State v. Saunders

12 P. 441, 14 Or. 300, 1886 Ore. LEXIS 103

• Court: Oregon Supreme Court
• Decided: December 16, 1886
• Status: Published

Opinions

Thayer, J.

The appellant was indicted, tried and convicted of murder in the first degree, before the circuit court for the county of Linn. From that conviction he has appealed to this court, and alleges several grounds of error, for which he claims the judgment should be reversed and a new trial granted. The main errors assigned are: First, The admission of the .dying declaration of the party whom he is alleged .to have murdered. Second, Permitting improper questions to be asked the appellant when on the stand as a witness in his own behalf, and compelling him to answer them. Third, Erroneous instructions given by the court to the jury in regard to the manner of their deliberations, of the necessity of their agreeing upon a verdict, and remarking to them in the charge that they would be kept together until they had agreed upon their verdict: and, Fourth, error in the court in overruling certain challenges made for cause to certain of the jurors drawn to try the .appellant upon the charge. We have examined these various grounds with considerable care, and will briefly state the conclusions at which we have arrived.

In regard to evidence of dying declarations in such a case, it is contended by the appellant’s counsel that they are not admissible at all, in view of the constitutional immunity that a party accused of an offense shall have the right to be confronted by the witnesses against him, and that, if receivable at all, it must be in a case where no other evidence of the killing is obtainable ; that their admission as evidence is only upon the ground of necessity, which did not exist in this case, as the killing was admitted. This character of testimony has been regarded as competent for a very long time, long before the adoption of the constitutional guaranty in favor of accused parties above referred to, and has universally been admitted since; and we could not determine that the bill of rights contained in the constitution of this state had changed the rule, without exhibiting great arrogance upon our part. The appel.lant’s counsel seemed to think that the declaration that “ in all criminal prosecutions the accused shall have the right to meet the witnesses face to face,” could have been nothing less than that they should be living and present in court when their testimony is delivered. But the right to offer that character of proof is not restricted to the side of the prosecutor ; it is equally admissible in favor of the party charged with the death. (1 Green’l Ev., Sec. 159.) The objection to it, therefore, might, if sustained, operate very injuriously to an accused, and the clause in the bill of rights, if construed as the counsel contended it should be, have the effect to deprive the latter of an important right. The rule, although sanctioned by constitutional declaration, like all general rules, lias its exceptions. It does not apply to such documentary evidence to establish collateral facts, as would be admissible under the rules of the common law in other cases. Cooley Const. Dim., note 2, 818, and the exceptions to it, as Judge Cooley says, “ are of cases which are excluded from" its reasons by their peculiar circumstances.” The admission of dying declarations has uniformly been held to be one of the exceptions, and it would be folly for this court to attempt to overthrow the numerous decisions to that effect.. There being other evidence of the killing would not necessarily preclude the admission of such declarations. They are admitted upon the presumption that there is no other evidence as satisfactory; though, doubtless, the origin of the rule was the inability to prove the act by any other testimony. The trial judge has so much better opportunity than this court to determine questions of that character, that it would not be proper to interfere with the decision of the former, unless a clear case of error is shown to have been committed.

Complaint is made, also, that the declarations of the party slain in the present case were not as to facts entirely, but embraced conclusions—that part of them, particularly, in which the deceased said : “ He shot me down like a dog.” Declarations of a party in extremis, in order to be admissible, must be as to facts and not conclusions. They are permitted as to those things to which the deceased would have been competent to testify, if sworn in the case. (1 Green’l Ev., Sec. 159.) But I do not think the expression of the deceased a conclusion. It was given as a part of his narrative relating to the affair, and I think it was merely intended to illustrate the lack of provocation and the wantonness in which the appellant did the act. It was descriptive of the manner in which the act was committed. It conveyed the idea that the appellant disregarded the claims of humanity, and, without giving him any warning, wantonly shot him. It was the statement of a fact made by way of illustration.

