State v. Blodgett

• Decision Date: 17 December 1907
• Parties: STATE v. BLODGETT.
• Court: Oregon Supreme Court

92 P. 820

50 Or. 329

STATE v. BLODGETT.

Supreme Court of Oregon

December 17, 1907

Appeal from Circuit Court, Multnomah County; M.C. George, Judge.

George L. Blodgett was convicted of murder in the first degree, and he appeals. Reversed, and new trial ordered.

John A. Jeffrey, for appellant.

Gus. C Moser, for the State.

SLATER C.

The defendant by information of the district attorney was charged with the crime of murder in the first degree alleged to have been committed in the city of Portland, March 23, 1906, by killing one Alice Minthorn, commonly known as Alice Gordon. He was subsequently tried and convicted on the charge, and from the judgment entered thereon he has appealed.

The first error assigned by defendant for a reversal of the judgment is the denial by the lower court of his motion to strike out the testimony of Julia Maxwell, who gave the details of a confession made by defendant wherein he admitted that he committed the act, and gave the surrounding circumstances of the commission of the offense. The grounds of the motion were that the purported confession was not voluntary, but was made under circumstances implying coercion. Preliminary to the introduction of the confession the witness testified that she was present at the police station or city jail in Portland, on March 24, 1906, at about 11 o'clock in the forenoon, in the presence of Mr Manning, district attorney, Detectives Vaughn and Hellyer, F.L. Perkins, a news reporter, and defendant, for the purpose of taking the statement of the defendant in shorthand, which she did; that, before the statement was made, Mr. Manning asked defendant if he was willing to make a voluntary statement, and he replied that he was; that Manning then told him if he did it would be used against him in the trial of the case, and that he need not do so unless he wanted to. Then, in response to questions propounded to him by the district attorney, defendant made the statement, which was taken in shorthand by the witness, read by her to the jury, and received in evidence. No objection to the admission of the confession was made prior to its being read to the jury by the witness from her notes, but upon the conclusion of the reading defendant's counsel moved that all of the confession be stricken out for the reason that it was not voluntarily made. It is now contended on the part of the state that, the testimony having been received without objection, the motion to strike out comes too late.

On the offer of a confession, the court is to determine whether or not it was made under the influence of hope or fear. This inquiry is preliminary to the admission of the evidence, and is addressed entirely to the judge. State v. Moran, 15 Or. 265, 14 P. 419. And the determination of the court on a criminal trial that a confession was obtained from him without the influence of hope or fear exercised by a third person will not be disturbed on review, unless there is clear and manifest error. State v. Rogoway, 45 Or. 601, 78 P. 987, 81 P. 234. It would seem, therefore, that, if defendant should have any reason to claim that the alleged confession was involuntary, he should present his objection when the offer is made, and, before the conclusion of the preliminary hearing, offer such testimony, if he have any, to support his objection and to rebut that offered by the state, or, upon his failure to do so, be precluded from thereafter objecting. "A majority of the authorities hold that it is the duty of the court to refuse to strike out evidence, although irrelevant and immaterial, which has been admitted without objection at the time it was offered." 12 Cyc. 565. But there are manifest exceptions to this rule, as where a question does not apparently call for improper evidence, but the answer contains evidence which is inadmissible or objectionable; and where it is not responsive or is too much in detail, or proves to be hearsay, the proper practice is to move to strike it out and to have the jury directed not to consider it. Id. 565. The involuntary character of the confession here offered is said to arise not from some independent or disconnected act of the district attorney or of the officers in charge of the prisoner, by which fear in the latter may have been induced, which acts may have been shown by preliminary proof, but from the substance and form of the confession itself, and hence could not be shown or passed upon by the court in advance of the statement of the confession. Assuming, but not deciding, that this case comes within the exception, and that the motion to strike out was available to the defendant notwithstanding the absence of any previous objection, the confession was clearly voluntary, and therefore admissible.

