State v. Ellsworth, 47 P. 199

Opinion by

Mr. Chief Justice Moore.

1. The record discloses that at the trial, one Frank C. Middleton, a newspaper reporter, being called as a witness by and having given material evidence for the state, testified on cross-examination that he had talked considerably about the case; that he had a very decided opinion about it, and had expressed such opinion to others; and, referring to counsel for defendant, said: “I have expressed it to you, Mr. Leasure, and also to Mr. Sears.” Mr. Leasure, for the purpose of showing the bias of the witness, asked him the following questions: “Do you remember at any time making an expression to me that he was as guilty as hell?” “Did you ever state to Mr. Alfred Sears, counsel in this case, that you thought the defendant ought to b.e hung?” The court, referring to the first question, and without objection from counsel for the state, said to the witness: “You need not answer it,” and sustained an objection to the other question. The *151defendant excepted to this remark and ruling, and now contends that he was thereby denied the right of showing to the jury the prejudice of the witness. It will be observed from an examination of the testimony of the witness, that as to the merits of the case he had a decided opinion, which he expressed to others, but the jury were not informed as to whether such opinion was in favor of or opposed to the accused, and hence were left in doubt as to the degree of credibility to be accorded to his evidence. It might seem that the question as propounded to the witness did not sufficiently call his attention to the time, place, and circumstances when it is assumed he expressed the opinion to Mr. Leasure. The object of this requirement in connection with such questions is to enable the witness to revive in his memory the particular circumstance of which inquiry is made; but, this witness having stated that he had expressed an opinion to Mr. Leasure and Mr. Sears, the necessity of calling his attention to these preliminary facts was obviated, and the question to be considered is whether the refusal of the court to permit the witness to answer the question was the denial of a substantial right to the prejudice of the defendant. Prof. Greenleaf, in his work on Evidence (Vol. i, § 450), in speaking of the right of a defendant in a criminal action to inquire as to the bias of a witness called by his adversary, says: “It has been held not irrelevant to the guilt or innocence of one charged with a crime to inquire of the witness for the prosecution, in cross examination, whether he has not expi‘essed feelings of hostility towards the prisoner.”

In Starks v. People, 5 Denio, 106, the plaintiff in error being on trial for arson, one E. Perkins appeared as a witness for the prosecution, and on cross-examination was asked whether, at a certain time, in speaking to one James Dunton, of the prisoner, and referring to a certain black *152ash swamp, he had not said: “There would be a good place to kill Starks.” The witness having answered in the negative, Dunton was called on the part of the accused to prove that Perkins had made use of the language attributed to him; but, an objection to the question having been sustained, and an exception allowed, the prisoner appealed upon being convicted and sentenced, and Beardsley, C. J., in reversing the judgment, says: “How much, if anything, the evidence of the witness Dunton would have amounted to is not for us to say, but it was clearly competent, and should not have been rejected by the court. It tended more or less to show ill will or malice on the part of the witness towards the prisoner on trial, and was therefore pertinent and material. It is always competent to show that a witness is hostile to the party against whom he is called; that he has threatened revenge; or that a quarrel exists between them. A jury would scrutinize more closely and doubtingly the evidence of a hostile than of an indifferent or friendly witness. Hence it is always competent to show the relations which exist between the witness and the party against, as well’as the one for, whom he was called. The inquiry is material, and goes directly to the credit of the witness in the particular case.” In People v. Wasson, 65 Cal. 538 (4 Pac. 555), the defendant being on trial for murder, one Thomas Carroll was called as a witness for the prosecution, and on cross examination was asked the following question: “I will ask you now, Mr. Carroll, if on Saturday evening, in Pike Payne’s saloon, in the town of Red Bluff, in the presence of Mr. McGowan and Mr. Thatch, both witnesses in this case, you did not make the remark that Wasson (the defendant) ought to have been hung before he felt Butte Creek?” An objection to this question having been sustained and an exception allowed, the defendant was found guilty, and the court, in reversing the judgment, and *153quoting from the opinion in People v. Benson, 52 Cal. 380, say: “It is difficult to see on what ground this evidence was excluded, as it is perfectly well settled that on cross examination a witness may be interrogated as to any circumstance which tends to impeach his credibility by showing that he is biased against the party conducting the cross examination, or that he has an interest in the result adverse to such party. No citation of authorities is needed on a point so well settled, and the ruling was obviously erroneous.” In the case at bar the jury were entitled to know what opinion the witness had expressed, that they might be able to judge of the weight and credibility to be given to his testimony, and the refusal of the court to permit the question to be answered was clearly erroneous, and the denial of a substantial right.

