162 P. 838 | Or. | 1917
Lead Opinion
delivered the opinion of the ■court.
The state gave evidence to the effect that Matthews Taised the horses and turned them out on the range in "the spring of 1914; that he saw them at intervals between then and August of the following year; that on
“Why, Mr. McLennan evidenced a desire, of course, mentioned the case, and evidenced a desire to get it settled out of court if possible on account of its coming at his very busy time of the year, and there was nothing definite stated one way or the other. * * This-indictment having been brought up against Mr. Mc-Lennan, he wished to get it settled and over with if possible, and that is the reason it was mentioned tome. Of course, there was nothing definite said about it, except he wishes a settlement, if possible, out of court.”
The defendants’ counsel moved to strike out this-testimony. The court said:
“I will sustain the motion and strike that out. The-jury need not consider that.”
After some further parley between counsel and the-court the judge then said:
“I will withdraw that from the jury; they need not consider it.”
Among other things, the court instructed the jury thus:
“I charge you that, if you find from the evidence in this case beyond a reasonable doubt that the defendants killed the horses in question for the purpose of concealment, you may consider the same as tending to: show the guilt of the defendants of the charge in the indictment”
- — to which instruction the defendants excepted. Some-of the witnesses who had from time to time butchered cattle, sheep and hogs were permitted to give their
Adverting to the discussion of this point by Mr. Justice McBride in State v. Rader, 62 Or. 37, 40 (124 Pac. 195, 196), it is at least doubtful whether the fault was cured by striking out the evidence now under discussion. It is there said:
“While in some cases an express instruction to the jury to disregard testimony injuriously admitted is properly held to cure the error, yet the courts are cautious in the application of this rule. It is not an easy task to unring a bell, nor to remove from the mind an impression once firmly imprinted there, and the withdrawal of the testimony should be so emphatic as to leave no doubt in the mind of the juror as to the unequivocal repudiation by the court of the erroneously admitted matter, and even then, in a case where the testimony is evenly balanced or contradictory, courts hesitate to sanction such withdrawal, though it seems absolutely necessary to permit this course in some instances.”
The case is not like that of State v. Aiken, 41 Or. 294 (69 Pac. 683). There at the trial of one defendant the court admitted the statements of another jointly indicted, but not on trial, made after the homicide had been committed with which they were jointly charged. Without specifying the particular statement so as to directly call the attention of the jury to it, the court in the general charge said, in substance, that the jury must not consider any remark made by one of the defendants in the absence of the other after the homicide had been committed. In an opinion by Mr.
“(1) If several similar criminal acts are so connected by the prisoner, with respect to time and locality, that they form an inseparable transaction, and a complete account of the offense charged in the indictment cannot be given without detailing the particulars of such other acts, evidence of any or all of the component parts thereof is admissible to prove the whole general plan. * * (3) If the facts and circumstances.*629 tend to show that the prisoner committed an independent dissimilar crime, to enable him to perpetrate or to conceal an offense, snch evidence is admissible against him upon an indictment charging the auxiliary crime, when the intent to perpetrate or conceal such offense furnished the motive for committing the crime for which he is put upon trial.”
Within the meaning of the doctrine thus announced there was nothing in the testimony under discussion to take it from the jury. If the defendant stole the horses, it would be natural within human experience that he would change the brand upon them by putting on his own, or that, when detection appeared to be imminent, he would endeavor to hide the indicia of his crime by slaughtering the animals and disfiguring their bodies. All those things might be part of the general plan of the defendant. At least, the jury was entitled to consider them under proper instructions to that end.
“When the evidence leaves the case in such a situation that the jury will be required to speculate and guess which of several possible causes occasioned the injury, that part of the case should be withdrawn from their consideration.”
