State v. Armstrong

• Decision Date: 19 October 1903
• Citation: 73 P. 1022,43 Or. 207
• Parties: STATE v. ARMSTRONG.
• Court: Oregon Supreme Court

73 P. 1022

43 Or. 207

STATE v. ARMSTRONG.

Supreme Court of Oregon

October 19, 1903

Appeal from Circuit Court, Baker County; Robert Eakin, Judge.

Pleasant Armstrong was convicted of murder, and he appeals. Affirmed.

M.M. Godman and Geo. J. Bentley, for appellant.

Samuel White, Dist. Atty., and A.M. Crawford, Atty. Gen., for the State.

WOLVERTON J.

The defendant appeals from a judgment of the circuit court rendered upon a verdict convicting him of murder in the first degree. There are three principal assignments of error touching the rulings of the trial court, namely, in refusing to grant a change of venue, in disallowing defendant's challenge for cause to certain jurors, and in orally commenting upon and explaining certain instructions given in writing at the request of the defendant. Other assignments are noted, but are not especially insisted upon, and need but casual examination.

The crime of which defendant was convicted was committed December 25, 1902. Upon being arrested soon after, he was confined in the county jail at Baker City until about the 2d of March 1903, when he was removed therefrom in anticipation of a raid about to be made upon the jail by a body of men with the evident purpose of taking him therefrom and lynching him. The removal was in pursuance of an order of the judge of the circuit court, made upon the motion of the district attorney, and the defendant was confined at Portland until the 20th of March, when he was returned to Baker City for trial. Thereupon the defendant, by his counsel, moved for a change of venue to Umatilla county on account of the prejudice existing against him in the Eighth Judicial District. The motion is based upon the affidavits of defendant, his counsel, and others, showing that deceased was a teacher in the public schools, and well and favorably known throughout Baker county; that the people and citizens of all parts of the county had become much incited and incensed against defendant on account of the alleged offense, and had made numerous threats against his life; that on the night of March 2, 1903, a body of from 100 to 150 armed and masked men gathered at the county jail, with the avowed purpose of lynching the defendant, and demanded his person in the name of the taxpayers; that there existed a strong prejudice in the minds of the people of Baker, Union, and Wallowa counties, engendered by sensational and inflammatory articles printed in the local newspapers and elsewhere; that it was deemed unsafe to proceed with the trial in Baker county because, as defendant was informed and believed, should any other verdict than murder in the first degree be rendered, the citizens of the county, in pursuance of their threats, would hang him, or he would be shot in the courtroom; and that a jury free from prejudice against the defendant, before whom he could expect to secure a fair and impartial trial, could not be obtained in the county. It was further shown that threats had been made against one of the attorneys for defendant, to the effect that, unless defendant was speedily tried and convicted, he (the attorney) would be summarily dealt with, and, by the affidavits of persons from different localities of the county, that a deep-seated prejudice existed in their respective localities and throughout the whole county against the defendant. A copy of but one of the newspaper articles alluded to was appended to and made a part of the affidavits. This purports to detail the facts and circumstances attending the attempted lynching. Among other things, it is related that the original nucleus of the mob came from North Powder and vicinity, and arrived at Baker City in small parties, at different times during the day and evening, consisting in all of from 60 to 75 men, being for the most part miners, ranchers, and railroad men, who were acquainted with the family of the murdered girl; that the mob was augmented to something like 200 by persons from the usual crowd of patrons of the all-night places; that the attempt of the North Powder people to take the law into their own hands was probably suggested by the action of the court in postponing the trial until March 23d, and that the bitter feeling on the part of the neighbors of the murdered girl was greatly intensified by the report that counsel for Armstrong would try to create sympathy for him at the trial by attempting to prove a mutual understanding between Armstrong and Miss Ensminger to commit suicide together because of parental opposition to their marriage. The state filed in refutation of the above proofs the affidavits of numerous citizens of the county, all deposing to the effect that they had long been residents of the county; that they had frequently conversed with citizens from all sections thereof, and were familiar with the feelings and sentiment of the people toward the defendant, and that whatever prejudice or bias there might exist against him in Baker county was confined to the immediate locality of the tragedy and to the family of the deceased and their immediate friends and acquaintances; that Baker county is large and populous, and divided by mountain ranges into small and diverse neighborhoods, which have but little intercourse one with the other; and that in the opinion of the affiants a fair and impartial jury, without prejudice against the defendant, could be obtained within the county. Upon this showing the court overruled the motion for a change of venue, and required the defendant to go to trial, of which he complains.

