*1 28; rеhearing 17; July denied Argued June affirmed 15,1931 September STATE v. KINGSLEY 113) (2d) (2d)
(2 P. 3, 3 P. *2 Enright (H. Kelly, T. E. both of J. and E. Medford brief), appellant. K. on the Hanna, Medford, Godding, Attorney, George District of Medford (George Deputy Attorney, Neil District of Med- son, brief), ford, for the State. gather fol- record, From J.
BROWN, lowing undisputed facts: the time Prescott was slain he was a traffic offi-
At city engaged performance cer Ashland, duty taking custody. of his the defendant into testimony beyond peradventure shows defend- deadly fugitive justice, ant armed with weapon, speeding through and that he was southward rapidly that when mov- state; the officer saw the ing passing through gave car he chase and Ashland finally stopped, overtook the who when dеfendant, and, necessary informed the officer that it take gun, him resisted, back his station, drew by firing shot the officer dead three shots into body, killing instantly. him almost thereafter, Soon, the defendant abandoned his car and He was arrested. *3 voluntary made what the record shows to be free and by writing signed confession that was reduced to freely he him, in which admitted that he slew the offi- by firing body. cer three shots into his This written incompetent confession contained much matter, objected counsel for defendant in the first instance reception its as but later evidence, withdrew their objection and said: please, you if like, “We would Your Honor to have objec-
instruct the that we have our withdrawn (the confession), tion to it written and that we volun- tarily agree may jury.” be admitted to the the Furthermore, when defendant, a witness in his history own related behalf, the sordid of his as set life, down in his written from confession, childhood to the time of the commission of the in crime the case at issue. appeal mercy, painted In his for he days unhappy surroundings, with childhood which, probability, shaping all had a share in the career young this unfortunate man.
308 alleged us for review
The first
error before
the denial
court of the defendant’s
relates to
change
motion
of venue.
defendant omitted
required by
allege,
1-404,
as
subdivision 5
section
Oregon
that his motion was hot made for
Code
purpose
delay.
assuming
But,
that the motion
granting
requirement,
this
of such
does meet
ordinarily
motion
rests in the sound discretion of the
Pomeroy,
(46
797);
16
P.
v.
v.
State
court; State
30 Or.
Armstrong,
(70
824);
Humphreys,
Dr. F. G. whose surgeon physician defense, were admitted body killing, testified, after the and who examined among things, as taken other direction entering body. He balls after testified leaden in the another arm, one of struck the officer the bullets producing оf his back terrific hemor in the middle large rhage severing blood vessels within the ab cavity, other and that the entered back dominal lodged right eye. Relating beneath the the neck and testimony, admissibility note the follow (3d Ed.), ing § on Homicide 607: Wharton *4 body person “The condition of the the killed * ** the reference to number and character of the with competent cogent is inflicted, and sometimes wounds killing.” prosecution in a for the evidence nothing tending in to There is the record show surgeon any was testified matter that incom- petent, testimony and his admissible under the was indictment. admitting
Nor error in committed the testi mony police city chief of Ashland to per effect that dеceased officer inwas formance of his duties at the time he was slain. says:
In his
brief
defendant
charge
“The indictment does not
the defendant
resisting
having
either
or
an officer
with
arrest
shot
discharge
duty.”
such
when
officer
in
of his
necessary
It is not
that the
in a
indictment
homi
allege
cide case
that the deceased was an
officer,
resisting
defendant was
arrest.
State v.
See
1016),
in event, the worn may ain in evidence the accused be introduced any may prosecution killing, it for the whenever determining any disputed way explaining or aid in question on Homi- in connection Wharton therewith. (3d Ed.), § cide 610. assigns per error of the court
The defendant Attorney open mitting Deputy in his Neilson, District ing to refer state, on behalf being rattlesnake”, a as as defendant “as cold-blooded fur murderer”; to him a call “cold-blooded attempt explain allowing him in an to ther, state, personal foregoing language: have a use “I language against not the hatred this man.” This is usually par quasi-judicial officer, characterizes ticularly life. is trial for his in a case where man impair, neither nor control, Personal hatred should justice. do However, affect the administration prejudiсed as to so not think these utterances require a of this case. reversal sending alleged that the court erred in
It is
made
de
room the written confession
read
the trial
This entire statement was
fendant.
jury,
opposing
it
counsel,
commented
only
into
not
admitted
the record
evidence
express
objection
but
consent
with
without
fully
defendant
testified to the
Further, defendant.
