199 P. 169 | Or. | 1921
Lead Opinion
The first assignment of error relates to the refusal of the court to grant a change of venue. The defendants presented affidavits tending to show that deceased was a man of exceptionally high character and well regarded in the community, with a wide acquaintance, having been sheriff of the county for many years; that subsequent to the homicide many of the citizens of Pendleton and vicinity joined in a posse to capture defendants and the other persons implicated in the homicide; that when captured and returned to the county jail a large concourse of people gathered at the jail; that their numbers were such as to lead those in charge of the prisoners to fear that the latter would be lynched by a mob; and that two of the defendants, but neither of these, were threatened, beaten and ill treated by persons having them in charge, in order to force them to con
The fifth assignment is predicated upon a ruling of the court permitting the grand jury “to testify in the presence of the jury as to statements made by co-defendants not on trial, which statements were made before the grand jury.” Counsel for defendants are evidently laboring under a misapprehension, as a careful examination of the transcript discloses that no such evidence was given in the presence of the jury. There was a preliminary examination of witnesses before the court without the presence of the jury, to determine the competency of certain admissions alleged to have been made by the defendants, and in this preliminary examination reference was made to declarations made before the grand jury.
“I warned him in the presence of Mr. Hutchinson here and I had requested Mr. Hutchinson prior to that time to be present when these people came up for fear they might try to take some advantage of me, and asked him to be very careful as to what was said and I warned him at that time several times over that he did not have to go before that grand jury unless he wanted to and if he did go before the grand jury and make any statements they could be used against him in the trial of this case, and if he did go before the grand jury he had to make a voluntary statement.
“Q. Did you ever tell him at any time that it would be better for him to go before the grand jury?
“A. I never did.”
Mr. Keator further testified:
“I told Owens [Kirby] the same as I told Rathie, I warned them time and time again in the presence of Mr. Hutchinson that I was investigating the charge of killing Til Taylor before that grand jury and that they didn’t have to go before that grand jury unless they wanted to, but if they wanted to go before that grand jury they could do so, and that if they did go before the grand jury any statement which they made there must be a voluntary statement; and asked them*352 tinder the circumstances if they wanted to- make a statement and they said they did.
“Q. State whether or not, then, after being so advised, each of the defendants expressed a willingness to go before the grand jury and did go before the grand jury.
“A. They expressed themselves to the effect they were not connected with the murder of Til Taylor and wanted to go before .the grand jury.
“Q. After they had entered the grand jury room and before entering upon the testimony in the presence of the grand jury, state whether or not you further advised them regarding their rights.
“A. I cautioned them three or four times there in the grand jury room before I would allow them to make a statement and told them, each one individually as they came in, that they didn’t have to make a statement before that grand jury, but if they did it could be used against them in the trial of this case in this court and if they made a statement it had to be a voluntary statement, and I also cautioned them that they did not have to answer any questions propounded by the grand jurors unless they wanted to and they all said they understood their rights and they wanted to make a statement and they did make a statement and they were allowed to answer questions propounded by any member of the grand jury.”
That these statements were made to defendants is abundantly corroborated by the two other witnesses who heard the district attorney make them to defendants outside of the grand jury room, and by several of the grand jurors who heard them repeated after the defendants entered the grand jury room. Indeed, the defendants do not rely seriously upon any influence used to direct their will in going before the grand jury, but principally rely upon the fact that ten days prior to the hearing before the grand jury and on the evening that they were brought back to
“The extent and range of such examination is largely in the discretion of the trial court, and, as a*359 consequence, its exercise is not subject to appellate review unless a clear case of abuse or manifest injustice is disclosed. The question, then, in the present case is, whether the ruling of the trial court amounted to an abuse of its discretion. It will aid us in the determination of this question to keep in view the object of a cross-examination, and the limit within which the right may be exercised. The object of all cross-examinations is to break the force, or destroy the effect, of the testimony given by the witness on his direct examination, or to lay the foundation for the testimony of other witnesses which shall have that effect. As a means to this end, when a witness has been examined in chief, the adverse party has the right to cross-examine him for the purpose of showing the situation of the witness with respect to the parties and to the subject of the litigation, his interest, his motives, his inclinations and prejudices, his means of obtaining a correct knowledge of the facts to which he has borne testimony, and the manner in which he has used these means, his power of discernment, memory, and description, so that the jury may have the opportunity of observing his demeanor, and of determining the just weight and value of his testimony. ’ ’
See also State v. McGrath, 35 Or. 109, 114 (57 Pac. 321).
Assignment No. 14 predicates error on the admission of the testimony of the district attorney as to the statements made to and by the defendants in the grand jury room. This has already been considered and is fully answered against the contention of defendants in State v. O’Donnell, 77 Or. 116 (149 Pao. 536).
The next assignment relates to the court’s failure to direct a verdict of not guilty, and has heretofore been discussed.
Assignment No. 16 is based on the failure of the court to withdraw from the jury the question of murder in the first degree. The matter embraced in this assignment has already been passed upon and need not be further considered.