It is a fundamental principle that the accused in cases of felony is entitled to a trial by an impartial jury, and, if it cannot be had in the county where the offense was committed, the statute accords him a change of venue, so that he may have such a hearing as the constitution guaranties. It is self-evident that an impartial trial cannot be had where an unprejudiced jury cannot be found, and, if the conditions are such that the entire people of the county, or a large proportion of them, are so excited and incensed against the accused that the selection of a jury free from such influences and bias could not be reasonably expected therein then the accused should have the benefit of a change of venue, as otherwise there would be a clear disregard of his constitutional right. Such conditions, if they exist, may be made to appear by affidavit, which mode was appropriately adopted in the case at bar. It is settled law in this state, and elsewhere under similar statutes, that the allowance of a change of venue is largely, if not exclusively, a matter for the exercise of the sound discretion of the trial court. This discretion, however, is judicial in its character, and is subject to be reviewed for an abuse thereof, where palpable injustice has been done. State v. Pomeroy, 30 Or. 16, 19, 46 P. 797; State v. Savage, 36 Or. 191, 60 P. 610, 61 P. 1128; State v. Humphreys (Or.) 70 P. 824. It is admitted there was an attempt to lynch the defendant, which is sufficient in itself to show the existence of a bad state of feeling against him within the county; but, if the newspaper report made a part of the showing is to be credited, the nucleus of the mob (and it can be designated by no better or more appropriate term, because it was an unlawful and intolerable assembly, purposing to override the laws intended for good government) originated in the vicinity where the tragedy was enacted, and was augmented by a class that usually patronizes the all-night resorts supposedly in and about Baker City, the place of trial. This does not show a general uprising of the people throughout the county, incensed by the commission of the crime, but rather that it was confined to residents of the immediate vicinity where it was committed, and others from the local haunts referred to; so that the body of the county in general was not shown thereby to be infected by ill will or prejudice against the defendant. True, it is asserted by the affidavits that such prejudice did exist among the people throughout the county to such an extent that the defendant could not expect a fair and impartial trial by a jury selected therefrom, but this is refuted by many affidavits on the part of the state, showing that in the opinion of the affiants a fair and impartial jury, free from bias or prejudice, could readily be obtained. It is further asserted that the alleged prejudice is the result of sensational and inflammatory articles published in the local newspapers at Baker City and elsewhere. But none of these articles are set forth, either by copy or exhibit, except the one giving an account of the attempted lynching, which appears to be a calm and dispassionate narrative of the facts pertaining thereto, published as a matter of news, without any attempt to stir up prejudice or manufacture public opinion, either for or against the accused. There was apparently no effort or design, even inferentially, to prejudice the cause of the defendant, or to declare what should be his fate, or to indicate to the public or those who might be called upon to dispense justice what their verdict should be in the premises. Some threats, it appears, had been made to deal with the defendant summarily if he was not convicted of murder in the first degree, and to visit punishment upon one of his counsel unless a speedy trial was had and conviction ensued. But the source of these threats was not disclosed, and it is not shown that they were the promptings of public sentiment existing within the county against the accused, so that it would probably affect or vitiate the minds of any jury that might be obtained therein. These circumstances, together with the fact that a jury was obtained from a part of the regular panel and a special venire of 40 men,...