By rea
in his written confession.
matter as set down
facts, error was not
In this
of these
committed.
son
ease
v.
we direct attention
of State
connection,
584),
held
where this court
Hatcher,
A trial on the сrime the commission of gross however murder, crime, his is entitled to a presentation fair full, it his case all courts where proper argu- is As considered. constitutes what prosecuting ment of a counsel case Kerr, of homicide, in his valued work on Homicide, the Law of thus ex- presses at view, section 305: province “The state counsel is to jury pertaining to the the case and facts thereto, up and to sum before them the where evidence; prosecuting go proof beyond the relating the dice in the minds of the counsel this, exceed hypothesis upon ease, which and the prosecution preju- is in order to create based, against defendant, any attempt and the court makes no ef- counteract may fect which such action the defendant does have, impartial guaranteed not trial, receive an which is provision.” him constitutional Attorneys In Thornton at section Law, at subject of the author treats the of Trials” “Conduct prosecutor as follows: prosecuting quasi-judicial attorney “The is offi- rep- and he and those him associated should cer, with public justice exclusively, resent as and stand indifferent any private in- interest; between accused and duty is it has said that as much the deed, been prosecuting attorneys not accused is to see that the rights, any statutory deprived constitutional or prosecute it is to him for the crime with which he charged. represents state, The district only seeks the state does not seek victims—it and equal justice; prosecutor impartial should press any evi- deductions from the not legitimate. strictly ex- When he that are not dence ceeds by ap- impar- them influence limit, and’ seeks to longer pealing prejudices, no an he is to their partisan.” tial but a officer, *7 on Attor- matter, same Weeks relation to the With says: neys (2d Ed.), 282a, at section at Law prosecuting attorney a sworn minister is “The justice, are duty it see that the innocent is to whose brought guilty protected, are as as well that the be- punishment, must stand indifferent who any private interest.” tween the accused Spelling, Appellate Procedure, 1 In New Trial look with that “courts 92, the author states at section * * * argu- assertions counsel disfavor but facts, issue, material trial of ment at the Thompson on is To like effect 1 not evidence.” Ed.), §968. section 966 of (2d also, See, Trials “A and for Reversals,” “Instances same work for Prejudicial Catalogue see section 976 Statements” thereof. prosecuting conceding, must, that the as we
Now beyond representative fair went limits of debate case does closing state, such action warrant reversal of this cause? In the writer, view determination of this question of the case made properly depends upon strength This doctrine is Mr. Kerr held prosecution. in his work on at Homicide, section and it is sup- a multitude of authorities ported cited in note thereof. That section reads:
“The criterion as to the reversal for erroneous remarks of counsel is prosecuting always question whether such remarks statements had the probably effect of working prejudice defendant with the jury.” the same we take
Concerning subject, the following on Hyatt Trials, section 1515: “The court may disregard argument and improper affirm a just on A judgment appeal. verdict amply sustained evidence by unobjectionable should not be reversed becausе of an remark of counsel in improper argument, however objectionable. There is no pre- such sumption improper of counsel language entered verdict, into the which was sustained amply by such evidence. It cannot said be that any prejudi- cial effect flowed from improper argument when the ’’ verdict obviously supported by evidence. at section
Continuing, 1516, the author writes: “Actual is essential to authorize prejudice reversal because of As stated in improper argument. the pre- verdict ceding section, is not disturbed righteous ** *” this ground. *8 1 For further see Trials authority, Thompson on (2d 987, 988, Michie, and Ed.), Homicide, 1795. p. §§ Were the instant case built doubtful cir- оne upon cumstances, of supported by testimony ques- witnesses, tionable our conclusion must, necessity, strong degree be a from the But, different one. proof the writer does not adduced, believe that by journey out record of the district prejudiced jury the minds this case. The clearly .record indicates that the unfortunate defend- attorney’s prosecuting convicted, ant was not beyond but the limits of the record excursion proofs strong by the adduced state established guilt. right his had a believe the evi- evidently dence, believe, did defendant, premeditated an with deliberate and killed malice, engaged performance in the officer who was of his duty. cоnfession, From the defendant’s corroborated maliciously deliberately by ample he evidence, kill. ldll, shot to and did it error for the