2. Dr. H. W. Cardwell, the physician who was at die death bed, was also called as a witness by the state, and gave material evidence against the defendant, and on cross examination by Mr. Stoddard was asked if, in referring to the failure of the jury to agree upon a verdict at a former trial of this action, he did not, at a certain time and place, ask his friend, a man with a gray moustache, and whose age-was about sixty or sixty-five years, but whose name was unknown to counsel for the defendant, “Whatdoyou think of the jury in the Ellsworth case?” and upon his answering, “Oh, I understand they have disagreed,” did you not then say, “Well, that is better than an acquittal”? An objection to this question having been sustained, the defendant excepted, and now insists that the language attributed to the witness shows hostility to the defendant, and that the person to whom the question was propounded and the remark made was sufficiently identified to revive in the memory of the witness the conversation to which his attention was directed. The rule is well settled in this State that before the hostility of a *154witness can be shown by proof of unfriendly remarks or implicatory acts, such proof must be laid by calling his attention to the time, place, and persons present when the words or acts attributed to him were uttered or .done, that he may refresh his memory, and be afforded an opportunity for explanation: State v. Stewart, 11 Or. 52 (4 Pac. 128). The name of the person to whom the remark was made is not given, but that, if unknown to counsel, could be of little consequence, if the circumstances were detailed with that degree of particularity that necessarily called attention to the language or act complained of, and revived them in the memory of the witness: Pendleton v. Empire Stone Dressing Co., 19 N. Y. 13. Viewed by the rule laid down in that case, we think the question must have accomplished this purpose, and, if the answer should be in the affirmative, it would tend to show bias, the remark being more than the mere expression of an opinion as to the guilt of the accused, in which case it was the duty of the court to permit the question to be answered: People v. Lee Ah Chuck, 66 Cal. 662 (6 Pac. 859).

3. Counsel for the defendant insist that under the evidence submitted the jury were compelled, either to find him guilty as charged in the indictment, or not guilty, and that the verdict rendered is equivalent to an acquittal; and, this being so, the judgment should be reversed, and the cause remanded with instructions to discharge the prisoner. In invoking this principle of law, counsel assumes that the jury must have found that the deceased died from the effects of poison administered by the defendant, and hence the use of the means adopted manifests such a degree of deliberation and premeditation as to show conclusively the existence of malice, from which the jury must have found him guilty of murder in the first degree; and that, if they could not so find, it was their duty to acquit him. Such an instruction having *155been requested, it is claimed the court erred in charging that he might be convicted of manslaughter. Except in the commission of or attempt to commit rape, arson, robbery, or burglary, the killing of another, to constitute murder in the first degree, must have been done purposely and of deliberate and premeditated malice: Hill’s Code, § 1714. And it is further provided that “There shall be some other evidence of malice than the mere proof of the killing to constitute murder in the first degree, unless the killing was effected in the commission or attempt to commit a felony; and deliberation and premeditation, when necessary to constitute murder in the first degree, shall be evidenced by poisoning, lying in wait, or some other proof that the design was formed and matured in cool blood, and not hastily upon the occasion”: Code, § 1727. It is not the mere intent to kill, but rather the manner and circumstance of the killing, coupled with the intent, that renders the act malicious. “The fact that a killing was intentional,” says Bigelow, C. J., in State v. Vaughan (Nev). 39 Pac. 733, “does not necessarily prove that it was done with malice; for an intentional killing may be entirely justifiable, as where it is done in necessary self-defense, or it maybe only manslaughter, as where it is done in the heat of passion caused by a sufficient provocation. What it is must depend upon the manner of the killing and the surrounding circumstances.” The intention to take the life of another by poison presupposes that the substance adopted to carry the evil design into execution can be administered to the victim without the latter’s knowledge, and the mere intent to take life by this means, when death ensues, evinces such deliberation and premeditation as to establish conclusively the existence of malice.

