115 P. 287 | Or. | 1911
delivered the opinion of the court.
“When the action is called for trial the clerk shall draw from the trial jury box of the court, one by one, the ballots containing the names of the jurors until the jury is completed or the ballots are exhausted. If the ballots become exhausted before the jury is complete, the sheriff, under the direction of the court, shall summon 'from the bystanders, or the body of the county, so many qualified persons as may be necessary, to complete the jury.”
According to Section 1005, L. O. L., the sheriff summons persons named in the panel by giving written notice to each of them personally or by leaving the same at his place of residence with some person of suitable age and discretion. As each juror from the special venires was examined, and the defendant inquired of him by whom he was served, and to each one answering that he was served by some person other than the sheriff himself in person, the defendant objected because of that. This, in our judgment, amounts to a challenge to the
The juror Cook was slightly acquainted with the defendants Caseday and Albert Green, but not with the defendant Shields. He had heard of the killing of Snyder and read about it in the local papers; had talked some with other people about it, but had not expressed any opinion himself. He was absent in Portland during the trial of Hinton, had not formed an opinion as to the guilt or innocence of Caseday, and stated that he would not take into consideration what he had heard or read of the evidence in the trial against Hinton, but would go by what was produced in the present trial; that he would not consider the fact that Hinton had been convicted unless the evidence showed a connection between Hinton and Caseday, in which event he would give some consideration to the conviction of Hinton; but on examination by the court he answered that he would surely go by the directions of the court not to consider the fact that Hinton was convicted.
Bert Howard was not acquainted with any of the defendants; had heard of the killing of Oliver Snyder, had heard the name of the defendant used in connection with it only as a deputy sheriff at the time; had read the county paper; and had participated in the discussion of the reports; but had not taken enough interest in the matter to inform himself as to the facts for his own satisfaction and had not expressed any opinion as to the guilt or innocence of Caseday. He was present in Canyon City about 15 minutes while some one of counsel was arguing the case of Hinton to the jury, but who it was he did not remember.
The court overruled the challenges for cause made by the defendant against the jurors Cook and Howard and permitted them to participate in the trial of Caseday.
The defense, to sustain these challenges, relies upon the case of State v. Miller, 46 Or. 485 (81 Pac. 363). In that case some of the talesmen testified that they were in court at the former trial when the widow of the decedent gave her testimony; that they had talked to a good many witnesses who gave testimony at the former trial, and also to some of the jurors who returned a verdict of guilty therein; that they detailed as nearly as they could the facts involved, and, having confidence in what they said, the jurors had formed a fixed opinion as to the merits of the case which it would require strong testimony to overthrow, and which would prevent the parties starting on an equal race in the trial; but that if accepted as jurors they could lay aside such prejudice and try the case fairly and impartially. This court reversed the circuit court on this point with the statement that: “As we remember the testimony given at the former trial by Mrs. Curtis, who heard the fatal shots fired that made her a widow, we do no believe any person could listen to her recital of the facts without forming such an opinion as to render him biased as to the merits of the case. Nor could a person hear the witnesses or the jurors tell the story of the homicide, as it was unfolded in court, without forming such an opinion as to the guilt or innocence of the defendant as to render him prejudiced in the matter.”
Intelligent men having any local interest in such an occurrence as a supposed murder will usually form an
The examination of Allen, Cook and Howard reveals a mental state in them widely different from that of the jurors under consideration in the case of State v. Miller, 46 Or. 485 (81 Pac. 363.) There they had attended the trial and heard the testimony, had talked in detail with witnesses-and jurors of a former trial, and had in effect thoroughly tried and determined the issue, substantially traversing the same course to be then pursued in the new trial. The tentative opinions of the jurors here fall far short of the standard of actual bias established in that decision. In the last analysis, jury service is voluntary, a duty owing from the people to the government of the peo
“The full number of jurors having been called shall thereupon be examined as to their- qualifications, first by the defendant and then by the plaintiff, and having been passed for cause, peremptory challenges shall be conducted as follows, to wit: The defendant may chai
If it is correct to assume, as counsel for defendant apparently contend, that this section applies to criminal trials, the action of the court may be defended on the principle that, having adopted the statute of another State, we adopt with it the judicial construction given to the statute by the courts of that State. Crawford v. Roberts, 8 Or. 324; McIntyre v. Kamm, 12 Or. 253 (7 Pac. 27); Trabant v. Rummell, 14 Or. 17 (12 Pac. 56); Everding v. McGinn, 23 Or. 15 (35 Pac. 178). In State v. Eddon, 8 Wash. 292, 305 (36 Pac. 139), the Supreme Court of that State construed their statute from which Section 126, L. O. L., was taken, to mean that the peremptory challenges should be used first by one party and then by the other in proportion to the number allotted to each, working out as a result that, where the defendant was allowed twelve and the State six, the former should use two to the State’s one of such challenges. Similar statutes have received like construction in Idaho
In our judgment, however, it is not necessary to rely on this construction of the law. The Code of Civil Procedure has its origin in the act of the legislative assembly of October 11, 1862, while the Code of Criminal Procedure is embodied in the act of October 19, 1864, and amendments thereto. Deady’s Code, pp. 139, 441. They are independent acts having no relation to each other except as provided by reference from the latter to the former. In the formation of the jury the Criminal Code declares that:
“In criminal actions, the trial jury is formed in the manner prescribed in Chapter II of Title II of the Code of Civil Procedure, except as otherwise expressly provided in this chapter.” Section 1520, L. O. L.
