163 P. 567 | Or. | 1917
Lead Opinion
delivered the opinion of the court.
• We pass next to the main question in this case. Assignments of error Nos. 5 to 8 relate to the reception in evidence over the objection and exception of defendant’s counsel of a written confession of defendant and admissions made by him on the ground that the same were involuntary. Before the admission of the confession testimony was taken to show whether or not the same was voluntary.
W. B. Snider, sheriff of the county, testified in part as follows:
“When Tommy arrived at the office in the company of Mr. Caldwell, the deputy, I took him into the private office on the north side of the hall in company with Mr. Binehart and myself and I told him that the Frenchman, Martin Anchoberry, had made a confession in which he implicated him in the murder of that woman, and I asked him if he wanted to see some of his folks or an attorney. If he wanted to he had better call for some of his folks or an attorney and he said'he didn’t. I told bim 'You understand if you make any statements they will be used against you, if you talk at this time.’ In fact, I urged him to talk to some of his folks before he made any statement and he didn’t wish to do it.”
Snider stated that afterwards the district attorney warned the defendant; that no threat or promise was
“Q. Well, you didn’t say to Tommy, a boy you have known for years, and whom you say you didn’t at that time believe to be guilty, ‘Now, Tommy, it will be better for you to tell all you know about this matter if you know anything about it’?
“A. I may have said it, I don’t know. I would not be positive that I did, but it don’t seem to me, * *
“Q. Did you say to him anything to the effect that it would be better for him to tell you if he knew anything about what happened?
“A. No, I don’t think I told him it would be better for him because I realized that it would not and warned him to that effect.
“Q. Did you say to him at that time, ‘Tommy, you ought to tell all you know about this matter and if you do tell I will do anything I can to assist you’?
“A. I don’t know. Afterwards I did.”
E. E. Binehart, the deputy sheriff, testified to the effect that Sheriff Snider and the district attorney warned defendant that any statement he might make would be used against him; that he did not need to make any statement unless he wanted to, and that the sheriff asked him if he wanted to see his folks or wanted an attorney and he said “No”; that he remained in the office with the defendant during the noon hour while the sheriff and district attorney were out; that he talked to defendant quite a while and Morris asked him some questions about his former'’ reputation. As to the conversation regarding the homicide, Mr. Binehart said:
“As near as I can tell in the exact words, it was just about this way: After we talked a while I told him, I said you heard what Willie Arzner has. said and the Frenchman has made a complete statement and has implicated you and I said, ‘the fact of the matter is*438 you was up there at the death of that woman the other night. ’ He nodded his head and said he was.
“Q. You say you had talked some prior to that,— what was that talk?
“A. He asked me some questions, if I knew anything about his past reputation, if he had ever done anything before.
<£Q. What did you tell him?
“A. I said I didn’t know of anything.
“Q. Was that the extent of the conversation that led up to this ?
“A. Yes. * *
“A. He said £I didn’t kill her. * # I just held her hands.’ ”
On cross-examination Mr. Einehart stated: “I did Bay this, ‘You had just as well tell me.’ ”
C. 0. Gibbs, district attorney, deposed in substance, that:
“I told the defendant, Tommy Morris, that the Frenchman, Martin Anchoberry, had made a confession and had implicated him in the killing of that woman. That we wanted to question him concerning the facts; that he need not answer any questions which were put to him unless he wanted to, but that if he did answer questions which were put to him or made any statements which incriminated himself they would be used against him. * * After I had told Tommy that any statement he might make would be used against him we then began to question him. We questioned him concerning his whereabouts on the night of the crime; what different places he had been; what he had done; who he was with, etc., and we would check up his statement to find out to our own satisfaction whether he was telling the truth or not. Then Mr. Snider would question bim a while; I think Mr. Snider and I did most of the questioning. I believe Mr. Einehart asked a question or two. This examination continued until about noon. During that time we had Willie Arzner in the room confronting the defendant Tommy Morris, and I*439 think Johnny Frakes, hut I am not sure about Johnny Frakes.”
This witness further testified that after they returned to the office from lunch the defendant gave an outline of the things leading up to the crime and its commission, and the district attorney wrote the statement in narrative form; that this was read to the defendant who signed and swore to it. On cross-examination he stated that it was the custom of his office to examine a defendant before the latter consulted an attorney.
Tommy Morris, defendant, testified that Einehart—
“told me to tell the truth, it would be better for me and he would do all he could for me”; that Sheriff Snider said “he knew I was into it for the Frenchman said I was and it would be better for me to own up to it. * * He told me to tell the truth and they would do all they could for me. * * I don’t know as he used them words but that is what I took it for.”
Morris stated that he was in the sheriff’s private office ten or fifteen minutes.
The foregoing is in substance a fair portrayal of the manner in which the confession was obtained.
“No act committed by a person while in a state of voluntary intoxication shall he deemed less criminal by reason of his having been.in such condition; but whenever the actual existence of any particular motive, purpose, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the defendant was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act. ’ ’
The only evidence before the jury of any intoxication upon the part of the defendant is that contained in his confession which recites that within an hour or so immediately before the killing he took several drinks of whiskey. The degree to which he was intoxicated does not clearly appear; hut from the number of drinks taken he must have been intoxicated to some degree. The evidence, however, tended to show that it was entirely voluntary. It was sufficient to warrant the instruction complained of: 11 Enc. of Plead. & Practice, 181; State v. Zorn, 22 Or. 591 (30 Pac. 317); State v. Hansen, 25 Or. 401 (35 Pac. 976, 36 Pac. 296.)
“Under this indictment it is not necessary to prove expressly either a purpose to kill, or deliberate and premeditated malice,
“The indictment having alleged murder while engaged in the commission of larceny in a dwelling house, it is only required that the larceny and the killing, in the manner alleged during the larceny be proven to make out the case: * * ”
■ — and that under proof of such a case the intent to kill is implied.
By instruction 12%, in explaining to the jury that upon the prosecution for murder in the second degree alleged to have been committed during the commission of larceny in a dwelling-house, the clause “purposely and maliciously,” etc., contained in Section 1894, included above in parentheses, did not apply, the court used the words ‘ ‘ specific intent ’ ’ apparently in the sense of purpose. See Webster’s International Dictionary, for definition of the words “intent” and “purpose.” Voluntary intoxication cannot reduce a homicide to manslaughter: State v. Weaver, 35 Or. 417 (58 Pac. 109). This instruction, taken together with number 19, is not subject to misunderstanding by the jury.
