State v. Bowker

• Decision Date: 13 November 1894
• Citation: 26 Or. 309,38 P. 124
• Parties: STATE v. BOWKER.
• Court: Oregon Supreme Court

38 P. 124

26 Or. 309

STATE v. BOWKER.

Supreme Court of Oregon

November 13, 1894

Appeal from circuit court, Multnomah county; M.G. Munly, Judge.

Charles A. Bowker was convicted of manslaughter, and appeals. Reversed.

E Mendenhall and J.L. McGinn, for appellant.

Geo. E Chamberlain, Atty. Gen., and W.T. Hume, Dist. Atty., for the State.

BEAN C.J.

The defendant was jointly indicted with one Mrs. Vann for the crime of manslaughter, alleged to have been committed by means of a criminal abortion upon one Helen Wilson, from the effects of which she died. The defendants demanded separate trials, and, Mrs. Vann having been first tried and convicted, her conviction was given in evidence by the state on the trial of the present defendant. Apprehending an unfavorable inference from this evidence, and desiring to avert any injurious consequence which might result to the defendant therefrom, his counsel requested the court to instruct the jury that "it does not follow that, because the defendant Vann has been convicted of the crime charged the defendant C.A. Bowker is guilty." This the court gave, with the following qualification, "But this fact may be taken into consideration with the other circumstances of the case." The giving of the instruction as thus modified is assigned by the defense as error. If we do not misapprehend the view of the trial court, as indicated by this instruction, it was of the opinion, and intended the jury should understand, that the conviction of Mrs. Vann was competent evidence tending to show defendant's guilt. This must have been what it meant, or the instruction requested by the defendant would not have been modified in the manner stated. The court evidently was of the opinion and intended to instruct the jury, that, while the guilt of the defendant did not follow as a necessary consequence from the conviction of his codefendant, yet they might properly consider such conviction, along with the other evidence in the case, as tending to show his guilt. But in this the court was in grave error. Although jointly indicted, the crime with which the defendants were charged was in its nature several, and one of them could have been acquitted, and the other convicted. Competent and satisfactory evidence against one was not necessarily so as against the other; and no rule of law is better settled than that, where two or more persons are jointly charged in the same indictment with the commission of a crime which is in its nature several, each must be tried upon the evidence legally tending to show his guilt or innocence, without reference to the disposition of the case against his codefendant, and the confession or conviction of one, either by plea of guilty or upon the testimony, cannot be used as criminating evidence against the other. Whart.Cr.Ev. § 699; Klein v. People, 31 N.Y. 229; People v. McQuade, 110 N.Y. 284, 18 N.E. 156; State v. Weasel, 30 La.Ann. 919; Rufer v. State, 25 Ohio St. 464; People v. Stevens, 47 Mich. 411, 11 N.W. 220; Lyon v. State, 22 Ga. 399. Under any other rule the guilt of a defendant jointly indicted with another, if he should happen to be tried subsequent to his codefendant, might depend upon the result of a trial over which he had no control, to which he was not a party, and in which he had no right to appear or make a defense. The district attorney argued that all the court meant by the instruction complained of was that the conviction of Mrs. Vann, who was a witness for the state, might be considered by the jury as evidence affecting her credibility. But we are unable to so understand the language used. The court was not instructing the jury on the weight of the evidence, or the credibility of witnesses, at the time this instruction was given, but as to the effect of Mrs. Vann's conviction as an element in the case against the defendant; and the jury must have understood the instruction to authorize them to consider such conviction as evidence tending to show his guilt. This, in our opinion, was error, for which the cause must be reversed.

2. There being evidence on the trial from which the jury might properly find that the defendant and Miss Wilson had been criminally intimate, defendant's counsel requested the court to instruct the jury that, "even if the jury find that the defendant C.A. Bowker had criminal intercourse with Helen Wilson, you cannot convict him of the charge in the indictment," which the court gave; adding thereto however, "but the fact that the defendant had criminal intercourse with the deceased is a fact to be taken into consideration, together with the other circumstances of the case, in determining the question of guilt." Upon the same matter the defendant's counsel also requested the court to instruct the jury that "even if the jury find, beyond a reasonable doubt, that, before Helen Wilson went to Mrs. Vann's to have the alleged criminal operation performed, she and the defendant Bowker had sexual intercourse, but have a reasonable doubt as to whether the defendant sent or had Helen Wilson go there for that purpose, you must find the defendant not guilty." The court refused this instruction as asked, but gave it with this qualification: "But the circumstance that Helen Wilson and the defendant had sexual intercourse, as I stated before, is a question which you have a right to take into consideration, together with other testimony in the case, in making up your verdict." We are of the opinion that each of the instructions above referred to, as given by the trial court, is obnoxious to the objection made by defendant's counsel that they assume as a fact the criminal intimacy of the defendant and Helen Wilson. This was an important question in the case, and, while there was ample evidence from which the jury could have found such relation to have existed, it was not an admitted fact; and the question was therefore for the jury, and not the court. Language of this kind, when used by a court before a jury, in reference to a contested question of...