Here the court diverted the attention of the jury from other things to which the killing of the animals was properly referable, and pointedly told them that the circumstance of the killing, if proved, was to be considered as tending to show the guilt of the defendants of the charge of larceny. They were entitled to classify it as tending to show an independent crime disconnected from any larcenous intent which would be to the advantage of the defendant on his trial for theft. They were directed away from that favorable
In Shew v. New Tear Gold Mines Co., 31 Mont. 138 (77 Pac. 515), the court had under consideration a charge of negligence whereby the plaintiff was injured. The rule is thus stated in the opinion:
“The burden of proof is upon plaintiff, and is not satisfied if the conclusion to be reached from the testimony offered is merely a matter of conjecture. If such conclusion be equally consonant with the truth of the allegations, and with some other theory or theories inconsistent therewith, it becomes a mere conjecture, and the rule of the burden of proof is not satisfied. * * If the conclusion to be reached from the testimony is equally consonant with some theory inconsistent with either of the issues to be proven, it does not tend to prove them, within the meaning of the rule above announced. The use of the word ‘tend’ does not contemplate conjecture. It contemplates that the testimony has a tendency to prove the allegations of the complaint, and not some other theory inconsistent therewith.”
It is only where the testimony points to a definite conclusion and to no other that the court is authorized to say to the jury that it “tends” to prove anything. If the conclusion to be drawn from the circumstance in question is equivocal, it is for the jury alone to say what influence and what direction shall be accorded to the evidence on the point. What is here written on this point is not in conflict with State v. Brown, 28 Or. 147, 163 (41 Pac. 1042); Coos Bay R. R. Co. v. Siglin, 34 Or. 80, 84 (53 Pac. 504), and Smitson v. Southern Pacific Co., 37 Or. 74, 104 (60 Pac. 907), where it was decided, in substance, that under proper circumstances the court may say to the jury that there is testimony “tending to prove” certain things. In those cases the evidence, if believed, had no double
It is not deemed necessary to discuss whether more is shown than that the defendants merely had opportunity to hill the horses nor to determine whether the inhibition against founding a presumption upon an inference applied to the case in hand. Suffice it to say .that, if it was legally proved that the defendants hilled the horses, the jurors would be authorized to consider that fact in connection with other circumstances for what they might deem it to be worth in deciding upon the guilt or innocence of the accused.
Reversed.
Dissenting Opinion
delivered the following dissenting opinion:
I am unable to concur in that part of the opinion which sanctions the ruling of the trial court in holding that the evidence relating to the so-called compromise was inadmissible, and directing the jury not to consider the same. The defendant McLennan was indicted for a felony, the larceny of horses. The witness Bates Shattuck, a merchant, in answer to the question, “What was the conversation between you and Mr. McLennan about this case?” said:
“Why, Mr. McLennan evidenced a desire, of course, mentioned the case, and evidenced a desire to get it settled out of court if possible on account of its coming at his very busy time of the year, and there was nothing definite stated one way or the other.”
Upon not being heard by all the jurors and requested to again tell the jury, the witness said:
-“This indictment having been brought up against Mr. McLennan, he wished to get it settled and over with if possible, and that is the reason it was mentioned to me. Of course, there was nothing definite said about it, except he wished a settlement if possible out of court.
“Q. He wanted you to approach Mr. Matthews about a settlement?
“A. I was a friend of both parties, and I did that.
“Q. It was by reason of this conversation you had with him you approached Mr. Matthews to settle the case?
“A. Yes, sir.”
‘ ‘ The law of evidence in civil actions is also the law of evidence in criminal actions and proceedings, except as otherwise specially provided in this Code.”
But it is otherwise distinctly provided in relation to compromising a felony. Section 1460, L. O. L., enacts:
“A person may be indicted for having, with the knowledge of the commission of a crime, taken money or property of another, or a gratuity' or a reward, or an engagement or promise therefor, upon an agreement or understanding, express or implied, to compound or conceal the crime, or to abstain from a prosecution therefor, or to withhold any evidence thereof, though the person guilty of the original crime has not been indicted or tried.”
The compounding or concealing of a crime is also punishable under Section 2040, L. O. L. Under our statute (Sections 1696 to 1698) only the settlement of a misdemeanor may be made between the parties themselves with the sanction of the court. Section 1699 reads thus:
“No crime can be compromised, nor can any proceeding for the prosecution or punishment thereof be stayed upon a compromise, except as provided in this chapter.”