Prom a careful examination and consideration of the record in the case we find no reversible error in the trial thereof. The judgment of the lower court is therefore affirmed. Affirmed. Behearing Denied.
Concurrence Opinion
(Concurring Specially).
The assignments of error, challenging the confession made by Tommy Morris, relate to a writing signed by him, refer to oral statements concerning money stolen from the decedent and then hidden, and involve verbal •declarations about blood stains on a coat and shirt worn by the defendant.
As a preliminary to a discussion of the circumstances attending the making of the confession, it will be appropriate to notice the rule by which the competency of the confession must be measured. Notwithstanding the phraseology of Section 1537, L. O. L., the common-law rules governing the admissibility of confessions are still in force in this state; State v. Wintzingerode, 9 Or. 153, 162; State v. Moran, 15 Or. 262, 265 (14 Pac. 419); and therefore to be admissible a confession must be free and voluntary and not made under the influence of fear produced by threats nor induced by the expectation of any promised benefit; 12 Cyc. 461. A voluntary confession is admissible even though it is made while in the custody of an officer: State v. Blodgett, 50 Or. 329, 334 (92 Pac. 820); State v. Scott, 63 Or. 444, 449 (128 Pac. 441); State v. Humphrey, 63 Or. 540, 552 (128 Pac. 824); State v. McPherson, 70 Or. 371, 373 (141 Pac.
This quality of voluntariness, so necessary to a confession, presents itself at two stages of a trial: (1) To the judge; and (2) to the jury. The judge passes upon the admissibility and the jurors are the exclusive judges of the weight and credibility of the confession. The decision of the judge is only preliminary while that of the jury is ultimate. The preliminary question is addressed entirely to the judge for at that stage of the trial the sole query is: Is the confession admissible ? State v. Blodgett, 50 Or. 329, 332 (92 Pac. 820); State v. Spanos, 66 Or. 118, 120 (134 Pac. 6). A confession becomes admissible as evidence when the prosecution shows prima fade that it was voluntary and while the judge may, if he chooses, at that stage of the trial permit the defendant to offer affirmative evidence to controvert the testimony of the prosecution, nevertheless, the judge is not obliged to hear the witnesses for the defendant before admitting the confession. If the confession is admitted by the judge and if it comes to the jury with conflicting evidence as to whether it was voluntary, the jurors are not bound to assume that the confession was made voluntarily simply because the judge held that it was admissible. To hold that the decision of the judge is the end of the matter and that his ruling of itself binds the jurors to say, or at least assume, that the confession is in truth voluntary is to take from the jurors the right to decide a vital fact. The judge can say whether a confession
The trial court admitted the confession after hearing the witnesses for the state and also those for the defendant, and since the preliminary inquiry was addressed to the judge who saw and heard the witnesses, his decision should not be disturbed unless the record
The question to be answered upon this appeal is whether the court was justified in submitting the confession to the jury, and that question does not necessarily require us to determine whether the confession was in fact voluntary. It will not be practicable to give more than a brief outline of the circumstances surrounding the confession as recorded in seventy typewritten pages of the transcript of the evidence. Tommy Morris was arrested and delivered to the sheriff at his office about 9:30 or 10:00 a. m. on January 12, 1915. The sheriff immediately took the defendant “into his private office” in company with E. E. Binehart, a deputy sheriff, where in the language of the sheriff:
“I told him that the Frenchman, Martin Anchoberry had made a confession in which he implicated him in the murder of that woman, and I asked him if he wanted to see some of his folks or an attorney. If he wanted to he had better call for some of his folks or an attorney and he said he didn’t. I told him, ‘You understand if you make any statements they will be used against you, if you talk at this time.’ In fact, I urged him to talk to some of his folks before he made any statement and he didn’t wish to do it.”
The sheriff is corroborated by the deputy who testified that the former said to the defendant: “Do you want to see your folks or do you want an attorney?”. Morris answered: “No I don’t want to see anybody”; and then the sheriff warned the defendant “that any
“I told the defendant, Tommy Morris, that the Frenchman, Martin Anchoberry, had made a confession and he had implicated him in the killing of that woman. That we wanted to question him concerning the facts; that he need not answer any questions which were put to him unless he wanted to, but that if he did answer questions which were put to him or made any statements which incriminated himself they would be used against him.”
The sheriff and his deputy both say that Morris was warned in the manner testified to by the prosecuting attorney. The defendant was then questioned and the questioning continued off and on until about noon.
About 12:30 p. m. the sheriff and the prosecuting attorney went to lunch leaving Einehart with Morris in the sheriff’s office for the reason that the latter said that he did not want any dinner. During the absence of the sheriff and prosecuting attorney the defendant made an oral confession to Einehart. Upon their return the sheriff and prosecuting attorney were informed of what had transpired; but, before proceeding further the prosecuting attorney says that: “I again told him that any statement that he might make would be used against him.” Corroboration is found in the testimony of Einehart who swore that the prosecuting
It is true that the defendant testified, on direct examination, that when alone with Rinehart the latter “told me to tell the truth, it would be better for me and he would do all he could for me”; and Morris also claimed that when first brought to the sheriff the latter “said he knew I was into it for the Frenchman said I was and it would be better for me to own up to it. ’ ’ It is also true, however, that the cross-examination lessened the force of the direct testimony. The defendant argues that this positive testimony of the defendant together with' certain answers made by the sheriff and deputy sheriff render the confession inadmissible. A considerable portion of the cross-examination of the sheriff is here quoted:
“Well, you didn’t say to Tommy, a boy you have known for years, and whom you say you didn’t at that time believe to be guilty, ‘Now Tommy, it will be better for you to tell all you know about this matter, if you know anything about it?’
“A. I may have said it, I don’t know. I would not be positive that I did, but it don’t seem to me, * *
“Q. Well, did you say anything similar to that?
*455 “A. I think afterward, when I came back from dinner we again warned him about making statements.
“Q. Let’s go back to my question, Mr. Snider; whether you made any statements of the kind I have just asked you about.
“A. I can’t be sure whether I did or not, I may have.
“Q. Did you say to him anything to the effect that it would be better for him to tell you if he knew anything about what happened?
“A. No, I don’t think I told him it would be better for him because I realized that it would not and warned him to that effect.
“Q. Did you say to him at that time, ‘Tommy, you ought to tell all you know about this matter and if you do tell I will do anything I can to assist you?’
