State v. Leonard
3 Or. 157
Multnomah Cty. Cir. Ct., O.R.
1869
Check Treatment
Upton, J.

It is not satisfactorily shown that there is a reasonable expectation of procuring the attendance of the witness at another term. The residence of the witness is not stated, nor is the nature of the business which may bring him to this place disclosed. Taking the affidavit to be true, if he then actually intended to come to this place, because of business relations with the defendant, there is no certainty that he will now have the same inducements to come. At that time the defendant had twenty-eight ounces of gold dust, if his affidavit is true; now he has no certainty of having anything to embark in that business. There is no certainty that the witness, if he should come, would be willing to be detained here until the next term, or that he would *159let Ills presence be known, and there is not much difficulty-in his avoiding risk of such detention, if he chooses to do so. Where the witness has no fixed residence, a clear showing should be made of the circumstances tending to prove the probability of obtaining his evidence.

The case being brought on for trial.

Philip Saunders, City Marshal, one of the witnesses, on behalf of the State, testified: “After hearing of the affair, about nine a. m., I went aboard the Cascades boat at Coliches’ w'harf. I remained on the gangway until the passengers got off, and then went aft. A person on board pointed to a room where the boat hands sleep, and on entering the room I found the defendant in that room, lying on a bunk. I searched him and found this purse on him. I asked the defendant why he took it. He said he could not say what did possess him to take it. That he was sorry he took it. That Morris was a kind of loose man in his business. That Morris could spare it and not feel it. That he had never done such a thing before.”

On Gross-examination the witness said: “I told him it would be better for him to make a clean breast of it, and throw himself on the mercy of the court.”*

The defendant’s counsel requested the court to charge the jury that it was their duty to disregard all evidence of admissions made by the defendant to Marshal Saunders. And the judge refused to give the instruction; the defendant’s counsel having seen proper not to question the witness as to whether the admissions were made before or after the advice was given.

The defendant was convicted.

Marshal Saunders was not questioned as to whether any, or liow much, of the confession was made after the witness gave the advice.