The basis of the objection is that the confession was made in response to peremptory and accusatory questions addressed to defendant by the district attorney which destroyed its voluntary character. The most prominent and striking questions, and the replies, were in part as follows: "Q. I want to know the true name of this girl you killed? A. Her name is Alice--Alice Shoenberg, or such a name. Q. How old a man are you? A. Forty-two years old, 26th of last September. Q. How old was this woman you killed? A. She claimed to be 32 years old. Q. Was she ever married, that you know of? A. She married a man by the name of George Minthorn. *** Q. How long did you know this girl you killed? A. I met this girl a year ago last October, 1905, in Helmville, Mont. Q. What was she doing when you met her? A. She was performing and singing on the stage. Q. What were you doing at that time? A. I was running a saloon at Columbia Falls Cut-Off." Following these questions, and in response to the question, "How did you happen to meet her?" defendant, without any apparent restraint, gives a free and frank statement not only of how he happened to meet the deceased, but also a history of their meretricious and unlawful cohabitation from that time, interspersed with their quarrels and encounters, to the time of the tragedy, which occurred in an upstairs room of a hotel in Portland where deceased had been staying. At this point in the story he is asked by the district attorney, "How did you come to quarrel with her this last time?" in response to which he gives a minute circumstantial statement of what transpired between them during three or four days immediately preceding the killing, as well as of his drinking and visiting saloons that morning in company with a friend, Malloy. He concludes this recital by saying: "Finally I says to him, 'I will be back in about 15 minutes. I am going up to the room, and I will be back.' I said, 'I am going to ask Alice to have a drink, and if she refuses I am going to kill her.' I went up, and I guess you know what happened." "Q. Now, what did happen? A. They say I killed her, and I guess I did." Then by a series of questions all the details of the killing were brought out. The foregoing will give a fair idea of how the confession was obtained and its form.

A confession is admissible when voluntarily made to a public officer, even though the prisoner be in custody of such officer, unless the confession be in some sense elicited by threats or promises ( State v. McDaniel, 39 Or. 161, 65 P. 520); and a prisoner's confession will not be rejected as evidence, merely because it was made in answer to a question which assumed his guilt (Wharton's Criminal Evidence [9th Ed.] §§ 662, 663; 12 Cyc. 468). Confinement or imprisonment is not in itself sufficient to justify the exclusion of a confession if it appears to have been voluntary and was not obtained by putting the prisoner in fear, or by promises. Sparf v. United States, 156 U.S. 51, 15 Sup.Ct. 273, 39 L.Ed. 343; Wilson v. United States, 162 U.S. 613, 16 Sup.Ct. 895, 40 L.Ed. 1090. So, then, there must some accompanying circumstances calculated to produce fear, other than the mere fact that it was made in a prison where the prisoner was in legal custody, or that it was made to a public officer, or that it was made in answer to questions that assumed his guilt. There is no evidence of any such other circumstances here. The warning given by the district attorney to the prisoner before he addressed any questions to him, to the effect that whatever he said would be used against him and that he need not make any statements unless he desired to, overthrows any possible inference of duress that might otherwise be drawn from the form and manner of the questions afterwards put to the prisoner. And this fact distinguishes this case from such cases as Bram v. United States, 168 U.S. 532, 18 Sup.Ct. 183, 42 L.Ed. 568, where the court were divided upon the admissibility of the confession, and the cases of State v. Auguste, 50 La.Ann. 488, 23 So. 612, and Parker v. State, 46 Tex.Cr.R. 461, 80 S.W. 1008, 108 Am.St.Rep. 1021, cited by counsel for defendant in support of his contention. In the last case mentioned there was not only an absence of warning, but the defendant was apparently tricked into making inculpatory admissions by artfully propounded questions in the form of a cross-examination. No error was committed by overruling defendant's motion.

It is next insisted that the district attorney, when addressing the jury in the first argument, on behalf of the state, upon the merits of the case, abused the right of argument by adverting to matters not in evidence, and not proper to be considered by reflecting and commenting upon defendant's general character, when the same was not in issue, by insinuating that defendant is guilty of other crimes, and by expressing his personal opinion that defendant's witnesses had committed perjury, all to the injury of his substantial rights and over his objections. No attempt was...