The overruling of certain of appellant’s challenges to jurors called to try the cáse, is another question left largely to the discretion of the presiding judge at the trial, Cases of homicide are calculated to create excitement and comment; and where information is so readily and generally diffused throughout the entire community as in this age of newspapers, the acts and circumstances attending such an affair are liable to be known and understood extensively. It becomes difficult, therefore, to select a jury in a community where it has occurred without drawing jurors who know more or less about the case. The person accused of a crime is entitled to a fair and impartial trial; but does it necessarily follow, because men read and are informed in regard to the current events of the day, that they are thereby disqualified to act as such jurors ? This depends much upon the credulity of the persons, and the tenacity with which they adhere to preconceived notions. It hardly seems possible that a sensible person would allow impressions from such a source to affect his deliberations and verdict as a juror in so important a matter. The judge who tries the case determines the sufficiency of the challenge to the juror. If made, as in this case, for actual bias, and denied by the opposite party, testimony is given upon the question, and upon that .testimony the sufficiency of the challenge is determined. The point to be determined is, whether there exists such a state of mind upon the part of the juror in reference to the party challenging, that he cannot try the case impartially and without prejudice to the party’s substantial rights; and •this, the statute says, must be determined by the exercise of a sound discretion. The evidence in this case upon the question of .the qualification of the jurors challenged, showed that they had, to some extent, formed an opinion as to the guilt or innocence of the accused, which they said would require evidence to remove, but .thought they could try the case impartially. The trial judge.heard their testimony, had an opportunity.to observe .their.manner., and deemed them qualified to sit in the case. Unless, therefore, we conclude there has been an abuse of discretion, we have no right to interfere in the decision upon that point. It was a question of fact to be determined. The impression or opinion the jurors had formed was from newspaper accounts and general rumor, and the circuit court had a better understanding of the extent of the opinion than we can obtain from the bill of exceptions. This court ought not to reverse a judgment upon such grounds, unless the evidence of the juror’s incompetency is pretty clear and certain—at least, shows some cogent circumstances against it—circumstances of a nature calculated to impress upon the mind of the juror a conviction, such as having heard the testimony in the case, read a detailed statement of it, or been told it by some one claiming to know.

The objection to the instructions to the jury, as to their duties—telling them the effect of a disagreement at common law, and of how juries were kept together until they did agree; the mitigation of the rule in the United States; and remarking to them that they would have to remain together, and could not separate until they agreed on a verdict, and brought it into court—cannot be entertained. It was proper for the court to inform the jury respecting their duty ; advise them how they should consider the matter before them, and the course to pursue in reaching a conclusion. Nor should the concluding remark in the charge be construed as any determination to keep them together until they had agreed; or an indication that the case in the mind of the court was so plain that they would not be justified in failing to agree. The court was evidently endeavoring to administer the law fairly and honestly, and I am satisfied that the apprehension of counsel that the course pursued was improper arises from a zeal for their client, and an over-zealousness that his rights under the law have been disregarded. The court had a responsibility to discharge, and so far as anything appears in the transcript, did it conscientiously. The jury must have understood that they would be discharged if not able to agree, from what the court expressly told them.

The next and last ground of error involves the right of the attorney of the state to examine the appellant while on the stand as a witness. This presents the most serious question in the case, by far. It appears that the appellant offered himself as a witness in his own behalf, and testified to the circumstances of the killing. After having given in his evidence upon that point, the state’s attorney asked him the following questions : “ Did you not kill a man in Texas before coming here ? ” “ IIow often have you been without it [referring to a pistol] within the last six months ? ” “ Was it not true that when at Corvallis you were at target practice most of the time?’’ “ You are a center shot?’’ To each of which questions the appellant’s counsel objected, upon the grounds that it was improper, immaterial, incompetent, and not cross-examination. The court overruled the several objections J and required the appellant to answer the questions, and he made qualified affirmative answers to them all, To each of the rulings upon the admissibility of this evidence, the appellant’s counsel saved an exception.

