78 P. 328 | Or. | 1904
delivered the opinion.
The defendant.is charged.by the information of the district attorney with the crime of murder in the first degree, and was convicted of murder in the second. At the trial, Mrs. Pauline Leasia being called as a witness for the State, defendant objected that she was incapacitated to testify against him without his consent, because the marital relations formerly existing between them had not been finally severed at the time the events occurred about which it was desired that she should bear witness, and, the objection being overruled, error is assigned.
1. The crime with which the defendant is accused was committed on May 24,1903. Preceding that, on the 18th day of the same month, Mrs. Leasia procured a decree of
2. This leaves but one other question. Mrs. Leasia testified that immediately after the homicide the defendant compelled her to accompany him into the woods ; that while there defendant took from his person a letter in his own handwriting, written prior to the homicide, and addressed to his people, which he read to her, she at the same time looking upon the writing and following him as he read; that after reading the letter he hid it under a log or stump near by, and they shortly left the place, traveling in a circuitous and obscure way until they came to a barn, where the defendant was apprehended by an officer. She further testified that she had since made diligent search for the place where the letter was hidden, and for the letter itself, but had been unable to find either. Thereupon she was permitted to give evidence of the contents of the letter, and error is assigned in that relation. The objection is directed not so much to the quantum of evidence given to show the loss of- the letter preliminary to allowing parol evidence of its contents as to the sufficiency of the testimony to establish the fact of the existence of such a writing at any time, it being insisted that the proof must be clear and convincing in that' regard, or else it cannot be considered. The action here is not upon the instrument or writing itself as the basis of the right of recovery, as was the case in Gillis v. Wilmington, etc., R. Co., 108 N. C. 441 (13 S. E. 11, 1019), cited by counsel, but the latter is sought to be established as an incident in the proofs of the State to show the guilt of the accused through his admissions. If the letter in fact existed, it contained admissions of the defendant as to his preconceived intention to take the life of the deceased. If he had made the statements which it is said to contain to the witness orally,
Finding no error in the record, the judgment of the circuit court will be affirmed. Affirmed.