“A. I don’t know. Afterwards I did.
“Q. When?
“A. After the confession was written down I told him I would do everything I possibly could do for him.”
Continuing the sheriff said: “I simply told him, on account of his mother, I would do anything I could” and the witness explained that this statement was made to the defendant in the evening after the confession had been made and after Morris “was put in jail and locked up. ’ ’ A portion of the cross-examination of the deputy reads thus:
“Q. Mr. Rinehart, during the time you and Tommy were there alone didn’t you urge upon him to tell you privately, all about what happened up there, — didn’t you ask him to tell it to you individually while the rest were gone?
“A. I did say this, ‘You had just as well tell me.’
“Q. Didn’t you say this: ‘Now, Tommy you just as well tell all about it and if you will tell it to me here, I will do all I can?’
“A. No, sir.”
Again quoting from the testimony of Rinehart:
*456 “Q. If you discussed that subject from the standpoint of telling the truth at all, in all probability you would say something to him to that effect, if not in those words ?
“A. I wouldn’t say whether I said that. I wouldn’t say I did and I wouldn’t say I didn’t.”
The sheriff testified that at no time “during the course of the examination” did any person make any threat against the defendant or give any promise to him; that “we simply questioned him as to what he did know” and' did not “at any time even request him or urge him to tell what he knew.” Binehart testified that he did not plead with the defendant at the noon hour; that he did not “make any promises of any sort to the defendant”; and that: “I said ‘the fact of the matter is you were up there the night of the murder, ’ and he nodded his head and said yes.” Moreover, Binehart denied saying to the defendant, “It will be better for you to tell the truth, and I will do all I can for you” or that he even used language to that effect.
Standing alone, the testimony of the defendant charging- that he was induced to confess by promises does not as a matter of law render the confession inadmissible: 1 R. C. L., p. 584; State v. Ruck, 194 Mo. 416 (92 S. W. 706, 5 Ann. Cas. 976). The sheriff admits that he did make some promises to the defendant but they were made in the evening after the written confession and subsequent to the statements about the money and blood stains; and, therefore, these admitted promises did not influence the confession. If the confession is inadmissible as evidence it must be on account of previous inducements. . In substance the sheriff said that while he could not be sure yet he “may have” stated to Tommy that it would be better to tell what he knew, and the deputy sheriff’s statement was that
It must be remembered, too, that the oral confession made to Rinehart at the noon hour was not offered in evidence, and it must be borne in mind also that the answers of the sheriff and his deputy upon which the defendant relies refer to what “may have” been said in the morning or during the noon hour. Even though it
“The circuit court had the undoubted right to try the question whether the original influence had ceased when the subsequent confessions were made, and if the record before us disclosed any fact or circumstance to justify the belief that they had in fact ceased, when such subsequent confessions were made, we should not disturb its determination.”
Necessarily considerable latitude must be allowed the Circuit Court in deciding whether a confession is admissible and yet it must be conceded that the trial judge should exercise his discretion with great care so that proper enforcement of the law may not be impeded on the one hand, and that no injustice be done the defendant on the other: 1 R. C. L., p. 583.
While different minds might draw different conclusions from the conflicting evidence, yet, there was enough evidence, if believed, to enable a jury to find that the confession was voluntary, and consequently the trial court did not err in submitting the confession to the ultimate triers of the facts. Believing that the trial was free from prejudicial error, I concur in the opinion and conclusion of Mr. Justice Bean.
Dissenting Opinion
delivered the following dissenting opinion:
The defendant Morris was brought to trial upon an indictment, the charging part of which is as follows:
“The said Martin Anchoberry and Tommy Morris on the 9th day of January, A. D. 1915, in said county of Lake and State of Oregon, then and there being and acting together, were then and there unlawfully and*460 feloniously engaged in the commission of the following felony, to wit: The crime of larceny in a dwelling-house, by then and there unlawfully and feloniously taking, stealing and carrying away in a dwelling-house currency, gold coin and silver coin, lawful money of the United States, of the value of One Hundred Five Dollars, the money and property of Bertha Bronson; and the said Martin Anchoberry and Tommy Morris while then and there engaged in the commission of such larceny in a dwelling-house did then and there unlawfully and feloniously assault the said Bertha Bronson by then and there choking and strangling her whereof she the said Bertha Bronson, then and there died.”
From a judgment of conviction upon a verdict of guilty as charged, he appeals.
The defendant complains that a paper purporting to be his confession was introduced in evidence over his objection and without sufficient proof that it was made voluntarily; but that on the contrary the testimony shows that it was extorted from him by holding out the inducement to the effect that it would be better for him to confess and by coercion as noted further on. It appears that he is a minor, nineteen years old; that he was arrested by a deputy sheriff, brought to the courthouse and delivered to the sheriff about half-past 9 o’clock in the forenoon of January 12,1915, and without taking him before the magistrate who issued the warrant .of arrest, or any other judicial officer, the sheriff and his deputy, together with the district attorney, proceeded to catechise him about his connection with the crime, telling him that his codefendant had made a confession implicating him. Whether the other party accused had really confessed or not does not appear. The officers mentioned all say, that they told this defendant he need not say anything unless he wished to and that he said he did not want to see an attorney or any of his folks. First one and then the
Sections 135 and 136, L. O. L., are here set down:
Section 135. “All questions of fact, other than those mentioned in section 136, shall be decided by the jury, and all evidence thereon addressed to them.”
Section 136. “All questions of law including the admissibility of testimony, the facts preliminary to such admission, and the construction of statutes and other writings and rules of evidence, are to be decided by the court, and all discussions of law addressed to it. * * ”
As stated in Redd v. State, 69 Ala. 255, quoted with approval by this court in State v. Moran, 15 Or. 262, 265 (14 Pac. 419, 421):
“It is a well established maxim of the law that the admissibility of evidence is always a question to be determined by the court, and its weight or credibility is for the determination of the jury. It is for the court, therefore, to say whether the confessions of a prisoner are voluntary or involuntary, and this question being judicially settled, cannot be reviewed by the jury.”
