117 P. 818 | Or. | 1911
delivered the opinion of the court.
Counsel for defendant contends that no foundation was laid for the introduction of the reporter’s notes of Arthur Meyers’ testimony. For the purpose of laying such a
“Now during the past week or ten days, during the funeral of Mr. Meyers’ father, you understood Mr. Meyers was in Portland ?”
“A. I understood he had been. I did not understand he was there at that time. I understood since he was there at the funeral. I had served this subpoena, and I had filed it with the clerk to be preserved here, and I didn’t know that Arthur Meyers was at his father’s funeral or in Portland until afterwards, and I only know that from hearsay.”
Mrs. Ferguson, called by the State, testified that she reported the testimony at the first trial, taking the testimony of Arthur Meyers at that time; that she did not have the transcript of the testimony, but had the original notes which were correct. Whereupon, over the objection of counsel for the defendant, she was permitted to read such notes of Arthur Meyers’ testimony, which, in substance, were as follows: That he was on the night of the homicide occupying a room over Zinn’s confectionery store in a building owned by his father; that his brother, the
“We wrangled considerable. I went down on the street. I walked up and down on the street a few times and didn’t see anybody. I walked down by the White House Restaurant. Mr. Eckhart was in there. I motioned for him to come out. I says: ‘George is up in my room, and I cannot do anything with him. I would like for you to come up there and take him out.’ I says: T don’t want him arrested. I just want him taken out.’ He went up there with me, and George was asleep. He woke him up, and says: ‘George, Arthur wants you out of the room. You had better get up and put on your coat and come on. By the way, I have orders to arrest you on sight.’ I spoke up and asked what he was arrested for. He said he didn’t know; that Doc. Gibson told him to arrest him when he saw him. George said all right, he would go. He went over and got his coat, and started out with him.”
Q. “Where was his coat?”
A. “Hanging up in the partition. The room is a large room. In one end is a partition about eight or nine feet high. It was hanging up on the other side of the partition, the side away from the main part of the room.”
Q. “What kind of a coat did he get?”
A. “A black slicker.”
“The testimony of a witness, deceased or out of the State, or unable to testify, given in a former action, suit or proceeding, or trial thereof, between the same parties, relating to the same matter” — while Section 1533 provides :
“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.”
The Constitution of Oregon (Article I, Section 11) provides that in all criminal prosecutions the accused shall have the right to meet the witnesses face to face, and the constitutions of most of the states, as well as the Constitution of the United States, contain similar provisions. It is held, however, that, where the accused has once enjoyed the right to cross-examine and confront the witness at an earlier trial, his constitutional right to meet him face to face is not violated by the admission of the
“It relates to the manner in which the testimony is to be given or taken in the first instance, and not to the use which may be made of it after it is once given. The statute was intended to make the general rule concerning the taking of depositions inapplicable to criminal trials; but we cannot think it was designed to abrogate a doctrine so firmly established and generally applied as that of permitting the testimony of a witness given in the manner required by statute to be used by either the State or defense on a subsequent trial, when he has since died or is absent from the State.”
Numerous authorities are there collated and cited. It is perhaps a sufficient answer to the contention of counsel for defense to say that the testimony of Arthur Meyers in this criminal action was given orally and in the presence of the court and jury at the first trial, and the defendant at that time had full and fair opportunity to cross-examine the witness and meet him face to face. Under the great weight of authority, and with due consideration to public policy, we do not think that we should say that the defendant, after having been once tried and con
“There is some testimony in this case about what the defendant has said about the matter in controversy. What a party has said by word of mouth and admitted against himself is termed in law ‘oral admissions.’ In the examination of this kind of testimony you must proceed with caution, for the defendant himself may have been misinformed, or may not have clearly expressed his meaning, or the witness may have misunderstood him, or it may be that the witness who testifies to the admissions by even unintentionally altering a few of the expressions really used caused an effect to the statement clearly at variance with what the defendant actually did say. On the other hand, if you can see from the evidence that the alleged admissions were clearly and understandingly made by the defendant, that they are precisely identified, and that the matter is correctly, properly and accurately reported by the witness, you are authorized to consider such admissions for what you may deem them to be worth against the defendant. In reaching such a result, you must for the reason already given proceed with caution.”
