101 P. 198 | Or. | 1909
delivered the opinion of the court.
The defendant was convicted of the crime of statutory rape on Carrie Staggs, a girl about 14 years of age. The indictment charges the crime to have been committed
In August the defendant was arrested on an information, sworn to by the prosecuting witness, and held by a justice of peace to await the action of the grand jury, for the crime of an assault with intent to commit rape,
The defendant denied his guilt and all the improper acts charged against him by the prosecutrix, and gave testimony tending to show:' That on the night of the 3d of June he was in attendance upon the Commercial Club of Medford, in regard to a matter in which his daughter was interested; - that he returned home from the club about 11 o’clock, and his wife and daughter were waiting for him to aseertáin the result of his visit; that they talked the matter over for a time and then retired; that he and his wife occupied the same bed; that it would have been impossible for him to have gotten out of bed and gone to the room occupied by prosecutrix without the knowledge of his wife and daughter, and they both testified that he did not do so. The record contains a
“The defendant must be tried by you only on the specific charge specified in the indictment. He must be convicted of no other crime nor upon any other charge. You must confine your deliberations upon the whole evidence to the particular crime charged in the indictment, and if that crime has not been proven beyond a reasonable doubt, you must acquit the defendant.”
And also that:
“The girl' gave evidence of other assaults upon her by the defendant in addition to the one charged in the indictment. You are not to consider such evidence for any purpose, excepting as to what bearing it may have upon the truthfulness of the particular charge in this case.”
These instructions were not only refused, but the court said to the jury that it was .not necessary for the State to prove the absolute date on which the crime was com
“No, I won’t, because you have already got it out. I think the statement should not have been made, though.”
Counsel thereupon proceeded with his statement, when he was interrupted by the court, and the following occurred:
“The Court: ‘Don’t make any more argument. If you have any more statements to make to what you expect to prove, say it as briefly as possible. Don’t take up all the afternoon with these arguments.’
“Mr. Reames: T would like an exception to the remark of the court.’
“The Court: T will not give you an exception.’
“Mr. Reames: ‘If a dispute arises between the attorney and the court as to what transpires-’
*469 “The Court: ‘Take your seat, Mr. Reames.’ ”
Whereupon Mr. Reames sat down and after a moment arose and said:
“May I have an exception to that remark?”
The Court: “No.”
Mr. Reames: “Will your honor allow me to prove by the testimony of three witnesses-”
The- Court: “No, it all appears here in the record, and that is all the exception you need. I have listened here for a long time supposing you were going to close some time in the day.”
Mr. Colvig: “Let the record show that we tried to get an exception, but the court said he would not grant it.”
Mr. Mulkey (District Attorney) : “I would be glad if the court would permit them to make or complete their opening statement, but not to make an appeal to the jury, as they seemed to be doing in the argument of the case.”
The Court: “I told him that if he had any further statement of what he expected to prove, he could make it.”
Mr. Reames: “The point of the exception is, that the remark of the court took away from the jury the value of what I might say.
The Court: “I am not giving him any exception on what he is not entitled to.”
No further opening statement by the defense was made, and the State proceeded with its testimony.
While defendant’s counsel was interrogating the prosecutrix as to the time she told her sister of defendant’s visit to her room, and whether it was on the next day after the crime charged in the indictment was alleged to have been committed, the State objected “to pinning the witness down to dates,” when the matter was left open on direct examination. Whereupon the court said:
“I think you can straighten the matter up on reexamination. Of course, any witness is liable to be confused as to the dates.”
The Court: “I shall allow them to do so, and I shall make remarks whenever I think it is necessary. I don’t propose that any advantage shall be taken of a young witness like this, and pin her down to dates when she is not able to specify any dates.”
Mr. Reames: “Will your honor allow us an exception to that remark?”
The Court: “You may take an exception to what I have said, but you are not entitled to any exceptions because I have not prevented you from asking any question. I said I would allow the State, if possible, to explain' the matter by the evidence, so we may understand it, whether the girl is testifying to facts as you want them to appear or not.”
Again, on cross-examination, she was asked, when she first told a Mr. Tull about defendant coming to her room on the 3d of June and placing his hand on her person. The State interposed an objection on the ground that it was not proper cross-examination, and thereupon the following occurred:
“The Court: ‘Has she testified to anything- of that kind?’
“Mr. Kelley: ‘No, sir.’ ”
The court thereupon sustained the objection, and defendant asked and was allowed an exception.
Mr. Reames: “We would like to place in the record what the answer would be. We expect the answer will be, if the witness were permitted to answer, ‘Some time about that time.’ ”
The Court: “You may ask her whether at any given time and place, giving the names of the persons present, whether she has made these statements.”
Mr. Reames: “That is what I want to find out.”
The Court: “You have no business to put out a drag net for it to find out.”