The ruling of the court upon the admissibility of the testimony, therefore, is the exercise of a judicial function which we are called upon to review upon the record before us. In State v. Young, 67 N. J. Law, 223 (51 Atl. 939), the following appears:
“When a convicted person elects to bring up with his writ of error the entire record of proceedings at the*462 trial, and specifies as a cause for relief or reversal that he has suffered manifest wrong or injury by the admission in evidence of a statement made by him, offered by the state, and tending to prove guilt, the reviewing court must consider the evidence preliminarily laid before the trial court, and its findings of facts thereon. If such evidence, though pertinent to support such finding, is insufficient in weight to justify the finding, it may be determined that wrong or injury has been done by its admission.”
The only function the jury has in the matter is to estimate the credibility of the evidence, for it is said in Section 868, L. O. L.:
“The jury, subject to the control of the court in the cases specified in this code, are judges of the effect or value of the evidence addressed to them, except when it is thereby declared to be conclusive.”
When, therefore, the court has ruled that a defendant’s statement was voluntary, that concludes the investigation about whether it is admissible in evidence. It goes to the jury for what it is worth in their estimation. They must consider it and they cannot review the judgment of the court on its competency. As affecting its weight, however, the jury is entitled to know all the circumstances under which the defendant’s utterance was made, and if it should appear to them it was extorted by compulsion or by promise or imparted hope of benefit they would be authorized to disbelieve it the same as they would the ravings of one in delirium of fever or when talking in his sleep.
It is well settled as a principle of law that before a confession is admitted in evidence the prosecution must show that it was freely and voluntarily made, and that if it shall appear that any compulsion moral or physical is applied to him or any inducement is held out to him, as that it would be better, for him to confess and the
“Well, you didn’t say to Tommy, a boy you have known for years, and whom you say you didn’t at that time believe to be guilty, ‘Now, Tommy, it will be better for you to tell all you know about this matter, if you know anything about it?’ ”
He answered:
“I may have said it, I don’t know. I would not be positive that I did, but it don’t seem to me * *
“Q. Let’s go back to my question, Mr. Snider; whether you made any statements of the kind I have just asked you about.
“ A. I can ’the sure whether I did or not, I may have. ’ ’
The deputy in whose custody the defendant remained during the noon hour was questioned thus:
“Mr. Einehart, during the time you and Tommy were there alone didn’t you urge upon him to tell you privately, all about what happened up there — didn’t you ask him to tell it to you individually while the rest were gone?
“A. I did say this, ‘You had just as well tell me.’
“Q. When you were maintaining that friendly attitude you told him it would be better for him to tell the truth did you?
“A. I don’t know, I might have told him it was better for him to tell the truth. I wouldn’t say I did tell him of course.”
Further about the interview with the defendant during the noon hour the deputy testified thus:
“Q. Eegarding the homicide what did you say?
“A. As near as I can tell you in the exact words, it was just about this way: After we talked awhile I told*464 him, I said ‘you heard what Willie Arzner has said and the Frenchman has made a complete statement and has implicated you’ and I said, ‘the fact of the matter is you was up there at the death of that woman the other night. ’ He nodded his head and said he was.”
Again, he was interrogated:
‘‘Q. If you discussed that subject from the standpoint of telling the truth at all, in all probability you would say something to him to that effect if not in those words.
“A. I wouldn’t say whether I said that. I wouldn’t say I did and I wouldn’t say I didn’t. ’ ’
The defendant testified thus:
.“Q. What, if anything, did Mr. Rinehart say to you regarding your telling the truth, of his agreeing to assist you if you would tell the truth?
“A. He told me to tell the truth, it would be better for me and he would do all he could for me.
“Q. Do you remember a statement of like nature made to you by the Sheriff, W. B. Snider, after you had attached your name to the document which Mr. Gibbs wrote up for you?
“A. Yes, he told me that evening that he would do all he could for me.
“Q. Did he make a statement of that nature to you more than once ?
“A. I think he did, when I was first arrested and they had me in that private office.
“Q. What did he say to you?
“A. He said he knew I was into it for the Frenchman- said I was and it would be better for me to own up to it.
“Q. Did he ever, at any time, say anything about doing what he could to assist you if you told the truth— do what he could for you or anything of that kind?
“A. Yes, that is what he said when we were in the priváte office before I told him. ” •
Pressed . on cross-examination the -defendant answered as follows:
*465 “Now going back to. the time yon were:in this private office: Just what was the words Snider nsed to you in there?
“A. He said the Frenchman had told that I was into it and for me to own up to it and he would do what he could for me.
“Q. Are those the words he used?
“A. I think so.
“Q. Aren’t these the words he nsed? ‘The Frenchman has confessed and implicated yon in this matter ? ’
“A. That is what’he said for part of it.
“Q. Isn’t that about all he said outside of the warning he gave you ?
“A. He said he had implicated me in it and he wanted to know whether I was in it.
“Q. That is the words he used is it?
“A. I think so.
“Q. You think those are exactly the words he used?
“A. They might not be exactly.
> “Q. He did tell you he wanted to-ask you some questions about it?
“A. I don’t think so.
“Q. Now yon are satisfied that is what he told you, those are the words he used?
“A. That is what he meant.
“Q. How do you get the meaning out of that that he knows you are in it and it would be better for you to own up?
“A. Because the Frenchman told him is all I know.
“Q. He didn’t use those words, you'simply got the idea from the fact that the Frenchman had told him all about it and he wanted to ask you about it?
“A. I can’t remember just the words he used. ■'
“Q. Then you don’t know, as a matter of fact whether he thought it would be better for you to own up?
“A. That is what he meant: I can’t remember the words he used to say it just like he did.”
This is plainly the boy’s way of saying that he had given the substance of the sheriff’s language as.near
“Q. You think then, that he is á bright fellow?
“A. No, I didn’t say that.
‘ ‘ Q- Then answer my question as to his being bright.
“A. I would not say he is a bright man, I don’t think he is.
“Q. He didn’t act the part of a bright man while he was in there?
“A. He isn’t — yes, well, you would not call him bright but he is not simple. No, no, he is not a bright man.”
The district attorney stated as a witness that the examination of the defendant resulting in the alleged confession took place in the sheriff’s private office and that at his request the sheriff locked the door to keep the people from coming in and out. He also testified in answer to the following interrogatories thus:
“Q. Did you advise Tommy that he had better secure counsel before he talked to you or the sheriff?
“A. No, I did not. I didn’t tell him he had better see counsel before he talked to us.
“Q. Asa matter of fact it is the policy of your office to secure the first conversation with a man when he is arrested, before they can secure counsel, isn’t it?
“A. Yes, it is the policy of my office in the examination of any criminal to find out what I can about the case.