The discussion of these exceptions has taken a wide range. Authorities from a number of the states have been cited, to show that when a defendant in a criminal case becomes a witness in his own behalf, he subjects himself to the same liabilities on cross-examination as other witnesses. In support of this proposition, counsel for the state have cited decisions from Maine? New Hampshire, New York, Iowa, Missouri, Nevada, Connecticut, Maryland, Massachusetts, and perhaps other states ; at least, they could have cited decisions from Indiana and probably from Minnesota, to the same effect. I have examined the statutes of several of those states, and so far as I have been able to ascertain, have found that they provide that the defendant is entitled to offer himself generally as a witness in his own behalf, and no restriction is placed upon the extent of the cross-examination. The statute of this state, which permits a defendant in a criminal case to offer himself as a witness in his own behalf, provides that the offer, when so made, shall be deemed to have given to the prosecution a right to cross-examine him upon all the facts to which he has testified, tending to his conviction or acquittal. (Laws, 1880, pp. 28, 29.) The question, therefore, is, how far he subjects himself to cross-examination under that statute. It is very likely that if the statute contained no limitation as to the extent of the cross-examination of a defendant in such a case, he would occupy the same footing of any other witness, if he chose to take the stand; although some of the decisions from the states in which no limitation is imposed upon the cross-examination hold, that the cross-examination of a defendant in such a case should not then be allowed the same latitude permitted in cross-examination of a witness not a party defendant. The ground of the distinction was an apprehension that the defendant in such case might be convicted of one offense, upon his admission that he had committed others. (People v. Brown, 72 N. Y. 571.) It seems to me that this distinction is very properly made, conceding that an ordinary witness may be interrogated upon his cross-examination as to whether he has not committed other offenses that cannot affect him beyond his credit in the particular case, unless it expose him to prosecution, and then he can claim his privilege. But as regards the party accused, such examination operates as a two-edged sword; it would not only impair his credit as a witness, but create a strong prejudice in the minds of the jury against him, and be a material aid towards convicting him. Unless, therefore, a defendant in a criminal prosecution is “ pure as the icicle which hangs on Di-an’s temple,” he liad better keep off the witness stand, if the prosecution is at liberty to ransack his past life. Place a person on trial upon a criminal charge, and allow the prosecution to show by him that he has before been implicated in similar affairs—no matter what explanation of them he attempts to make—it will be more damaging evidence against him and conduce more to his conviction than direct testimony of his guilt in the particular case. Every lawyer who has had any particular experience in criminal trials knows this; knows that juries are inclined to act from impulse, and to convict parties accused upon general principles. An ordinary juror is not liable to care about such a party’s guilt or innocence in the particular case, if they think him a scapegrace or vagabond. That is human nature. The judge might demurely and dignifiedly tell them that they must disregard the evidence, except so far as it tended to impeach the testimony of the party; but what good would that do ? And it is not at all improbable that he himself would imbibe some of the prejudice which proof of the character referred to is liable to engender. Such a practice would necessarily prevent the party accused from ever offering himself as a witness, which would leave the jury to conjecture and speculate why he pursued such a course; and often, very probably, they would draw an unfavorable inference from the circumstance.

The legislature of this state evidently believed, when it adopted the act referred to, that the cross-examination of the defendant should be restricted. No one will claim, who reads the act, but that such restriction was intended. The question, however, is, how far it extends. Counsel for the state insists that it extends no further than to prevent the prosecution from compelling the defendant to be a witness against himself ; that lie may be required to answer any questions that will cast discredit upon his testimony, without overstepping the limit imposed by the legislature. But how can he testify to his own infamy, as we have shown, without prejudicing his defense, and furnishing an argument in favor of his guilt ? If he were shown to be a person who had been guilty of similar acts, whose history was marked by a career of crime, and who had been a constant violator of the law, would it not render it more' probable that he was guilty in the particular case ? And why not follow the plain reading of the statute, and its obvious meaning ? It says that when he offers his testimony as a witness in his own behalf, “ he shall be deemed to have given to the prosecution a right to cross-examine him upon all facts to which he has testifiedThere is no mistaking the intention of the legislature in the matter. It permitted the defendant in a criminal prosecution to be a witness in his own behalf, and subjected him to a cross-examination as to the facts to which he should testify : and the courts cannot extend the right beyond that. Three of the states of the Union have adopted similar provisions—California, Missouri and Michigan—and their courts have construed them.

In People v. O'Brien, 66 Cal. 602, the accused, in a prosecution for embezzlement, offered himself as a witness. Upon his examination in chief, his testimony was confined to the alleged embezzlement; but upon cross-examination he was examined generally as a witness in the case, which course was objected to by his counsel. The Supreme Court in bank, after referring .to an article in the constitution of that state, which declares that no person shall be compelled in any criminal case to be a witness against himself, and to the statute which provided that, if he offered himself as a witness, he might be cross-examined as to all matters about which he was examined in chief, held that it was only under and by virtue of that provision that the defendant in such a case could be a witness at all; and that when called in in his own behalf, and examined respecting a particular fact or matter in the case, the right of cross-examination was confined to the fact or matter testified to on the examination in chief; that such was the express language of the statute ; and that when the court allowed the prosecution to make the defendant a general witness in its behalf, it invaded a right secured to the defendant, not only by the statute but by the constitution.