It has been asserted that to hold prosecutor the defense out of the record follow hamper closing argument the future will presentation prosecutor in his cause. To Every tried the facts we answer: case should be prosecutor not and the careful will record; within the depart of his duties, In administration therefrom. justified violating important is not officer tMs practice thereof rules of because of breach representatives. His case is made defendant or his applicable thereto; of reсord and the law the evidence justice require con- does not vindication beyond template the limitations an excursion record. fitting written, have conclusion to what we
As O’Kelly Territory, v. to the case Or. refer court, years ago nearly eighty in tMs decided It masterly opinion by Mr. Justice Williams. Chief defense, murder, and in the technicalities case *9 opinion, great jurist arose. In the course of the prevent made to and crime, declared that laws were duty their enforcement the courts was plain painful. Continuing, itas was he said: “Time when the unfortunate accused was dragged counsel, to trial without or a fair chance for prevailed, Then self-defense. other rules and courts justice; tried to but, make the means of technicalities prisoners privi- come courts when before our with more leges presumptions they in their favor than other- have, wise could these rules olden cease the rea- with they sons which rested, criminals cannot be refuge judgments allowed take of our ’’ antiquated practice. liberal an laws in the cobwebs This case should be affirmed. It is ordered. so Bean, C. Belt J., Campbell, JJ., concur. Rand, J., dissents. (specially concurring). J.
ROSSMAN, I concur in foregoing except process reasoning all of the employed my reaching associates in their conclu- sion that no reversible error was committed when the permitted attorney court the district to advance chal- lenged argument. agree I with the result reached majority, process reasoning but do so a different which does not subscribe to the doctrine that when the attorney departs for the defendant from the record the attorney stay must rather, district I am it; within opinion going act of the defendant’s in objection record, outside over the of the district attorney, is an invitation for the other do likewise. A brief reference to the incidents which occurred dur- argument ing necessary. is deemed While the court endeavoring to define the bounds within which the must defendant’s confined, counsel, be presence jury, court, addressed thus: light: please, Your I view this “If Honor give place legislature fit to has seen *10 power Now, of life and death. we have their hands put upon and court here we have ourselves come into jury mercy just the same as if we had plea guilty Honor, and feel to Your entered mercy upon having ourselves that thrown right jury the full to make here, we should have plea to Your Honor.” To same we would make which replied: presiding judge I “As indicated before, I mercy’ ‘plea you for until want to the term don’t use replied: counsel “That it.” Defendant’s use ’’ plea going I make. am to judge, attached The trial to certificate Exceptions, stаtes that defendant’s counsel Bill of following subject-matter argument employed in his jury: to thereupon proceeded to make “Defendant’s counsel jury mercy plea con-
a siderations for various based appearing case, in the and the evidence plea referred in the course of defendant’s counsel actually guilty persons cases where to various degree had life sentences murder in the first received argued inferentially jury that the was entitled and and that de- consideration, take such into matters not receive drastic fendant in this case should more punishment than in other cases the de- others where arraigned equally guilty, more also fendant was society system permitting for the social conditions whereby years persons exist of tender were allowed tendency to live under conditions which have force imprison- argued life crime, them into a adequate provident an ment for life would be punishment particular and that the case, in this prerogative recommending life should exercise its imprisonment.”
317 attorney The record indicates that the district ob- jected to the above and that he did not indulge challenged by in the remarks the defendant spoken, until after the above had words been and the court had statute, ruled our which vests dis- cretionary power in the to recommend life im- prisonment, degree proved, even when first murder is proper plea mercy. rendered the defendant’s attorney To hold that when the for the defendant departs attorney may record the district reply make no tois confront him with a serious handi cap. regard The authorities the act of defendant’s attorney an invitation the district reply: Thompson (2d Ed.) § on Trials Pierson v. 987; App. (17 468); Barczynski State, 21 Tex W. v. S. 1026); State, Wis. N. W. and note *11 46 L. R. A. at 641 670. ruling the never
Moreover,
defendant
obtained
upon
propriety
from the circuit court
the
the chal
of
lenged argument.
excepted,
His counsel
it is true;
merely excepting
but
was not sufficient
obtain a
by
court
review
this
for it well
that it
is
established
duty
opposing
preserve
counsel,
is the
of
in order to
alleged
argument
misconduct in
for the attention of
ruling
to obtain a
from the
court,
court,
circuit
ruling
unsatisfactory,
then,
if the
is
the
secure
exception.
ruling
exception:
The
is as essential as the
(171
Spokane
Ry.
v.