“Q. And insist upon seeing them before they can see counsel?
“A. I do if I can.”
By the testimony of the state these elements proper to be considered as affecting the question about whether the confession was voluntary are thoroughly established: 1. The defendant was under arrest and in the
The Code has established the procedure to be followed in case of arrest:
Section 1746, L. O. L. “If the crime charged in the warrant be a felony, the officer making the arrest must take the defendant before the magistrate who issued the warrant, or some other magistrate in the same county, as provided in Section 1740.”
Section 1752. “The defendant must, in all cases, be taken before the magistrate without delay.”
Section 1772. “When the defendant is brought before a magistrate upon an arrest, either with or without warrant, on a charge of having committed a crime, the magistrate must immediately inform him of the charge against him, and of his right to the aid of counsel, before any further proceedings are had.”
These sections mark out the plain duty of the sheriff. It was a violation thereof to take the defendant before a self-constituted board of inquisitors for their private interrogation. The law contemplates that the examination of the defendant takes place in open court and that it be not delayed by any secret proceeding. This circumstance itself of course would not alone justify the rejection of the so-called confession, but it is proper to take it into consideration with all the other conditions attendant upon the production of that document as illustrative of the atmosphere surrounding the
“Section lfi9 (L. O. L., § 1537) of the criminal code has not altered the rule of the common law as to the inadmissibility of confessions induced by the influence of hope, applied to the prisoner’s mind by an officer of the law having him in custody on a charge of crime. When a confession has been improperly obtained by such officer of a prisoner in his charge, by such means, a subsequent confession of similar facts, made by the prisoner while still in custody, upon the samé'charge, should be excluded, unless facts or circumstances are shown which fairly' justify the inference that the influence under which the original confession was ob*469 tained has ceased to operate upon the prisoner’s mind. ’ ’
The language addressed to the prisoner in that case by the officer having him in custody, was this: “It would be better for you, Harry, to tell the whole thing. ” The confession in response to that injunction was excluded by the trial court, but another made the first or second day after the arrest while the defendant was still a prisoner was admitted. This court, however, rejected even the second confession, because although there was a lapse of one or two days between the two there was nothing to show that the influence of the former inducement had been removed from the prisoner’s mind. As between the defendant and the sheriff in the instant case we have the former positively affirming that the latter told him it would be better for him to own up, and the direct refusal of the officer to deny that he thus persuaded his prisoner. Under such a state of the evidence on the point the only reasonable conclusion to be drawn is that the sheriff used the language imputed to him by the defendant. Following the Wintzingerode Case as the settled law in this state, as that case has never been doubted since it was decided, the conclusion is plain that the confession ought to have been rejected. This deduction is strengthened by the circumstances of the case. The defendant’s right to be taken at once before the magistrate and there by him informed of his right to counsel before ■any further proceedings were taken had been grossly violated. A half-witted boy was taken into a private room for an extended quiz by those whose manifest purpose was to obtain a confession and with whose brighter minds his was no match.
In Bram v. United States, 168 U. S. 532 (42 L. Ed. 568, 18 Sup. Ct. Rep. 183), the defendant was the first
“When Mr. Bram came into my office, I said to him: ‘Bram, we are trying to unravel this horrible mystery.’ I said, ‘Your position is rather an awkward one. I have had Brown in this office and he made a statement that he saw you do the murder.’ He said, ‘He could not have seen me; where was he?’ I said, ‘He stated he was at the wheel.’ ‘Well,’ he said, ‘He could not see me from there.’ I said, ‘Now, now look here, Bram, I am satisfied that you killed the captain from all that I have heard from Mr. Brown. But,’ I said, ‘some of us here think you could not have done all that crime alone. If you had an accomplice, you should say so, and not have the blame of this horrible crime on your own shoulders.’ He said, ‘Well, I think, and many others on board the ship think, that Brown is the murderer; but I don’t know anything about it.’ He was rather short in his replies.”
In an opinion by the present Chief Justice of the Supreme Court of the United States, the following extract from 3 Bussell on Crimes (6 ed.), 478, is quoted with approval :
“But a confession, in order to be admissible, must be free and voluntary; that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. A confession can never be received in evidence where the prisoner has been influenced by any threat or promise; for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted.”
“While the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition. The change in the English*472 criminal procedure in that particular seems to he founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly embedded in English, as well as in American jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the States, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim, which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment. ’ ’
This doctrine has been embodied in Article I, Section 12, of our own state Constitution:
‘•‘No person shall be put in jeopardy twice for the same offense nor be compelled in any criminal prosecution to testify against himself.”
The decision of the Bram Case was founded upon the like provision in the national Constitution.
Reverting to the doctrine laid down in the excerpt from Russell on Crimes, the question is not what amount of compulsion or inducement there may have been, but was there any of it. It matters not that the officers told the defendant he was not obliged to talk. They did tell him following up their accusation that he had just as well tell them, and by an overwhelming weight of the testimony they did say to him that it would be better for him to confess. The court will not open an account, charge the defendant with the statement of the officers who told him he need not say anything unless he wished to and credit him with his own testimony and the admission of the officers that they told him it was better to, or that he had just as well tell it after they had accused him, and after all, strike a balance in favor of the state and so admit the con
Recalling that the deputy sheriff expressly says that after having accused the defendant of being present at the homicide he said to him “you had just as well tell me,” a very instructive ease on that branch of the subject is State v. Nagle, 25 R. I. 105 (54 Atl. 1063, 105 Am. St. Rep. 864). The defendant was accused of having murdered her husband with a pistol which she had purchased. The officer who arrested her talked with her on the way to jail. He stated as a preliminary that he had made no inducement to her and actually held out none. He declared that he told the defendant that the truth whatever that might be ought to be told, but that she had an undoubted right to plead guilty or not guilty in regard to any part of the case which was coming before the court. On cross-examination he testified that he said to the defendant:
“It is thought that you bought this revolver; but she said, ‘No, sir, I did not buy it.’ I said to her, ‘There is no question but what you bought the revolver, and if you did you will gain nothing by denying it.’ Also ‘It would be better for you to tell the truth; we have ample proof that you purchased this revolver.’ ' That she said: ‘I did not, and I never was in Halliday’s store in my life.’ I remarked that I did not mention Halliday’s store in the matter at all. ‘Now,’ I said, ‘having mentioned the place where you bought it, you might just as well say whether or not you bought it. What did you pay them for that revolver? She said, ‘I paid*474 them two dollars for it, and they gave me the cartridges.’ ”
After referring to the Bram Case and others approving the doctrine of Bussell on Crimes already noted, the court says:
“The language used by the officer, taken as a whole and taken in connection with the contradictory statements made by the defendant about the purchase of the pistol, was such as to very naturally convey to the mind of the defendant the idea that she would gain some advantage by admitting that she bought the pistol and obtained the cartridges therefor. And hence it cannot be said that her admission relating thereto was voluntary.”