Mr. Reames: “I wish an exception to the remark of the court.”
*471 The Court: “I won’t give you an exception. It goes into the record, and if the Supreme Court wants to reverse the case on that, they can do so.”
Again, she was asked on cross-examination where she passed the night after she swore to the information in the justice court charging defendant with an assault with intent to commit rape, and why she did not go to her own home. An objection was sustained to the question on the ground that it was not proper cross-examination. She was then asked if she did not go to the Moore Hotel in Medford. The State objected as not proper cross-examination, and irrelevant and immaterial, and thereupon the following occurred:
“The Court: T don’t think it is proper cross-examination.’
“Mr. Reames: ‘For the purpose of the record I desire to ask the question.’
“The Court: ‘The way you start out with the question I think it is objectionable.’
“Mr. Reames: T am asking her now, if on the evening of the 1st of August, 1908, if she did not occupy a room in the Moore Hotel in the City of Medford, that she knows two other persons who are greatly interested in the prosecution of this case occupied rooms on that floor the same night ?’ ”
The court sustained the objection, and thereupon defendant asked and was allowed an exception; the court saying:
“I won’t take up the time with such nonsense. You know, if you are an attorney, that it is not proper cross-examination.”
Mr. Reames: “Not even to show by the witness the motives of the prosecution?”
The Court: ‘You can show it, but you can’t ask the witness matters that she has not testified to and not matter of cross-examination. It don’t make any difference whether she is prosecuting witness, or what she is, the same rule will apply.”
Mr. Reames: “I desire an exception.”
*472 The Court: “Take your exception. The Supreme Court will tell you that you had no business to ask such questions.”
Mr. Reames: “I ask an exception to that remark.” After the prosecutrix had testified that she verified two informations or complaints in the justice’s court, and after they had both been admitted in evidence, she was asked whether they referred to the same transaction, and replied, “I think so.” She was then asked, “Can you give me a fairer answer than that?” But before she replied the court requested to see the complaints, and after examining them said, “I think that answers sufficiently.” Counsel for defendant remarked:
“Just so there will be no mistake about it on re-direct.” The Court: “I don’t think it is necessary for her to be more positive than that.”
Mr. Reames: “I would like an exception to that.” The Court: “I will not give you an exception.”
Mr. Reames: “I would like to have an exception to the remark of the court.”
The Court: “I will not give you an exception. Go on with the examination.”
Mr. Reames: “I would like an exception to the remark of the court.”
The Court: “I will take an exception to you pretty soon, if you don’t go ahead with this.”
Mr. Reames: “I would like an exception to that remark. -1 am certainly trying to be fair.”
It appeared from the-cross-examination of prosecutrix that she first laid the date of the alleged crime as June 27th, and so testified at the preliminary hearing in the justice’s court, and before the grand jury; but during the examination of the case by the grand jury it developed that defendant was not at home on that date and would be able to prove an alibi. The witness, after being advised of this fact, was recalled by the grand jury and changed the date to the 3d of June. She was thereupon asked the following question:
*473 “Now the person who told you this also told you that Mr. Coss had established before the grand jury positive proof by his sworn testimony that you were not employed as a domestic in his household on the 27th day of June.”
The State objected, for the reason that the question was “evidently asked for the purpose of laying the foundation for an impeaching question, and there is no time, place, or persons present shown.”
The Court: “That is true.”
Mr. Reames: “We were not present at any of those times or places, and we can’t fix the time and place.”
The Court: “Then you have no business asking the question, because it is an impeaching question.”
She was also asked concerning statements made by her to Mr. Kelley, one of the attorneys appearing for the State, and whether Kelley appeared for the State at the preliminary examination, and when she first told him about defendant’s conduct. The State objected to all these questions, as immaterial, and the court sustained the objections, saying:
“There is no use taking up an hour or two laying the foundation and then not to lay it.”
Mr. Reames: “I would if the objections were not sustained.”
The Court: “If you know the time and place and persons present, ask her, and not ask this and that as to who were attorneys and who were not attorneys. If you want to ask her an impeaching question, put it straight, and she will get it.”
The witness further testified that she first told Kelley after the preliminary examination, that she went to his office voluntarily, for that purpose, and then told him defendant came to her room and placed his hand upon her person; that she pushed him away, and he left the room, and that was all that occurred. She was then asked:
“How many times did you see Mr. Kelley after that, concerning the matter, if you know — more than a dozen ?”
A. “I don’t think so.”
*474 Q. “Well, about how many?”