P. &
P.
Co.,
Watts
S.
378, C. p. § sel, 438, 36. exception adequate,
But if the be deemed and if the argument regarded improper, yet be it seems should as challenged me that the comment concerned facts
generally people, including jurors, known all the Everyone nonprejudicial. and therefore knows that escape penitentiary from men from our time to time, prisoners rarely and that for life committed serve their full sentences. Four times in interval present people November, time of this 1914, subject capital punish- of state have voted In ment. those four elections same facts were upon by challenged attorney in his seized the district argument employed generally the voters were of determining pending the merits of the bills state May group voters, instance, before them. For punishment, capital inserted in the 1920, who favored pamphlet, published by Secretary of State, voters’ pursuant following all voters, and mailed to law, opposition life to the effectiveness of imprisonment: treatment, “He sure of humane provision physical and has him for his needs bеfore escape, pardon, always possibility as of as well * *” * capi- prohibiting initiative bill governor’s power punishment expressly limited the tal guilty parole pardon homicide, those found subject general thereby brought a forth pardoning power. comment the district mentioned The item years average term constituted six and one-half prisoners not vital fact. The life served jurors already point persuasive was that which subject pardon prisoner that a life knew: parole. *12 recently had occasion to con- court
The Alabama
problem
now confronts
almost the identical
which
sider
robbery,
insanity.
plead
Anderson, accused of
us: One
spoke
attorney
addressing
in
The district
you
in two
Tusсaloosa,
defendant to
“If
send the
thus:
years
Upon
objection
or three
he
be out.”
will
judge
the trial
counsel,
defendant’s
said: “Of
gentlemen
jury, argument
course,
of the
of counsel in
regard to what will
done
a man if
be
with
he is com-
weight
you
mitted to
should
Tuscaloosa
have no
with
bearing
your
presumed
is
verdict, because it
to be
would
authorities there
act in accordance with
requires
regard
persons,
the law
in
what
to insane
and,
argument
in that
course,
record should not be
by you,
improper.”
considered
because
is
The de-
having
argument
fendant
convicted,
been
of the
attorney
assigned
holding
In
district
to error.
Supreme
otherwise, the
Court of Alabamа Anderson
171),
v. State,
trial, were by prompt or, if not such as was not eradicated so, explicit counsel, and and action the court, admonition to given jury.”
instructions will It be observed that in the Alabama eas^ nullifying remarks, trial court’s instead of the efféct attorney’s strengthened comment, it. For I the above concur in the result reached reasons by majority. (Dissenting.) agrees
KELLY, J. writer with majority holding court in that error was permitting the district committed make average in this state the statement imprisonment length under a sentence life years half, and a but is unable to concur with but six holding such error not influence the did them *13 question jury in their consideration of whether penalty they that the not recommend should or should Obviously* imprisonment. this statement should life be attorney, making every which district this court holds to been but have member, one, tendency strong had to induce to error, a imprisonment. of life withhold recommendation merely of this error is not confined effect guilt. gruesomely question It defendant’s bears upon question penalty, which, under the latest by the must be determined mandate, constitutional jury: of Ore- I, trial Article Constitution Seсtion 37, Oregon gon, p. reason, For 87, Code 1930. strong point hold that are not in which authorities guilt renders harmless the error which evidence of otherwise would be reversible. deputy district
The statement of the personal for the defend- that he had hatred the effect court, the trial should have rebuked ant been disregard it. instructed to should have been opinion of the court. from the The writer dissents rehearing September denied Petition Rehearing por Petition On 113) (2d) petition rehearing. filed a for a The defendant has rehearing, In the for a asserted: brief guilt, clearly admitted his defendant “The any determined save other issue be there was never hanging.” imprisonment the issue of life parte an ex confes- defendant, It is true that police Prescott, a that he killed Sam admitted sion, deputy city sheriff of of Ashland and officer of the January shooting county, by him to death on Jackson attempting 24, 1931, at a time when the officer was arrest him. It must be in mind, borne however, that, plead charge when called of murder plea contained in the indictment, defendant entered *14 guilty. plea of not Under our such a Code, constitutes every allegation a denial of material in the indictment. Oregon § Code 1930, 13-844. So far as shown during at
record, no time the trial did the defendant plea guilty. withdraw his formal of not In this connee- proper nection it is to note that thе trial court certified part part record and case, of the tran- script exception, following and bill of fact: ‘‘ argument by SIXTH: In the course of the defend- jury, Kelly ant’s counsel to the Mr. E. E. stated, substance: “ say you frankly ‘I plea will that we will enter a guilty killing premeditation this officer without you why you and we will submit to the reasons should clemency, you extend give him him some and ask giving testimony. consideration in the of his Of course, ” any legal premeditation.’ we claim there wasn’t provides except corpo- Our statute that, in case of a plea guilty person. ration, must be entered in Oregon § plainly Code 13-842. it Moreover, apparent pleading that counsel had no intention of guilty degree, to murder in the first because he ex- pressly alleged plea charge excluded from his premeditation contained the indictment.