In his work on Criminal Evidence (Section 117) Mr. Underhill says that:
*635 “The rule excluding compromises in civil suits does not apply to criminal proceedings.”
See, also, State v. Soper, 16 Me. 293, 295 (33 Am. Dec. 665), where Mr. Justice Emery said:
“We are not aware that the rule of excluding offers of compromise from being heard in evidence applies to criminal cases. They are not to be compounded. It is not under a searching investigation of acts of larceny, that it is intended a man may buy his peace.”
And State v. De Berry, 92 N. C. 800, the syllabus of which reads thus:
“Where the prisoner, being in jail on a criminal charge, told a party to see the prosecutor and find out if he would consent that the defendant receive 39 lashes and be discharged, held, that such message is relevant and admissible in evidence.”
See 8 R. C. L., § 189.
The language of the defendant imports a different wish than a desire to have the case tried in.a lawful manner. For the reason that he desired to “get the ease settled out of court” he mentioned the matter to Mr. Shattuck. The evidence tended to show an unlawful attempt to compromise or arrange for a settlement of a felony, in order to stifle prosecution, which is inhibited by the statute, and was relevant to show a consciousness of guilt: 12 Cyc. 398. The ruling of the trial court that the jury should not consider the evidence of Shattuck quoted above was favorable to the defendant.
In regard to the portion of the charge to the jury as follows: “I charge you that, if you find from the evidence in this case beyond a reasonable doubt that the defendants killed the horses in question for the purpose of concealment, you may consider the same as tending to show the guilt of the defendants of the
Therefore the question of the purpose of the killing of the horses was left to the determination of the jury. If the killing was done by defendant for the purpose of concealment, it is difficult to conceive how the matter of wanton injury to animals in violation of Section 1969, L. O. L., which, like the crime charged in the indictment, may be punished as a felony, would figure in the case. The difference between larceny by altering a mark or brand upon horses under Section 1954, L. 0. L., and larceny of such animals by stealing under Section 1950, L. O. L., is so slight that a defendant would receive but little comfort in claiming any distinction in that respect under the evidence in this case. Nor would defendant be prejudiced in any way by the trial court’s failure to consider the crime of larceny by altering brands. Indeed, the minimum penalty for the latter crime is greater than the minimum for that with which the defendant is charged. If a defendant should assert that the evidence showed he was guilty of the former crime instead of the latter,, it might well be said “that the last state of that man is worse than the first.” The words “you may consider the same as tending to show,” appearing in the latter part of the instruction above quoted, are inapt,, and, if taken alone, possibly might be misunderstood by the jury. They are subject to the criticism applied in State v. Rader, 62 Or. 37 (124 Pac. 195). Never
Over the objection of defendant’s counsel certain witnesses who saw the horses soon after they were killed were permitted to state how long they thought the animals had been dead, to the effect that they looked as though they had been killed the day before. The condition of the carcasses of the animals where the brands had been skinned off and the heads severed would be extremely difficult to describe to the jury so that they could approximate how long the brutes had been killed before they were found. The language of the learned majority opinion upon this question based upon a work of medical jurisprudence illustrates this fact. The plainest way for the witnesses to say how fresh the meat was would be for them to say how long the bodies of the horses appeared to have been dead. An ordinary witness could do this. The ordinary observer — the “man in the street” — • is qualified if it affirmatively appears to the presiding judge that he has had sufficient opportunities for drawing the inference which he proposes to state and the capacity necessary to make and state it. Where the statement, therefore, is largely one of fact, or the ground of necessity compelling the admission .is that the jury cannot draw the inference themselves because the facts
“Where any material facts are stated by the witness as warranting the inference that he has sufficient knowledge to form an opinion, it is relevant, but. such conclusion must arise from the witness ’ own personal observation of the facts.”
The men had had experience in butchering and' handling the meat of animals. A witness may be-qualified by practical experience in a field of human-activity conferring on him an especial knowledge not shared by men in general from whom the jury is drawn 17 Cyc. 37.
I am of the opinion that there was no reversible-error as assigned in admitting such testimony or in the trial of the cause, and that the judgment should be affirmed.