13 Or. 183 | Or. | 1886
Lead Opinion
The defendant was indicted, tried, and convicted of murder. By the bill of exceptions, it appears
The affidavit states “that C. M. Miller is a material witness-; that he is now in Kansas City, state of Kansas; that his attendance cannot be procured at this term of court, but I am confident I can procure his attendance at the next term of the court.” In this statement there are no facts set out from which the court can judge-whether there is reasonable ground to believe that the attendance of the absent witness can be procured at a future day. It is not enough to say, “I am confident I can procure his attendance at the next term of the court;”' but the facts or circumstances upon which such confidence or belief is founded must be set out, so that the-court may look into and determine from them whether there is reasonable ground to believe that the attendance of the witness can be procured. , “But if the affidavit,” said Crockett, J., “had stated explicitly his belief that he-could procure their personal attendance at the next term,, it would still have been insufficient, unless the reasons for his belief had been set forth, to enable the court to
It is next objected that the court erred in sustaining the objection made by the state, and excluding the answer of the witness John Frazer to this question: “ State whether or not you saw the defendant leaving Medford for Ashland, on his way from' visiting his brother, at Jump-off-Jo, about the first of October, 1884; if so, state whether he had in his possession a double-barreled shotgun, or not.” It appeared that two days after the murder .■a double-barreled gun was found in a lot near the place where the murder was perpetrated, which, in some respects at least, answered to the description of a double-barreled gun which the defendant, a short time before, had procured from his brother at a place called Jump-off-
“ Relevancy is that which conduces to the proof of a pertinent hypothesis. Hence it is relevant to put in evidence any circumstances which tend to make the proposition at issue more or less probable.” (Whart. Ev., secs. 20, 21; Whart. Crim. Ev., secs. 23, 24.) In Trull v. True, 33 Me. 367, it was held that “ testimony cannot be excluded as irrelevant which would have a tendency, however remote, to establish the probability or improbability of the fact in issue.” It is a fundamental rule of evidence, applicable to all trials, that the evidence must he confined to the point in issue. Its sole object is to establish or disprove the disputed facts in issue between the parties; and any evidence not adapted to that end ought not to be received, “ Had the case before us,” said Cowen, J., “ been one of improperly admitting evidence which bore in the least on the general question of guilt or innocence, no doubt a new trial should be granted.” (People v. Wiley, 3 Hill, 194.) In all such
If, therefore, the court, in refusing to allow the question asked to be answered, committed such error as affected the rights .of the accused, however slight it may have been, the conviction must be set aside and a new trial granted. The controlling and important inquiry, then, is, Was the question excluded relevant? For the better understanding of this inquiry, some preliminary statement is necessary. It appears from the record that there was evidence tending to prove that, previous to the murder, the defendant had maintained improper relations or intimacy with the wife of the deceased, and had made threats against his life; that after the murder a gun was found in a lot near the place where the murder was committed; that the person who had committed the deed had fled by an unfrequented way, leaving the imprint of his boots in the soft earth, which, by trial, were found to fit the boots worn by the defendant. Upon this state of facts, it became important for the state to trace the gun into the hands or possession of the defendant. For this purpose the state proved that a month or more before the murder was committed, the defendant had visited his brother at a place called Jump-off-Jo, some fifty miles distant from Ashland, and while there procured from him a double-barreled shot-gun, which corresponded or answered to the description of the gun-found near the place of the murder; and, to further corroborate and fix that procurement and possession of the gun by the defendant, the testimony, as to the interme
It is a mistake to suppose, as suggested by counsel,, that evidence of the disposal of the gun to another, and the evidence proposed by the question, only differs in degree; the latter fails to raise the material inference implied in the former. It seems to belong to that class of evidence, often proposed, which approaches, but does not exactly reach, the boundary line dividing the relevant and irrelevant, but which, particularly in cases of' this sort, it is freely admitted it is better and safer to receive than to reject. It is always best, in cases of' a criminal character, particularly where life is involved, that the court should adopt a liberal rather than a rigorous or technical rule in the receipt of evidence for the defense. “Whenever there is any doubt of the question,” said Baldwin, J., “ or rather, whenever the evidence proposed by the defense is not plainly admissible,, it is better to let it go in, since, in nine cases out of ten,. a single equivocal fact, of doubtful bearing on the case,. would have no effect upon the judgment of the jurors,. who are usually disposed to pass, and do pass, upon the ■ general merits.” (People v. Williams, 18 Cal. 194.) And. this seems to be the uniform language of the authorities.