Upon plea guilty the defendant’s of not an issue of fact and arose; before a conviction could be necessary it had, was for the state to establish each allegation material contained in the indictment jury beyond satisfaction of the trial a reasonable doubt. premedi
The record herein tends to establish part tated on malice of the defendant. We note the impor- testimony L. an adduced Mrs. F. Batchelor, eyewitness, early tant the morn- that, who testified ing that, and homicide, Ashland, she went to station her arrival at Oil service Standard map. stopped there, and asked for a road Her she testimony : continues coming along,
“I cars saw these two cars the two along, coming speeding I to hold fast, were and had my you boy crossing back as do when a street and see coming, stop just I had and first started to cars stopped, guess, I I and this car let out siren and wheels, knew it kind over to the of turned and then knew curb, an officer of drew I went right something up course; on the off in front curb, then wrong the two front * * they * [*] drove *. It *. thought I fire, I heard a back and then next I saw struggling, happened fast, all so was the forms coming and then next I was this officer out saw running and this and this bаckwards, backwards, of the car other officer was and *15 right gun pointed him, man on had his right facing gun, going backwards and man, and turn then—he shot, he [*] * got he turned his [*] was gun up something facing as if he started to gun toward went down. Then he went like car that, run and and the first toward diagonally to standing and the officer across from he was where something ‘My said, effect, don’t!’ to-that God, then came and he fell and then the the next shot down already lying down, next shot came when he was * * * pavement. shooting? A. the man who did the “Q. Who was (indicating defendant).” sitting there man down original opinion defendant, stated in our As we testifying in his related the sordid behalf, when own coming history to the time of life; and, down his story: here out his homicide, set commission of driving very sleepy all that after- “I tired and was thing night, car I noticed a the first noon and when n * ** alongside gave I up the siren. drove pulled road and this over to the side of the officer came my glass back. I down side of the on the door rolled ’ you a license? ‘No, and he said: ‘Have driver’s I said, you got papers I haven’t.’ ‘Have on the car?’ said, He says, I He him I I I left them back in Portland.’ ‘No, haven’t;
says, you doing in were I told ‘What Portland?’ days going in town a few and was into was Cali- says, report fornia. that he ‘I car ‘Well,’ have a of a stolen description.’ say, He answers ‘Slide over.’ up So I slid me. over woke fellow was with got I think we into the car and backed it him one crоwded over to side too. He up and started ahead and fumbling around his I car, and all this time was around my pocket, trying get gun. in ing out this He was back- up pretty kept watching suppose close and he Ime, wondering doing, anything, Iwhat was but I said never so after we went few feet —I don’t know how far say was—he said me—he didn’t him—now used: I word. said to just exactly I am not sure of the I words yourself. you ‘Now, behave Watch what are doing. just I don’t Listen want shoot. to reason.’ I object My wanted him to listen to reason. tie up, put park the officer him in the back of the car, place highway good him out some on the where I had a my get-away, wrestling chance to make but he started fighting, ‘Why with me, and and I said tо this fellow: you help my don’t me?’ all And this time arm was up trying keep gun away in the air and I reaching gun from the officer, and he was also, his my wrestling and he hurt left hand on account of the guess. wound, which made me I sore, Well, kind that time we went out the curb, and he hadn’t anything got said that I know of at that time. He out gun turned car, around and drew and I shot Going the man in the left shoulder. aon little farther ** * *16 away. very he started to I run excited my at time, time I life, first ever shot a man in personally gun the first time I ever shot a at all, * * * I watched him a second. And he had gone thirty again feet, about and turned and had his gun quick I out, and so fired twice succession. I saw * * got him fall and turned around and in the car rehearing principally The defendant seeks a concluding argument, that, for the in his reason the dis ‘‘ ’’ attorney suggested, trict in substance, that the aver age length imprisonment of under a sentence for life years. is but six and one-half This statement was not upon any any record, based evidence of nor is there thing tending any that it record to show had effect jury. statutory jurisdiction judg- in this
It
law
appealed
only
or
ments
orders
can be reviewed
questions
appearing upon
transcript
as to
law
13-1224),
(Oregon
§
“after hear-
that,
1930,
Code
judgment,
ing
appeal
give
the court must
without
questions
regard
were in the
decision
which
below,
errors,
of the court
or to technical
de-
discretion
exceptions
аffect the substantial
which do not
fects,
’’ Oregon
§
parties.