The objection was based upon the contention of counsel for defendant that there was no testimony in the record of any statement of the defendant inconsistent with his innocence; that is, there were no admissions in the case upon which to base such instructions. This, in effect, raises the question of materiality of evidence as to the flight of the accused after the homicide. The conduct of defendant, when an attempt is made to arrest him shortly after the commission of an offense, properly is allowed to be proved for the purpose of showing his criminal intent. It may be shown by witnesses or by
“Some testimony has been admitted to your hearing respecting the reputation and character of the defendant as a peaceable and law-abiding citizen. This testimony is admitted for the purpose of strengthening and aiding the presumption of innocence. The obligations of the law rest alike on good citizens and bad ones, and if, after considering all the evidence under the instructions of the court as to the law, you believe beyond a reasonable doubt that the defendant is guilty of the crime of murder in the second degree, or manslaughter, you will so declare by your verdict, although heretofore the defendant may have had ever so good a character or reputation.”
It is claimed the effect of this instruction is to take away from the jury the consideration of the previous good character and reputation of the defendant. That particular portion of the charge to which objection is made is: “The obligations of the law rest alike on good citizens, and bad ones,” etc. Counsel suggests that the jury is told in effect that, if it believes from the evidence the defendant is guilty, it must convict him, notwithstanding he may have had “ever so good a character or reputation.” That it is in conflict with the rule that the good character of the accused may create a reasonable doubt of guilt, but we do not so understand the purport of this instruction. While it does instruct the jury that, if it believes from the evidence beyond a reasonable doubt that the defendant is guilty, it should so declare by its verdict, the instruction does not eliminate the evidence in regard to good character, but simply charges the jury that, whatever the defendant’s previous good character or reputation, nevertheless if all the testimony, including that in regard to good character, shows him to be guilty beyond a reasonable doubt of the crime charged, the jury by its verdict should so find. This matter in our opinion was properly submitted to the jury.
“Peace officers must obey the law describing the limits of their authority. They have no right to make arbitrary arrests not sanctioned by law, and, if a peace officer makes an unlawful arrest without cause, his official character as a peace officer will not protect him further than that if an arrest is made by a known officer, and nothing is to be reasonably apprehended beyond a mere temporary detention in jail, resistance cannot lawfully be carried to the extent of taking life. If the defendant was in a place where he had a right to be, and was not disturbing the peace,, or otherwise violated the law, Eckhart would have no right, without a warrant, to arrest him or eject him from the place. An arrest under such” circumstances*548 would be an unlawful arrest. An unlawful arrest made by even a peace officer without a warrant or other authority of law would amount at least to an assualt upon the person arrested, which such person would have a right to resist under the law of self-defense, the same as an assault by any individual not a peace officer.”
It would seem that the purpose of the first part of the instruction objected to was to advise the jury that the policeman was a.peace officer. To comply with the contention of counsel, it would be only necessary to change this to, “Eckhart being a policeman in the city of Salem, he was therefore a peace officer.” We think the instruction given was in effect as contended it should be by counsel. In the latter part of the instruction the language is, "being a policeman,” The charge should be considered as a whole. The burden of the objection, however, appears to be that the court failed to instruct the jury that the arrest of George Meyers, under the circumstances, was unlawful, as shown by the stipulation above quoted, from an examination of which it will be seen that it was admitted that Eckhart was an officer of the City of Salem; that he had no warrant for the arrest of defendant, or any orders from any one, except Arthur Meyers. It does not, however, in our opinion go to the extent of admitting that the arrest of defendant was an unlawful arrest, as described by the court in its instructions, to which no exception was taken, but leaves this to the jury. The stipulation does not extend to the conduct of defendant in the presence of the officer. It is true there may be no evidence tending to show that defendant was violating any law or ordinance, except the indirect or circumstantial evidence. We do not think the court was required to instruct the jury as to whether or not there was really any cause or necessity for defendant’s arrest by the police officer. The court could not go to the extent of instructing the jury that the arrest was an unlawful one, without going beyond the
The defendant has had the benefit of two trials; and, finding no error in the record, the judgment of the lower court must be affirmed, and it is so ordered.
Affirmed.