To which question the State objected on the ground that it was immaterial, and “if they want to lay the foundation for proving any other statements made at any other time, they may do so.” The objection was sustained and defendant allowed an exception. The witness testified that she was acquainted with Mrs. Meader, and went to work for her on the 6th of June, and continued until the 24th. She was then asked whether, before she quit work for Mrs. Meader, she had told any public officer, justice of peace, or district attorney, that defendant had ever done anything wrong to her. The State objected on the ground that it was immaterial and irrelevant, which objection was sustained; the court, saying, “Wholly so.” To which ruling defendant asked and was allowed an exception; the court saying:
“She wasn’t called upon to tell any officer.”
Mr. Reames asked an exception to that remark of the court.
The Court: “You will get full of exceptions after awhile.”
Mr. Reames: “We except to that remark. I am just as courteous to the court as an attorney can be.”
The Court: “You have asked many questions which you know as an attorney you are not entitled to ask. Go on with the evidence.”
Mr. Reames: “I desire an exception to that remark.”
Th’e defendant was arrested about the 1st of August, and on that day, or about that time, he went to see.the fáther of the prosecutrix, for the purpose, as the State claims, of inducing him, for a money consideration, to persuade the prosecutrix to leave the country or otherwise quash the proceedings. To rebut this testimony and show why he called upon the father of the prosecutrix, the defendant called as a witness H. T. Meader, and offered to show by him that the defendant went to see the father at his request or upon his suggestion.
“I don’t think it is competent evidence, but I am going to admit it. The jury will receive such evidence as is admitted by the court.”
Mr. Reames: “We wish an exception to the remark of the court, as it takes away the value of the evidence.”
The Court: “I have a right to express an opinion in regard to it, but if it interferes with you, I will sustain the objection, but let him answer the question asked him, and you may detail the particular instance, not detail the conversation between Coss and himself.”
The remarks of the court, as thus set out, were unfortunate, and while it may be that no one of them, if standing alone, would be sufficient to reverse the judgment, yet, when taken together and as a whole, we are strongly impressed with the idea that the general effect would not have been other than harmful. They indicated an attitude of the court toward counsel for the defense and the manner in which they were conducting the case, which was calculated to prejudice their client with the jury, although evidently not so intended.. It may be that the remarks, in a measure, were provoked by the conduct of the attorneys and the tediousness of the cross-examination of the prosecutrix, but this would not justify their utterance or destroy their effect upon the jury, for, as said by Mr. Justice Thayer, in State v. Clements, 15 Or. 237 (14 Pac. 410): “If there is any one virtue in the judicial mind entitled to superior excellence, it is patience to hear and determine matters involving the rights and liberties of those charged with the commission of a crime.” No attempt was made by the court, in its instructions or otherwise, to correct any impressions the jury may have received from the statements, nor were the jury instructed to disregard them, and, on the whole, we are of the opinion that they were prejudicial error.
“I will kill him. I can kill him. Yes, I can do it.”
And she wanted to send him to the penitentiary, no matter what was the charge. Defendant also offered to show that at the time the information filed'in the justice’s court was sworn to by prosecutrix, and on the night after the preliminary examination, she was at the Moore Hotel with Mrs. Becht and Charles Tull, and occupied a room on the same floor; but the court refused to permit such testimony. Mrs. Erdman, one of defendant’s witnesses, was sick and unable to appear at the trial, and it was
“That upon a time, a few days prior to the first complaint that Carrie Staggs ever made to any public officer of any charge whatever of any crime or wrong against defendant, the Mrs. Becht, mentioned in the evidence as the divorced wife of the defendant, voluntarily came to the home of Mrs. Erdman and asked Mrs. Erdman to be allowed to talk with Carrie Staggs, as she understood that Carrie Staggs was a discharged employee of the defendant. That Carrie Staggs and this woman, Mrs. Becht, thereupon engaged in a long and earnest conversation. That the witness had no interest in the result of the trial. That the witness knows that Charles Tull, mentioned in the evidence, is now, and for more than three months has been, the private detective of the prosecution in this cause.”
This stipulation of facts was offered in evidence the same as if the witness had been on the stand, but, on objection of the State, was excluded. The testimony, thus sought to be elicited, was, in our opinion, competent. It tended to sustain the defendant’s contention that the prosecution was instigated by his divorced wife and brother, and to show their animosity and feeling toward defendant, the interest they were taking in the prosecution, their association with, and relation to, the prosecuting witness, and their possible influence over her.
During his argument to the jury, the district attorney said, among other things:
“I, as an officer of the State of Oregon, wish to assure you that if I didn’t believe he was guilty of the crime I should not wish the thing prosecuted.”
The defendant’s counsel objected to these remarks, and the court ruled and stated to the jury that:
“It is not proper for the attorneys to state what their opinion is. They can draw their conclusion from the evidence. You are to form the opinion.”
It is admitted that the remarks of the district attorney, referred to, were improper and should not have been
It follows, from the views heretofore expressed, that the judgment must be reversed, and a new trial ordered.
Reversed.