But can it be said that proof of death by poison conclusively implies that the substance producing such result was administered with intent to take life? If this ques*156tion be answered in the affirmative, then it follows that the physician who prescribes a toxic remedy in ordinary doses for the relief of his patient, the druggist who compounds it, and the friend of the deceased who knowingly administers it, are each equally guilty of murder in the first degree, providing the patient, possessing some unknown constitutional idiosyncrasy, die from its effects, although the same medicine, when given to others less susceptible to its influences, would prove a mild tonic or gentle stimulant. The mere statement of the consequences dependent upon the adoption of such a legal proposition ought to prove its own refutation, for, if such a rule could be invoked, heroic treatment in dangerous cases could never be adopted by the most skillful physician. In cases of death by other means, courts have said, in effect, that homicide by poison carries with it conclusive evidence from which a jury would have no option but to find the person administering the substance guilty of murder in the first degree: People v. Bealoba, 17 Cal. 389; State v. Millain, 3 Nev. 409; State v. Garrand, 5 Or. 216; Aguilar v. Territory (N. M.), 46 Pac. 342; Territory v. Padilla, 46 Pac. 346. The language here used was adopted by way of illustration only, and to show that death by other means than poison did not necessarily imply deliberation and premeditation, and hence was not evidence of malice, but the dictum not having been used in cases of death by poisoning can have but little weight in the case at bar. In Commonwealth v. Dougherty, 2 Browne (Pa.) Append. 18, it is said tliat in murder by poison the intention is of the essence of the crime. So, too, in Commonwealth v. Keeper of the Prison, 2 Ashmead, 227, it was held that to constitute murder in the first degree by poison the killing must have been willful. In Pennsylvania, under a statute which provides that the jury in the trial of a person indicted for homicide shall, in case of conviction, find whether it is murder in *157the first or second degree, it has been held error in the trial of a person accused of murder by poison to charge the jury that if they found the defendant guilty, their verdict must be of murder in the first degree: Lane v. Commonwealth, 59 Pa. St. 371; Shaffner v. Commonwealth, 72 Pa. St. 60 (13 Am. Rep. 649); McMeed v. Commonwealth, 114 Pa. St. 300 (9 Atl. 878). Such also would seem to be the rule in Connecticut: See State v. Dowd, 19 Conn. 387. In these cases, however, it may well be doubted if the question at bar as involved, for, in Commonwealth v. Dougherty, 2 Browne (Pa.) Append. 18, the defendant was tried for a homicide committed with an ax, while Commonwealth v. Keeper of the Prison, 2 Ashmead, 227, was a proceeding by habeas corpus to admit to bail persons held for trial upon a charge of murder by administration of poison. The decisions in the other Pennsylvania cases proceed upon the theory that the instructions complained of took from the jury the consideration of a question which was solely within their province.

In Ann v. State, 11 Humph. 159, the plaintiff in error, a female slave, aged about fifteen years, being convicted of murder in the first degree in killing an infant about five wekes old, by administering laudanum to it, to produce sleep, appealed, and McKinney, J., referring to 4 Blackstone’s Commentaries, 199, and Foster’s Crown Law, 261, in reversing the judgment, says: “If, as Blackstone says, the poison were willfully administered, that is, with intent that it should have the effect of destroying the life of the party; or if, in the language of Foster, the act were ‘done deliberately and with intention of mischief, or great bodily harm,’ and death ensue, it will be murder. But if it were not willful, and such deliberate mischievous intention do not appear, and the act was done heedlessly and incautiously, it will be only manslaughter at most.” In State v. Wagner, 47 Am. Rep. 131, Hough, C. J., in commenting *158upon the question, says: “Poison may be carefully and innocently administered for a lawful purpose, and yet may produce death, in which case no crime will have been committed. So, also, a homicide committed by poison heedlessly or incautiously administered for no unlawful purpose will amount, at most, only to manslaughter. But where poison is knowingly administered with intention of mischief, and to accomplish some unlawful purpose, if death ensue it will be murder, although death was not intended.” In Bechtelheimer v. State, 54 Ind. 128, it is held that a purpose to kill is an ingredient of the crime of murder, when the killing is effected by the administration of poison. To the same effect also, see the case of Robbins v. State, 8 Ohio St. 131. The decision in that case is questioned in State v. Brown, 7 Or. 186, in which Kelly, C. J., says: “When a homicide takes place in the commission of a robbery, it is not necessary, in order to constitute murder in the first degree, that the one perpetrating it should purposely kill the person slain, and where purpose is not required to constitute the crime, it need not be alleged in the indictment,” but the criticism does not go to the question of homicide by poison. In State v. Wells, 61 Iowa, 629 (47 Am. Rep. 822, 17 N. W. 90), which was a trial for murder committed hy a prisoner in the penitentiary by administering chloroform to one of the guards of that institution, the Supreme Court of Iowa seems to have reached a different conclusion. Seevers, J., in rendering the decision, says: “We are unable to draw a distinction between a homicide which occurs during the perpetration of a robbery, and when the homicide is caused by the administration of poison. Both, under the statute, must be deemed murder.” In People v. Harris, 136 N. Y. 423 (33 N. E. 65), Gray, J., in speaking of the issues to be tried under an indictment charging murder by administering poison, says: “The two questions which, upon all the *159circumstances detailed in the evidence, the jury had to pass upon in coming to their verdict were, in the first order, whether the deceased came to her death by morphine poisoning, and, having determined that in the affirmative, then whether the defendant was guilty of the charge of having administered it to her with a deliberate intent to cause her death thereby.” And in this State it is provided by statute that in all cases of murder in the first degree, except in the commission or attempt to commit certain felonies therein enumerated, it is incumbent upon the state to allege in the indictment and prove at the trial that the killing was purposely done (Hill’s Code, § 1714); and, this fact having been established, proof that it was accomplished by poison shows such deliberation and premeditation as evince murder in the first degree: Code, § 1727.