The court there holds that a mere request or advice to tell the truth will not render a confession inadmissible, and says:
“But where the request or admonition is given in such language and under such circumstances that the prisoner might naturally have understood it as recommending a confession, the confession induced thereby will be inadmissible in evidence.”
In State v. Alexander, 109 La. 558 (33 South. 600), the defendant was in the custody of the arresting officers upon a charge of robbery committed in connection with one Payne. While thus detained, Alexander asked one of the officers, if Payne was yet apprehended to which question the officer replied :
“No, that as soon as he is caught, he is going to' turn state’s evidence, and, if you have got anything to say, you had better say it now.”
In a well-considered opinion by Mr. Justice Monroe, the court reversed the judgment of conviction because of the admission of the confession made by the defendant in response to that statement of the policeman. In
“The statement by a police officer to a prisoner that ‘You have been telling me a pack of lies; now you had better tell the truth’ is sufficient to render a consequent confession by the prisoner involuntary as a matter of law.”
In State v. Davis, 125 N. C. 612 (34 S. E. 198), the defendant was arrested by an officer who said to him that he “had worked up the case, and he had as well tell all about it.” The court commenting upon this language and holding that it was error to receive the ensuing confession of the prisoner, said:
“An officer, with authority to arrest, discharges his duty by simply making the arrest, and it is no part of his duties to provoke a prisoner to make any statement. The genius of our free institutions provides that admissions of a party should not be used against him, unless made voluntarily. The common law looks with jealousy on such confessions; for, if made under the influence of hope or fear, they furnish no test of the truth of the matter. They may be true, and they may be inspired by either hope or fear that such statements will be better for him in the near future.”
In State v. Whitfield, 70 N. C. 356, the language of the prosecutor was this:
“I believe you are guilty; if you are you had better say so; if you are not, you had better say that. ’ ’
It was held that the confession was made under the influence of hope or fear or both and was inadmissible. In People v. Gonzales, 136 Cal. 666 (69 Pac. 487), as stated by the opinion it appears that the sheriff visited the defendant in prison; that at first the latter denied all knowledge of the crime, but after awhile the sheriff “told him he had better come out and tell the truth; that the statement he had formerly made was not true;
“It scarcely needs reasoning to show that a statement extorted as was this one is not the free, voluntary statement which the law contemplates shall alone be admissible. ’ ’
A substantially parallel case is State v. Jay, 116 Iowa, 264 (89 N. W. 1070). The deputy sheriff who arrested the defendant on a charge of larceny of a mare, testified thus:
“Q. You told him if he would tell where she was it would go easier with him, did you?
“A. I might have told him it would be better for him. The mare he had taken had been traded, and he wanted to tell where she was. After I asked him some statements, he said he would tell where the mare was.
‘ ‘ Q. That is, you asked him questions, as the testimony here shows, of Mr. Garner, that if he would tell this it would be easier for him?
“A. Perhaps I told him something like that; yes.
“Q. Didn’t you, Mr. Keenhold, in fact, tell him that before Garner came up ?
“A. Yes, sir; perhaps I did.
“Q. And, when you told him it would go easier for him if he would tell about it, then he told you before Garner came up about the horse?
“A. He told me; yes. He told me where he had traded the horse, and where he could probably find her. ’ ’
The language of the court follows:
“It is elementary law that such statements must be entirely free and voluntary; that is, must not be extracted by any sort of threats or violence, nor any direct or implied promises however slight, in order to be admissible. It is not important to determine whether they amounted to a confession of guilt, or merely a dec*477 laration of facts tending to show guilt, for, as said in G-reenleaf on Evidence, ‘the law excludes not only direct confessions, hut any other declaration tending to implicate a prisoner in the crime charged, even though in terms it is an accusation of another or a refusal to confess.’ The evidence leaves no doubt but that the officer, before anything was said by Jay, assured him that it would go easier with him if he would tell where the mare, alleged to have been stolen, was, and we have only to determine whether this was sufficient inducement to justify the exclusion of the evidence. ’ ’
In Vaughan v. Commonwealth, 17 Gratt. (58 Va.) 576, the court refused- to distinguish between the statement “you had as well tell all about it” and one to the effect that the defendant had better tell about it, and rejected the confession. These cases are applicable to the situation as portrayed by the testimony of the officers themselves to the effect that they confronted the prisoner with the statement that the other man had implicated him; that he had just as well tell about it, and directly accused him of being present at the homicide: There can be no question whatever that these statements were made because they come from the mouths of the witnesses for the prosecution. Why was the defendant taken into the sheriff’s private office under lock and key and catechised by the officers? It was for the purpose of getting a confession. Why was he told that he had just as well tell it? It was to urge him to make a statement. Why was he directly accused of being present at the crime? It was a species of compulsion to move him to speak. Under all these circumstances the authorities quoted are demonstrative that the statement is not voluntary and ought to be rejected and this independent of the defendant’s testimony not denied by the sheriff that he was told it would be better for him to own up. On the statement of the officers
But it is said the officers warned him that he need not make a statement unless he was willing and immediately prior to beginning the writing again told him that he need not make a statement unless he wished to. None the less, however, not a single one of them anywhere says that they withdrew the former statement that he had just as well tell it or their accusation against him of the crime and that the other man had implicated him. There is nothing whatever to show that this influence had been removed. As well might a robber say “I told my victim that he need not give up his purse, yet I had my loaded pistol pointed at his head.” The officers may have observed the letter of the law in their formal admonition but they broke it in the spirit by their other language as shown by the precedents quoted. The whole transaction was covered by the time between about 9:30 o’clock in the forenoon and soon after 1 o’clock in the afternoon when the taking of the written confession began. In Commonwealth v. Taylor, 59 Mass. (5 Cush.) 605, the language of the opinion is this:
“In the present case, the promises were such, as might excite hopes in the mind of the prisoner, that he should be materially benefited by making disclosures. He was in the hands of the police officer Starkweather, and "Wright, a deputy sheriff, and he was told by them that if he should make disclosures that would be of benefit to the government, they would use their influence to have them go in his favor. This was between four and five o ’clock in the afternoon. He did not then make any disclosures; but the next morning, being in the custody of Wright, and without any further inducements, he made the admissions now offered to be proved. The case seems to us to fall within the rule,*479 excluding confessions obtained under the influence of inducements held out by an officer having the prisoner in his custody, and for that reason the testimony of Wright ought to have been excluded.”