‘‘ The court instructs the jury that all evidence tending to prove or show a conspiracy on the part of the defendants on trial to take life, if any, in making their escape from the jail, is hereby withdrawn from your consideration and you must wholly disregard all evidence of any such conspiracy to kill, if necessary, in the course of a jail break, for the reason that there is not sufficient foundation proved in this case to admit testimony of the acts, declarations, or conduct of any co-conspirator as binding upon the defendants, or either of them, in this case.”
As before stated, we are satisfied that there was abundant evidence of a conspiracy on the part of defendants to take life, and the instruction was properly refused.
“If, after weighing all the testimony in this case, there exists in your minds a reasonable doubt as to whether Emmett Bancroft, alias Neil Hart, killed Tillman D. Taylor, if you find he killed him because of a personal grudge, or enmity, or whether he killed him pursuant to a conspiracy to kill, if necessary in order to break jail; provided, you also find that there was such a conspiracy; then, and in such case, you must' resolve the reasonable doubt in favor of the defendants and find them not guilty of the crime charged.”
The court gave the instruction, but added the following :
“ — unless you further find from the evidence beyond a reasonable doubt that the defendants were then and there aiding, abetting or encouraging the said Emmett*362 Bancroft [Hart] in the hilling of the said Tillman D. Taylor, in manner and form as alleged in the indictment.”
"We do not "believe that this modification in any way invaded the province of the jury. It was proper under the circumstances. If Kirby called upon Hart to shoot, he was certainly aiding and abetting in the homicide. If Rathie held Wyrick, and he admits that he did, and thereby prevented him from assisting Taylor, he was assuredly aiding and abetting in the homicide. The modification was proper.
Assignments 19 and 20 are both predicated upon the assumption hitherto shown to be fallacious, that there had been no previous conspiracy to take life proved by the state’s testimony. But, as we have already observed, the testimony of Hart corroborated by the admissions of Rathie and by a multitude of circumstances indicated that a possible or probable taking of human life was within the scope of the plan of escape, should such an act become necessary.
The next assignment challenges the constitutionality of our present statute prescribing the death penalty for murder in the first degree. A history of the enactment of this law, Section 1903, Or. L. (Olson’s Compilation), is as follows: Up to December 3, 1914, the laws of this state prescribed the penalty of death for murder in the first degree. At that date, pursuant to a vote of the people by the initiative, the statute prescribing the death penalty was repealed, and it was enacted that the maximum penalty for murder in the first degree should be imprisonment for life. On January 17, 1920, at a special session of the legislative assembly, a joint resolution was
“Section 37. [Article I.] The penalty for murder in the first degree shall be death, except when the trial jury shall in its verdict recommend life imprisonment. * *
“Section 38. All provisions of the laws of Oregon abrogated and repealed as in conflict with Section 36, which section is herein repealed, are hereby revived as of full force and effect from and after the adoption of this constitutional amendment, subject to amendment by the legislative assembly.”
On January 20, 1920, Chapter 35 of the General Laws of Oregon for 1920 was enacted with an emergency clause calling a special election to be held May 21, 1920, concurrently with the general primary election, to vote upon certain proposed constitutional amendments and statutes including the amendment above mentioned. The date of the passage of this act is erroneously given in the Session Laws of 1920 as February 20th, but a reference to the original act shows the date to be as before stated. On the same date the act in question was passed. It reads as follows :
“Section 1. Every person convicted of murder in the first degree shall be punished with death, except when the trial jury shall, in its verdict, recommend life imprisonment, in which case the penalty shall be life imprisonment; provided, however, that this act shall take effect as soon as and whenever the constitutional provisions of Section 36 of Article I of the Constitution of the State of Oregon relating to the death penalty, and any amendment or amendments thereto, will permit.” Chapter 19, Laws 1920.
“All the legislature has done in this connection has been to provide in advance a rule of action to be observed in case certain conditions arise, and it was well within its prerogative when it did so.”
See also State ex rel. v. Wilcox, 45 Mo. 458; Alcorn v. Hamer, 38 Miss. 652; Home Ins. Co. v. Swigert, 104 Ill. 653, 655.
We have thus considered every point suggested by appellants’ counsel. This consideration, it is need
The judgment is affirmed. Affirmed.
Rehearing
Denied September 20, 1921.
On Petition for Rehearing.
(200 Pac. 790.)
Mr. Charles F. Bolin and Mr. Thomas E. Wilson, for the petition.
Mr. I. E. Van Winkle, Attorney General, Mr. R. I. Keator, District Attorney, and Mr. C. Z. Randall, Deputy District Attorney, contra.
In Banc.
We have carefully considered the petition of the defendants for a rehearing and are unable to find therefrom any substantial reason for deviating from the views expressed in the original opin
The other matters urged in the petition for rehearing were carefully considered before the original opinion was handed down, and, as before remarked, we see no reason to change our views. We fully appreciate the serious consequences of our decision, but these consequences are such as the defendants have invoked by their conduct and which we cannot avert without doing violence to established principles of the law. The defendants, in our judgment, had a fair trial; and anyone who reads the record will see that they were ably and faithfully defended. So viewing the case, we are constrained to deny the petition for rehearing, and it is so ordered.
Rehearing Denied.