rights
1930,
13-1225.
Code
provision
has
been invoked.
of the Code
often
This
615),
Pender,
v.
be reversed because in his below, court the case objectionable refer- made record and out went
325 of the for the defendant. The enees to one witnesses in failed to mention this his assignments defendant The as of error. remarks are follows: “ the man who owes his Craddock, job ‘There and his to but what this man does position Logan, Craddock say?’ objected for the defendant to said
“Counsel remark and asked the court to instruct to it. disregard The attorney district then said: * “* after But seems that this man Crad- dock had herе the stand been had Saturday, so to as here, testified facts he called them glibly he went back to Portland with and in company Logan another of company Logan’s with clients that he just out They went to do little kept penitentiary. ’ experimenting. objected “This also was to. Some of the remarks of the district were improper.
“In the district cases, have attorneys no that other counsel privileges have not. It is their within duty to, the facts testified and not keep permit their zeal to beyond them their limits carry counsel, and it is the of trial courts duty all keep counsel within limits. proper Trial courts are armed with to do ample power so. When counsel step bеyond the facts of the case in their trial courts arguments, should and, them and stop compel them to desist, if they state facts any evidence, not the court should instruct them. disregard * * “* We think the remarks made by counsel objected to were but improper, they were not no prejudicial defendant, and that we have ’’ right reverse judgment account thereof. judgment lower court that case was affirmed. Garrett, v.
To like effect,
State
see
Or.
363).
cases,
For further
see notes
the indiscretion thus committed new by сounsel, unless quite appears plainly influenced that the verdict was by remarks.” such eloquent plea of the defendant an
The brief contains mercy. for counsel for defendant have failed However, authority support single text in additional cite plea. indicted, tried, defendant has been of that in accordance and of crime of murder convicted again read the record of his ar- with law. We have raignment, thereof, a result trial, and sentence as into court that the verdict returned we are convinced analysis by jury an and con- reached from was strong by proof the state made sideration of jury by knew from the defendant. The corroborated purpose Prescott armed for the record that was by executing he shot the defend- and that was law, duty, pursuance he undertook of his when, ant place him the record shows Furthermore, under arrest. teeth armed to the with two that the defendant was defying express purpose deadly weapons representatives. armed for the He was and its law purpose carrying He conduct. shot on his unlawful clutches of the law. There himself from the to free purposely tending he establish that evidence premeditated shot and killed malice with deliberate might escape pun- representative he the law that jury plea The trial ishment. heard thе earnest mercy, despite defendant’s counsel for and, that fact, guilty returned verdict of without recommendation. any mercy Nor there in the heart of the defendant at the time the officer was shot down him. There is testimony following of record the first that, shot fired “My the defendant, the officer exclaimed, Grod, don’t!” The answer was a second shot that felled the pavement, closely by officer to the followed a third body which was fired defendant into the fallen dying testimony the dead or man. This is the atrocious crime which the verdict of the based. are not
We convinced that the record trial of this case indicates the verdict of the was the prejudicial argument result of a the district attor- *19 ney. petition rehearing will be denied.