In State v. Porter, 75 Mo. 171, 177, in determining asimilar question under a late statute of that state, the court says : “ The court erred in permitting the state’s attorney to cross-examine the defendant in relation to matters to which he did not testify in his own examination in chief. Under the act of 1877, it was held in State v. Clinton, 67 Mo. 380 ; State v. Cox, Id. 392; State v. Rugan, 68 Mo. 214 ; and State v. Testerman, 68 Mo. 408, that if a defendant in a criminal cause availed himself of' the privilege of testifying in his own behalf, the same latitude of cross-examination would be allowed the state as in the case of any other witnesses ; but that act was amended at the last session of the general assembly, and he now can be cross-examined only as to matters testified to by him in his ex-animation in chief. In Gale v. People, 26 Mich. 157, where it appears a defendant had made a statement in a criminal prosecution against him, in accordance with the laws of that state, and upon which the prosecution was entitled to cross-examine him, a similar question was determined. In passing upon the case, Judge Cooley, who delivered the opinion of the court, at page 159, said : “ A more serious question arises upon the cross-examination of the defendant. His statement covered the whole case, and he was cross-examined on it without objection. The prosecution then, after inquiring about the former place of residence of respondent, produced several letters in view of the jury, and from what they purported to contain, interrogated the respondent whether he had lived or been in a number of places named, and whether at one place he had not been arrested on a charge of murder, and at others also had been arrested, and at others still, been put in jail. All these questions were objected to, but sustained by the court, and were answered. The court, however, informed the prisoner, after the first had been put and answered, that it was his privilege to answer any question, or to decline to answer, just as he saw fit. If the questions were improper, it must be apparent that the error was not cured by the instruction to the prisoner that he might decline to answer at his option. When the judge sustained the exceptions, he decided, in effect, that they were proper to be put and answered; and had the prisoner declined to answer any of them, he would have been put in the position before the jury, of coming upon the stand in his own exculpation, and then refusing to make his disclosure as full as the law required. An unfavorable inference upon the minds of the jury must inevitably have been produced, which in this case would have been increased by the exhibition of letters, brought out before the jury for no purpose that we can conceive, unless to convey an impression that they contained damaging disclosures regarding the prisoner, which he must either admit, or falsify the facts. If, therefore, the questions were improper in themselves, the error was a serious one ; and we have no doubt of their impropriety.”

The statute provides that the defendant in a criminal case shall be at liberty to make a statement to the court or jury, and may be cross-examined upon any such statement; and after referring to People v. Thomas, 9 Mich. 321, where it was held that a cross-examination on such a statement would not be allowed to go beyond it—could not extend over the entire issue, as it might if he were a general witness, or into any of the collateral inquiries whereby a witness’s credit or merhory is sometimes tested; and after expressing an approval of that case, the learned judge proceeded: “ We have frequently had occasion to remark on the beneficent purpose which the statute of 1861 had in view, and to observe that, practically, it had tended to the furtherance of justice ; but it can only have this effect when administered in the spirit which led to its adoption. Few men, however innocent, could safely go upon the stand to answer a criminal charge, if they must at their peril be prepared to give satisfactory answers to questions regarding their whole former life, or if they declined to do so, have their triers informed that the information they declined to give it was proper for the prosecution to call out, and that the refusal to respond to the questions justly subjected them to unfavorable inferences. Such would be the practical result of a refusal to answer an interrogatory which the court had sustained after objection made.”

This court, at the March term, 1885, had occasion to pass upon the effect of this same statute, in the case of State v. Lurch, 12 Or. 99. That was a case of uttering a forged note. The defendant offered himself as a witness, and after his examination in chief, the state’s attorney asked him to write his name and that of the other party to the note which he was alleged to have forged, and the court required him to do so, against the objection of his counsel. This court held that it was error, and reversed the judgment, upon the grounds that the prosecution in its cross-examination was confined to the matters to which the defendant had testified.

It is claimed by the appellant’s counsel, that the questions propounded to appellant when on the stand as a witness could not properly have been put to a general witness. That matter was pretty thoroughly considered by the court in State v. Bacon, 13 Or. 143. The court there held that it was in the discretion of the trial court to permit a witness to be asked on cross-examination whether he had ever been arrested for a felony, when the object of the question was to test the credibility of the witness, and not simply to disgrace him. Whether the questions asked the appellant before referred to tended to discredit him, is very doubtful to my mind. It seems to me that they were more calculated to elicit from him a state of facts tending to show that he was a kind of man that would be likely to commit a homicide ; but be that as it may, I am satisfied that the counsel for the state had no right to ask the questions, as the appellant had not testified to any such facts. The inquiry related to a purely collateral matter, and was highly prejudicial to the appellant. The right to call out such evidence gave the prosecuting attorney the right to comment upon it, and to draw inferences aud deductions therefrom ; and no character of proof, in my opinion, would be more potent to influence a conviction than that. I think it was entirely improper to permit such inquiries to be made, and for that reason the judgment of conviction should be reversed, and a new trial ordered.