The Criminal Code in the same chapter excludes the civil challenge for implied bias (Section 122, L. O. L.), and substitutes one of its own (Section 1521, L. O. L.), besides dispensing with the equality in the number of peremptory challenges designated in Section 125, L. 0. L., and allowing the defendant in criminal actions double the number apportioned to the State. In these respects the Criminal Code itself provides otherwise than the Civil Code. Section 1520, L. O. L., must be construed to be a reference to the Civil Code as it was at the date of the enactment of the Criminal Code. It is as if chapter 2 of title 2 of the act of October 11, 1862, except sections 122 and 125, were reprinted in the Criminal Code as part of the latter.
It is impossible within the limits of an ordinary opinion to notice in detail each one of the 141 assignments of error noted in the bill of exceptions. The principal contention of the defendant is that the court erred in admitting testimony about the actions' and private conferences between the defendants Shields, Green, and Case-day in Monument and Hamilton the evening before the killing of Snyder and of the declarations and threats of Shields and his conduct in trying to get different parties to help hang Snyder. This theory of objection runs throughout the case and is the foundation of most of the exceptions to the charge of the court. It is rare that a criminal conspiracy can be proven by direct and positive testimony. Most generally the prosecution is compelled to rely on circumstantial evidence.
“Where a conviction for a criminal offense is sought upon circumstantial evidence alone, the State must show beyond a reasonable doubt that the alleged facts and circumstances are true, and they must be such facts and circumstances as are absolutely incompatible upon any reasonable hypothesis with the innocence of the accused and incapable of explanation upon any reasonable hypothesis other than that of the guilt of the accused. If all the facts and circumstances relied on by the State to secure a conviction can be reasonably accounted for upon any theory consistent with the innocence of the defendant, such facts and circumstances are not sufficient to sustain a conviction.”
This instruction, taken as a whole, is erroneous. The term “absolutely” implies mathematical demonstration which is a degree of proof impossible in any matter involving the actions of human beings. The law does not contemplate such a degree of certainty, but requires only moral certainty to the exclusion of reasonable doubt of the guilt of the defendant. State v. Glass, 5 Or. 73.
“Notwithstanding the admissions and confessions of a defendant may be given against him on his trial for crime, such admissions or confessions are not alone sufficient to warrant a conviction without some other proof that the crime has been committed.”
The defendant contends that this part of the charge is erroneous because it does not state the degree of proof necessary to supplement the original admission or confession. The language is practically that of the Code (Section 1537, L. O. L.), and in that respect differs from
“The testimony of some witnesses has been offered by the State to show certain oral statements made by the defendant now on trial, after the death of Oliver Snyder. In criminal law a statement voluntarily made by a person of a fact only, which is as consistent with his innocence as with his guilt, and is made exculpatory, or in explanation of any suspicious or incriminating circumstances, is an admission; but when the statement carries with it a suggestion of guilt, either as to the character of his intent, or the quality of his act, and the statement is made inculpatory, such statement is in the nature of a confession.”
Taken in connection with the whole of the court’s charge, the learned judge was simply distinguishing between confessions and admissions with a view of explaining the latter to the jury. There is abundant evidence in the record to authorize an instruction about admissions, for the witnesses detailed several things stated by the defendant after the killing of Snyder, and the distinction made by the court was quite proper within the meaning of State v. Heidenreich, 29 Or. 381 (45 Pac. 755), and State v. Porter, 32 Or. 135 (49 Pac. 964).
Some questions about cross-examination of witnesses are raised in defendant’s brief; but none of them are meritorious or show any erroneous exercise of the court’s authority over those features of the trial as defined by our Code. Section 856, L. O. L.
“If any person shall, in the commission of an unlawful act, or a lawful act without due caution or circumspection, involuntarily kill another, such person' shall be deemed guilty of manslaughter.”
We are at a loss to perceive how this section applies to the case in hand unless it be claimed that in proceeding towards Canyon City with his prisoner alone after being warned of a plot to lynch Snyder, the defendant performed a lawful act without due care or circumspection on account of which the death of the prisoner occurred.
In our opinion upon the whole case there is no halfway ground for the defendant to occupy between innocence and murder. The trial court went as far as proper in his favor in advising the jury about the degrees of homicide. There being no theory of the evidence upon which to predicate manslaughter, the court was right in refusing an instruction upon that point. To accede to defendant’s request in that respect would have been turning the jury loose to speculate outside of the evidence, and, as the slang goes, to “return a verdict on general principles.” It would have exposed the defendant to a danger not at all justified by the evidence or the law applicable to the case. The alternative of the defendant’s innocence or his guilt of the only species of homicide which could be derived from any reasonable theory arising from the
The judgment is affirmed. Affirmed.