161 P. 689 | Or. | 1916
delivered the opinion of the court.
The first eight assignments of error are so closely related as to be susceptible of discussion together.
In Commonwealth v. Kaiser, 184 Pa. 493, 499 (39 Atl. 299, 300), the court says:
“The commonwealth claimed a conspiracy, but the court held the evidence insufficient to sustain that contention, but admitted evidence of the pi'esenee and identification of accomplices. The question of accomplices and what they did is a different one from con*382 spiracy, but the two issues run closely together in the mode of proof and the evidence to establish them. ’ ’
Again, in Fitzpatrick v. United States, 178 U. S. 304 (44 L. Ed. 1078, 20 Sup. Ct. Eep. 944), we note the following language:
“As there was some evidence tending to show a joint action on the part of the three defendants, any fact having a tendency to connect them with the murder was competent upon the trial of Fitzpatrick. The-true distinction is between statements made after the fact, which are competent only against the party making the statement, and facts connecting either party with the crime which are competent as a part of the whole transaction. In the trial of either party it is proper to lay before the jury the entire affair, including the acts and conduct of all the defendants from the time the homicide was first contemplated to the time the transaction was closed. It may have a bearing only against the party doing the act, or it may have a remoter bearing upon the other defendants; but, such as it is, it is competent to be laid before the jury.”
In Musser v. State, 157 Ind. 123 (61 N. E. 1), it is said:
“The rule urged by appellant in regard to the declarations and acts of a conspirator made after the object of the conspiracy has been accomplished has no-application to such evidence. The evidence was concerning a physical fact, and tended to prove the guilt of Marshall, and when considered in connection with all the other evidence in the case also tended to prove the guilt of appellant. There was no doubt that a homicide had been committed. The question of the guilt or innocence of appellant was to be determined by the jury. There was evidence tending to show that three persons were present at the commission of the crime, and any fact tending to connect any one of them with the crime was competent evidence against*383 the others. That evidence of this character is admissible is -well settled.”
It would seem that the authorities make a marked distinction between evidence tending to show a conspiracy and that which tends simply to disclose joint action. Upon the latter theory the evidence was properly admitted.
“The state had the right, on the cross-examination, to ask this witness anything that would show his interest in the result of the trial, and anything he did in aid of the defendant about the trial, for the purpose of enabling the jury to properly weigh his evidence, .and to intelligently pass upon his credibility. ”
The same doctrine is quite clearly stated in State v. Finch, 54 Or. 482 (103 Pac. 505), and we conclude that there was no error in admitting the evidence.
“If you should infer from proven circumstances alone that adulterous relations existed between the defendant William Branson and Anna Booth, you cannot base upon such inference the further inference of the slaying of William Booth by the defendant William Branson. In other words, inferences can only arise from facts legally proved and not from other inferences.”
The court refused the request, and this is assigned as error. All that needs to be said in relation to this assignment is that the substance of the requested instruction is fully covered by the charge which was given, and consequently it was not error to decline a repetition thereof.
“You are instructed that one of the defenses interposed by the defendant in this case is what is known as an alibi; that is, that the defendant was at another place at the time of the commission of the crime. The court instructs you that such defense is as proper and legitimate if proven, as any other, and all evidence bearing upon that point should be carefully considered by you. If, in view of all the evidence, you have a reasonable doubt as to whether the defendant was in some other place when the crime was committed, then you should give the defendant the benefit of the doubt. Regarding the defense of an alibi, you are instructed that the defendant is not required to prove that defense beyond a reasonable doubt, to entitle him to an acquittal, but is sufficient if the evidence raises a reasonable doubt of his presence at the time and placé of the commission of the crime charged.”
“You are instructed that one of the defenses interposed by the defendant in this case is what is known as an alibi; that is, that the defendant Branson was at another place at the time of the commission of the alleged crime. This court instructs you that such defense is as proper and legitimate, if proven, as any other and all evidence bearing upon that point should be carefully considered by you. If, in view of all the evidence, you have a reasonable doubt as to whether the defendant was at some other place when the crime was committed, then you should give the defendant the benefit of that doubt, and find the defendant not guilty, subject, however, to the other instructions which I will give you relative to the law of this case. Regarding the defense of an alibi, you are instructed that the defendant is not required to prove that defense beyond a reasonable doubt to entitle him to acquittal, but it is sufficient if the evidence raises a reasonable doubt of his presence at the time and place of the commission of the crime charged. In this case, however, you should bear in mind the instruction which I have heretofore given you that if the defendant and Anna Booth 'were acting together with the common design to bring about the death of William Booth, in the manner and as charged in the indictment, it would not be necessary for both of them to have been actually present at the place and at the time of the alleged crime, for, as I have stated to you before, each codefendant is bound by the act of the other in the furtherance and execution of the common design.”
This is undoubtedly a correct and excellent abstract exposition of law, and, if the record disclosed any evidence of a common design or conspiracy to take the life of William Booth, there would be no doubt whatever of the correctness of the charge. We have searched the record in vain for a scintilla of evidence tending to disclose any conspiracy or common design
“If the Supreme Court shall be of opinion, after consideration of * * the matters thus submitted, that the judgment of the court appealed from was such as should have been rendered in' the case, such judgment shall be affirmed, notwithstanding any error committed during the trial.”
To answer this suggestion fully would involve such a discussion of the value and effect of the evidence in the case as would, under the circumstances, be improper. We thus confine ourselves to saying that an elimination of the question of conspiracy might well have a direct influence upon a jury’s determination of the decree of crime involved in the acts as a crime, and such determination must always remain a function of the jury rather than of the court.
It follows that the judgment must be reversed and the cause remanded for a new trial. Reversed.