part of the human body, they refer to the genital organs. Every dictionary so defines them. It was in this sense that the witness used the term "private parts", and it also is the sense in which the district attorney treated it. In his opening statement to the jury, while outlining what the state expected to prove, the district attorney said: "the evidence we will produce will show that the defendant, on these occasions, manipulated the genitals of [Miss X]."

Reprehensible as it might be for an adult male to kiss and hug a fourteen-year-old female, and to play with her breasts, nevertheless, neither as a matter of fact nor of law, does that constitute "fondling and manipulating her private parts." A woman's breasts do not come within the designation "private parts." Obviously they are no part of her "genital organs".

14. Though admittedly the testimony of the prosecuting witness fell short of establishing the specific charge contained in the indictment, yet the district attorney argues that it establishes an attempt to commit the alleged act. Although we do not believe that proof of an attempt to do the specific thing charged in connection with the matter now under discussion would meet the requirements of the law, notwithstanding, as will later appear, the testimony falls short of establishing even such an attempt within the meaning of the law. We will discuss "attempt" in conjunction with the next specific charge contained in the indictment.

15. The charge is that defendant did then and there "attempt to have sexual intercourse with the said [Miss X]." In effect, this charge is one of attempted rape, because the carnal knowledge of a female child under the age of sixteen years, with or without her consent constitutes rape. The law conclusively presumes that a child within those age limits is incapable of giving her consent to the act of sexual intercourse.

16. In 44 Am Jur, Rape, 917, § 26, the rule is stated:

17. In 14 Am Jur, Criminal Law, 816, § 68, we read:

Also see § 23-1402, OCLA, as amended by ch. 84, Oregon Laws 1941; State v. Duffy et al., 135 Or. 290, 295 P 953; State v. Taylor, 47 Or. 455, 458, 84 P 82.

18. In State v. Taylor, supra, at page 458, the late Chief Justice ROBERT S. BEAN quoted with approval the following from 3 Am. & Eng. Enc. Law 3d ed, 250:

Tested by these rules, it is manifest that there is not a scintilla of evidence in this record which establishes or tends to establish an attempt on the part of defendant to fondle and manipulate the private parts of Miss X, or to have sexual intercourse with her.

The only evidence in the record having the slightest bearing upon this issue is the statement of Miss X that defendant "started to put his hands on my private parts; * * * and he didn't have a chance." (Italics ours.) When he started to put his hands on her private parts, what did he do? The evidence is wholly silent as to what his actions were. What motion, if any, did he make with his hands that led her to conclude he had started to do the thing she says he started to do? And even if he had started to move his hands in the direction of her private parts, that would have fallen far short of constituting an attempt to commit a crime, under the rules of law applicable.

19. Though quite immaterial to a decision upon the matter before us, yet, out of a sense of justice, we feel that we should note in passing that defendant unequivocally denied the charges made by the prosecuting witness. It is not for us to weigh the testimony, nor to determine the guilt or innocence of the defendant. Our sole province is to declare the law. Other assignments of error are made by defendant, but the conclusion we have reached renders a discussion thereof unnecessary.

In view of the record made in the trial court, we think it proper to mention, before concluding, that counsel who now represents the defendant did not participate in the trial of this case. He was employed after verdict.

Because of want of proof of the specific charges contained in the indictment, and based upon the record before us and upon the statements of this opinion, the judgment of the trial court is reversed and this cause remanded with directions to dismiss the action and discharge the defendant.