In Commonwealth v. Curtis, 97 Mass. 574, the officer having the defendant in custody said to him that ‘ ‘ as a general thing it was better for a man who was guilty to plead guilty, for he got a lighter sentence.” Commenting' on this the court said:
“It is true that this remark was in reply to an inquiry by the prisoner whether he should advise him to plead guilty, and that the officer promised by saying that ‘he did not wish to advise him one way or the other for fear it might not suit him.’ But we do not think any different rule is to be applied because the prisoner introduced the conversation on the subject, and solicited the counsel of the officer. The officer ought not to have assumed to act as his adviser even at the prisoner’s request. * * There is no doubt that any inducement of temporal fear or favor coming from one in authority which preceded and may have influenced a confession, will cause it to be rejected unless the confession is made under such circumstances as show that the influence of the inducement has passed away. No cases require more careful scrutiny than those of disclosures made by a party under arrest to the officer who has him in custody, and in none will slighter threats or promises of favor exclude the subsequent confessions.”
In Mackmasters v. State, 82 Miss. 459 (34 South. 156), the defendant had made a confession to the officer which the court ruled was inadmissible because of inducements held out to the defendant; but admitted subsequent statements to another person. The opinion there says:
“If the confession made to Harvey is not free and voluntary, then the subsequent statements to Lambert are tainted with the same inducements, and are to be*480 attributed to the first cause moving the defendant to •make the confession to Harvey, unless the evidence clearly shows otherwise. Under the decisions of this court it is clear that the confessions were not free and voluntary, and the objections made to their introduction in evidence should have been sustained.”
In Banks v. State, 93 Miss. 700 (47 South. 437), the prisoner’s first confession was rejected because of improper inducements. The judgment of conviction was reversed because the second confession made the next day to the same parties while still in their custody was admitted. In People v. Silvers, 6 Cal. App. 69 (92 Pac. 506), the defendant under arrest for the crime of larceny was brought before the district attorney. There were also present one Aitken, one of the officers of the defendant’s employing corporation, together with the president of the institution, a Pinkerton detective and the defendant’s brother. The district attorney informed him (the accused) that he understood he desired to make a confession; whereupon the defendant said nothing but tears came into his eyes and then Aitken said to him: “Brace up old man and it will be better for you, and tell everything you know.” He still hesitated but afterwards made a statement indicative of guilt. It was held that Aitken’s statement urging the defendant to confess being made in the presence of the district attorney and not contradicted may well have been construed as a promise of favor if he confessed, though the district attorney informed defendant that he need tell only what he desired. The court said that under such circumstances it was incumbent upon the district attorney not only to say to the defendant that he need not speak unless he wished to, but also to go further and explicitly remove the statement of Aitken from the case and to disclaim being bound by it. In People v. Castro, 125 Cal. 521 (58 Pac.
In brief, on the subject of confessions as taken from the evidence of the officers themselves the fact that the defendant is under arrest and is told that another party has confessed implicating him and that he is accused of being present at the homicide and that he had just as well tell it, constitute a compulsion which excludes any confession made in pursuance thereof, although the officers went through the formality of saying to him that he need not speak unless he wished to. Furthermore, the fact that the defendant declares that the sheriff told him it would be better for him to own up and that the sheriff taxed with this statement on cross-examination would not deny it, and neither did the
The contention of the state was in substance that the two defendants went to the abode of the deceased and choked her to death for the purpose of stealing her money which she kept in her trunk there. The physician who examined the body was called, and as a witness described the conditions present, the finger marks upon the throat and internal hemorrhage, and then testified as follows over the objection of the defendant:
“Q. From the position of the marks upon the woman’s throat and the condition of the throat, can you state, as a result of your examination as a physician, whether or not the strangulation was self inflicted?
“A. It was not.
“Q. From such examination can you state whether or not it was the result of an accident?
.“A. My opinion was it was not accidental.”
It was the exclusive province of the jury to determine whether the violence was inflicted accidentally or feloniously. This testimony admitted by the court over the defendant’s objection allowed the witness to determine that question for the time being by his opinion. Moreover, it was not a question for opinion or expert evidence. The witness, whether professional
In State v. Barrett, 33 Or. 194 (54 Pac. 807), a conviction of manslaughter was reversed for the single error of receiving opinion evidence upon a matter which the jury was competent to determine without the assistance of experts. It is there said in the syllabus:
“The opinion of a witness that the body of the deceased at the time he saw it did not lie in the position in which it fell when the person was shot is not competent evidence, for it appeared that the position of the body and the surroundings of the place could all be accurately described, and under such circumstances the jury are to draw their own conclusions.”
In State v. Mims, 36 Or. 315 (61 Pac. 888), the defendant pleaded self defense and undertook to show that he was as helpless as a child in a fight with the deceased and did not stand any chance to get away from him. The court held that this called for a matter of opinion of the witness concerning a matter on which the jury were quite as competent to decide as the witness. In State v. Jennings, 48 Or. 483 (87 Pac. 524, 89 Pac. 421), the error leading to the reversal of the conviction of murder was admitting the opinion of a witness about the direction from which a shot was fired; and the court held that where the facts observed by a witness can be accurately portrayed to a jury, the evidence should be limited to such recital and the witness should not be permitted to state his deductions from such facts.
“For instance,” says the syllabus, “a witness who saw the surroundings soon after a homicide by shooting should not be allowed to state his opinion as to the place*484 from which the bullet came, where the conditions observed can be adequately described.”
See, also, Everart v. Fischer, 75 Or. 328 (145 Pac. 33, 147 Pac. 189). These cases are certainly controlling against the opinion of the witness concerning whether or not the death was the result of accident. It was for the jury alone to determine whether the death was accidental or felonious and the witness might as well have been asked his opinion about the guilt or innocence of the defendant. Besides being outside the range of expert testimony the declaration of the witness invaded the province of the jury.