In Mack v. State, 48 Wis. 287, Taylor, J., in delivering ■ the opinion of the court, said:
“ Though it be true that the judge, upon the trial of a, criminal case, should not permit the time of the court to • be wasted in hearing evidence which is entirely disconnected with and immaterial to the real issues, and which may mislead and confuse the jury, yet, on the other hand, for the furtherance of justice, and the protection of the state, a liberal rule should be adopted in the-*192 admission of evidence, and no evidence offered by the accused should be rejected when its immateriality is not clearly apparent.”
Again: “ It seems to us that in every aspect of the case it is better for the state, as well as for the accused, that the trial court should adopt a liberal course in the receipt of evidence offered by the defense; and that if the court errs, it should err in liberality, rather than in the application of technical and rigorous rules, excluding all evidence which is not clearly seen to be material.”
The next objection is to the following language of the court, added to an instruction: “ Then you may consider this as a circumstance in determining the guilt or innocence of the defendant.” It is not thought, as argued, that the court meant, or the jury understood, by this language, that innocence was to be established. Nor does the language imply such a construction; but that this was a circumstance for the jury to consider in determining whether the defendant was guilty or not guilty. It is not innocence, but guilt, that is to be proved or established in a criminal proceeding. But whether the defendant is guilty or not guilty, the jury are to determine from the facts and circumstances of the case. Cases may undoubtedly occur where the jury do not believe the defendant innocent, and yet acquit him, because the evidence fails to establish his guilt in their minds beyond a reasonable doubt.
As these are the only matters that we have deemed it necessary to consider, it follows that the judgment must be affirmed.
Concurrence Opinion
(concurring). The question asked the witness Frazer, the ruling upon which is claimed to have been erroneous, was the following: “ State whether or not you saw the defendant leaving Medford for Ashland,
The conclusion of the court that the error was harmless is formed, not from any other evidence in the case, but from the absolute weakness of the proposed evidence, viewed in the light of the general facts and circumstances disclosed by the record. This court is not unmindful of the fact that the defendant was on trial for his life, nor. unconscious of its duty to resolve, in so important a matter, every doubt upon the law in his favor. I am quite certain that if the court thought or believed that the evidence offered would, if it had been received, have tended,in the least degree, to have established the defendant’s-innocence, or to refute the proof .of his guilt, a new trial would be ordered. But the law under which the court is authorized to review adjudications in criminal proceedings provides expressly that it must give judgment, without regard to the decision of questions which were in the discretion of the court below, or to technical errors, de-
Dissenting Opinion
(dissenting). A gun was found near the scene of the murder, with which the murder was supposed to have been committed. The state had the right to show that the gun belonged to the prisoner, or to trace it to his possession. Where a prisoner was seen on the day after the burglary, near the place of the burglary, and tools with which the burglary was supposed to have been committed were found near by shortly afterwards, the prosecution was permitted to show that these tools came from the home of the prisoner, although that home was 200 miles from the place of the burglary. “ Proof that the implements used came from his home was a circumstance very proper to be submitted to the jury in con
In this case, to connect the prisoner with the gun, the state had introduced evidence to show that about the first of October, 1884, the murder having been committed on the evening of November 20th following, the prisoner made a journey from Grave Creek or Jump-off-Jo Creek to Ashland, and was seen at three different places on that journey carrying a double-barreled shotgun, described as resembling that found near the scene of the murder. No question has been made on the sufficiency of the evidence of the identity of the gun. The only question here is on the rejection of the evidence offered on behalf of the prisoner to rebut this evidence on the part of the state. The object of the evidence on the part of the state was to trace the gun to the possession of the prisoner at Ashland. An isolated fact of possession at either of the places named could not, of course, be rebutted by evidence that he did not after-wards have the gun at some other place. But that is not this case. The principle of this case is this: J. S., making a journey from A to G, is seen at B, C, and D, having a gun in his possession, and carrying it with him as he travels. At F, on that journey, he' is traveling without the gun. The gun is afterwards found at G, and J. S. is accused of using it there to commit a murder. As proof of his possession of the gun, his journey from A to G is introduced, and his possession of the gun at B, C, and D shown. In rebuttal, evidence is offered that on an after-part of that journey, to wit, at F, J. S. was traveling without the gun. It may be noted here that it is not shown that J. S., after his arrival at G, on that journey, ever after came back to the place where he was last seen with the gun. To state the case in another way: J. S., on a certain day, is seen near the
A gun carried by a traveler in an early stage of a continuous journey from one given point to another, it might be supposed, was carried by him to the end. There ought to be a right to rebut this supposition, by showing that, at a point on the route beyond any point at which he is shown to have been carrying the gun, and before the point of destination was reached, he was pursuing his journey without it. Such evidence in rebuttal is precisely of like character to that of the prosecution. “ It would seem but even-handed justice that if one party should give evidence in proof of some point of his case, of a particular character, not strictly compe
In this case, the evidence of the state was competent. Much more, then, ought evidence of like character, offered by the defendant to rebut it, have been admitted.