4. An indictment for the crime of murder in the first degree necessarily involves all other grades of homicide which the evidence tends to establish. The state, in preferring its charge, may carve out and allege in the indictment any degree of crime that the grand jury may consider the defendant guilty of, but at the trial he may be found guilty of any crime the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit such crime: Hill’s Code, § 1383. The evidence introduced tended to show that the deceased died in a tetanic convulsion soon after the defendant administered to her what he claims was a powder composed of corn starch; that, an autopsy having been made, and Mrs. Ellsworth’s stomach removed, an analysis of its contents revealed the presence of strychnine; and that several physicians, as experts, in answer to a hypothetical question predicated upon her symptoms and the discovery of poison in her stomach, say the deceased died of strychnine poison. Here was evidence to *160warrant a finding that she died by this means, and, this fact having been established, the jury were compelled to ascertain whether the defendant administered the poison, and, if so, to find with what intent or under what circumstances it was given. In State v. Garrand, 5 Or. 216, it is held that if on a trial for murder there is no evidence of facts and circumstances such as would, under the law, reduce the crime charged to manslaughter, the judge may so inform the jury, and may charge them that they cannot consider the question of manslaughter. So too in State v. Whitney, 7 Or. 386, Kelly, C. J., says: “We do not undertake to say that when certain facts have been testified to, the court may not say to the jury that if they believe the testimony to be true, they should find the accused guilty of murder in the first degree.” In 1794 the rule was announced in Pennsjdvania that every unlawful killing was -presumed to be murder, unless the person accused could show such circumstances as would reduce it to a lower degree of homicide (Pennsylvania v. McFall, Add. 255); but in a later case it was held that, although malice was presumed till the want thereof was shown, yet an unlawful killing, though it may be presumed murder, will not be presumed murder in the first degree: Pennsylvania v. Lewis, Add. 279. In 1845, Wilde, J., in a dissenting opinion in Commonwealth v. York, 9 Metc. (Mass.) 93, criticised this doctrine, and maintained that in criminal cases the burden of proof is on the prosecution throughout to make out thewholecase. Since that time the reason assigned in this dissenting opinion is fast becoming the settled rule of law in this country, and seems to have been approved in State v. Whitney, 7 Or. 386, for it is there said: “The plea of not guilty was a continuous denial of every allegation in the indictment, and every statement of the witnesses who testified against him.” In the case at bar, the defendant not having admitted the killing, *161the presumption of his innocence controverted all evidence introduced by the state, and tended to disprove every grade of crime embraced in the indictment, and put in issue by the plea of not guilty; and, while no evidence was introduced tending to show that any strychnine was kept by the defendant or his wife, from which an inference might be drawn that in giving what he supposed to be corn starch he thereby carelessly administered a poison, yet he offered proof of his general reputation for peace and good order which tended to raise a doubt as to the intent with which the act was done, and aided the jury in ascertaining the probable degree of his guilt (Carroll v. State, 3 Humph. 315), from which, if it appeared to them that he had committed a crime., and there was reasonable doubt as to which of two degrees he was guilty, he could be convicted of the lower degree only (Hill’s Code, § 1359); and, as the mere proof of death by the administration of poison does not necessarily imply an intentional killing, and there being evidence introduced at the trial tending to reduce the grade of homicide, it follows that there was no error in giving the instruction of which the defendant complains. By reason of the court’s refusal to permit the witnesses Middleton and Cardwell to answer the question propounded to them, the judgment will be reversed, and the cause remanded for a new trial, and it is so ordered.

Reversed.

Case Details

Case Name: State v. Ellsworth

Court Name: Oregon Supreme Court

Date Published: Dec 21, 1896

Citations: 47 P. 199; 30 Or. 145; 1896 Ore. LEXIS 112

Court Abbreviation: Or.