Exception was taken to the giving of instruction No. 12% to the effect that voluntary intoxication is not a defense to a prosecution for crime. The charge in that respect was correctly framed in the abstract, hut a careful perusal of the full report of the testimony attached to and made part of the hill of exceptions reveals nothing whatever showing that the defendant was intoxicated or that drunkenness was urged as a defense. It is true that in the confession the defendant spoke of drinking with his codefendant from a bottle of whisky, but he does not pretend to have been drunk and all the witnesses who spoke on that subject said that at the time of the homicide he was not intoxicated.
He also assigns error upon the giving of instruction No. 16, which is here set down:
‘ ‘ The constitution of this state having been amended to abolish capital punishment, the crime of murder is limited to murder in the second degree and manslaughter. You are therefore instructed that under this indictment, you may find the defendant not guilty, or you may find him guilty of manslaughter, or you may find him guilty of murder in the second degree.”
The court gave instructions 17,18, and 19, as follows:
No. 17. “Murder in the second degree is where a person, purposely and maliciously, but without deliberation or premeditation, or in the commission or attempt to commit any other felony than rape, arson, robbery or burglary, kills another, or where a person, by an act imminently dangerous to others, evincing a depraved mind regardless of life, although without the design to effect the death of any particular person, kills another. ’ ’
No. 18. “Manslaughter is where a person, without malice expressed or implied, or without deliberation, upon sudden heat of passion caused by strong provocation, kills another; or where a person in the commission of an unlawful act, or in the commission of a lawful act, without due caution or circumspection, involuntarily kills another.”
No. 19. “Under this indictment it is not necessary to prove expressly either a purpose to kill, or deliberate and premeditated malice. The indictment having alleged murder while engaged in the commission of larceny in a dwelling house, it is only required that the larceny and the killing, in the manner alleged during the larceny be proven to make out the case. In such a case and under such proof the intent to kill and the deliberate and premeditated malice are incontrovertibly implied. ’ ’
The defendant predicates error upon the giving of instruction No. 19. The court had already stated to the jury in No. 17 that murder in the second degree is
“In such a case and under such proof the intent to kill and the deliberate and premeditated malice are incontrovertibly implied. ’ ’
These two instructions contradict each other for in the first deliberate and premeditated malice is excluded while in the latter it is held to be “incontrovertibly implied.” Again, in No. 18, the court said that a person is guilty of manslaughter, if he kill another without malice or without deliberation, but took away from the jury in No. 19 all doubt of deliberate and premeditated malice being an element of the offense by saying it was incontrovertibly implied. Moreover, in No. 18 the judge told them that manslaughter consisted in involuntary homicide happening in the commission of an unlawful act, yet in No. 19 he told them'that the indictment having alleged murder while engaged in the commission of larceny in a dwelling-house, only requires that the larceny and the killing, in the manner alleged during the larceny be proven to make out the case.
As applied to this issue it cannot be true that both these instructions, 18 and 19, correctly declare the law. If it is manslaughter only to commit a homicide while in the perpetration of an unlawful act as described in No. 18, it certainly cannot be murder in the second degree to kill another while in the perpetration of an unlawful act as described in 19. Again, the court had no right to inject into the case deliberate and premeditated malice in any event because that is not included in any definition of murder in the second degree.
There is no testimony in the case indicating that any accomplice testified, yet the court gave the jury an in
“The instructions are not only wholly disconnected in context, but are in direct conflict, so that they cannot be read together, as a harmonious and correct statement of the principle of law involved: People v. Gonzales, 71 Cal. 569 (12 Pac. 783); Perkins v. State, 78 Wis. 551 (47 N. W. 827); State v. Keasling, 74 Iowa, 528 (38 N. W. 397.) ”
The charge to the jury abounds in abstractions and contradictions. This court has many times held that abstract instructions although correct in a proper case, are cause for reversal when not fitted to the issue in hand: Willis v. Oregon R. & N. Co., 11 Or. 257 (4 Pac. 121); Breon v. Henkle, 14 Or. 494 (13 Pac. 289); Marx v. Schwartz, 14 Or. 177 (12 Pac. 253); Bowen v. Clark, 22 Or. 566 (30 Pac. 430, 29 Am. St. Rep. 625); Booth v. Scriber, 48 Or. 561 (87 Pac. 887, 90 Pac. 1002); Woodward v. Oregon R. & N. Co., 18 Or. 289 (22 Pac. 1076); Buchtel v. Evans, 21 Or. 309 (28 Pac. 67); Coos Bay R. Co. v. Siglin, 26 Or. 387 (38 Pac. 192). The subject is treated by Mr. Justice Moore in Tonseth v. Portland Ry., L. & P. Co., 70 Or. 341 (141 Pac. 868), a decision written since the procedure laid down in Article VII, Section 3, of the Constitution. Many of our own decisions are there collated and the doctrine reiterated that the giving of abstract instructions are per se ground for reversal. Finally, on this point, in the ease of State v. Branson, 82 Or. 371 (161 Pac. 689), Mr. Justice Benson reviewed the proceedings of the Circuit Court and found them faultless with the exception that the Circuit Court had given an instruction upon
The objection to the indictment is without merit and there is nothing to justify criticism of the instruction about a dwelling-house. If a building is habitually used as a place of abode of any human being it is a' dwelling-house within the meaning of the law without reference to the moral conduct of its inmates. In charging the jury the court should have confined its attention to the form of homicide set out in the indictment or at the most to a lesser degree necessarily included therein. Reference to the abolition of murder in the first degree and putting into the case the elements of deliberation and premeditation which by our statute are excluded from all forms of murder in the second degree were clearly erroneous.
Aside from the manifest error of admitting the confession and permitting the opinion of the witness to invade the province of the jury the case is clearly obnoxious to the opinion laid down in the Branson Case and if the defendant there was entitled to a reversal for the single error noted by Mr. Justice Benson, the same ruling is due to the defendant here for the manifold errors appearing in the instructions alone. The conviction should be reversed and a new trial ordered.
Concurrence Opinion
specially concurring:
The only ground upon which the judgment of conviction in this case can be upheld is to base the affirmance upon the power given to us in Article VII, Section 3, of the Constitution of the State of Oregon. This I regard as a power to be used sparingly and with great caution. Its application to the case at bar would, I fear, tend to such carelessness and relaxation of the safeguards which the constitution itself throws around the trial of a criminal case as to be of doubtful advisability, and I therefore concur in the conclusion reached by Mr. Justice Burnett.
