State v. Caseday

• Decision Date: 19 April 1911
• Parties: STATE v. CASEDAY.
• Court: Oregon Supreme Court

115 P. 287

58 Or. 429

STATE v. CASEDAY.

Supreme Court of Oregon

April 19, 1911

Appeal from Circuit Court, Grant County; Geo. E. Davis, Judge.

Joseph H. Caseday, jointly indicted for murder with Emmett Shields and others, was convicted of murder in the first degree upon a separate trial, and he appeals. Affirmed.

Joseph H. Caseday was jointly indicted with Emmett Shields, Earl Shields, Albert Green, and Ben Hinton for the premeditated murder of Oliver Snyder. The better to comprehend the situation it is proper to state that Canyon City, the county seat, is located near the center of Grant county. About 30 miles to the northwest is the village of Hamilton, and Monument is situated about 9 miles farther in the same direction. Some miles still farther on that course on the evening of December 24, 1909, in an altercation in a sheep herder's cabin, Oliver Snyder killed Arthur Green and at once fled, secreting himself in the woods on the adjacent hills. Mr. Beymer, an eyewitness, notified the officers and summoned help. The defendant, Caseday, at that time was acting as deputy sheriff, and, hearing of the homicide, took with him a justice of the peace for the purpose of holding an inquest, borrowed a gun belonging to his codefendant Emmett Shields, and proceeded toward the scene of the killing. Arriving at Monument, and learning that Snyder had given himself up, the defendant left the rifle and went on until he met some men bringing in the body of Arther Green and having Snyder under arrest. Caseday then took charge of Snyder and returned toward Monument. Soon after the defendant started from Hamilton toward Monument, the defendants Emmett Shields Earl Shields, and Albert Green went together in a buggy to Monument. On returning to Monument with the prisoner, Caseday at once sought Albert Green and found him in a saloon, took him out in the rear of the building, and had a private conference with him out of the hearing of other persons. He directed the man with whom he had left the rifle to return it to Emmett Shields. Soon after, meeting Emmett in the saloon the latter asked him for the cartridges belonging to the rifle. Casedy produced them, and, when Emmett asked him if that was all, the former ejaculated: "For God's sake! Ain't that enough?" The parties held a number of private conferences in and about the saloon in Monument and later in the evening about 8 o'clock Caseday started with the prisoner to drive to Hamilton, following two other men who took with them the body of Green. Arriving in Hamilton, all the parties stayed there until between 2 and 3 o'clock the following morning. Also in Hamilton there were frequent conferences in private between the defendant Caseday, and others of the defendants. Emmett Shields was heard to state that they would never get to Canyon City with Snyder. He and the defendant Hinton also solicited various persons to assist in hanging Snyder. There is testimony tending to show that, although Caseday had assistance in bringing Snyder as far as Hamilton, he represented to the assistant that they would stay all night in Hamilton and go to Canyon City the next day; but, disregarding that arrangement, he took the prisoner alone and left for Canyon City about 3 o'clock in the morning. Although warned of plans to lynch Snyder and advised to take assistance, he curtly declined any help. The testimony also tends to show that his four codefendants left Hamilton on horseback in advance of him and took the road leading to Canyon City. The defendant Hinton was convicted on a separate trial of murder in the second degree, and testified at the trial of Caseday, giving the details of taking and killing the prisoner about two miles out of Hamilton towards Canyon City. The foregoing is a statement of only some of the salient features of the voluminous testimony in the record. The contention of the state is, in substance, that the matter of lynching Snyder was arranged among the defendants Shields, Green, and Hinton, and that Caseday was approached on the subject and consented to play the part of taking the prisoner ostensibly under arrest to the place where the other defendants, by a pretense of force, should take him away from the officer and lynch him. The separate trial of Caseday resulted in a verdict of guilty of murder in the first degree, and from the resultant judgment he appealed.

Leedy & Patterson, for appellant.

Roy F. Shields and A.M. Crawford, Atty. Gen., for the State.

BURNETT J. (after stating the facts as above).

The first error assigned is the refusal of the court to change the place of trial. The defendant filed his own affidavit and that of one of his attorneys, together with two others, to the effect that the killing of Snyder had been generally discussed throughout the county; that several accounts of the homicide had been published in the local papers; and that in their opinion a fair and impartial trial could not be had in that county. It is also charged that some of the prominent taxpayers had employed special counsel to aid in the prosecution. The state filed counter affidavits, in substance giving a contrary opinion as to the probability of getting a fair and impartial jury. The affidavits amount to no more than the mere opinion of the affiants as to the state of the public feeling. On the part of the defendant there is no showing of any overt act indicating prejudice against him except in the employment of special counsel. Who or how many of the citizens of the county participated in that employment is not shown. The newspaper accounts attached to the affidavits are devoid of sensation calculated to inflame the public mind. The press accounts were mere statements as matters of news of the testimony given at the trial of Hinton and other incidents relating to the homicide. The showing is in substance equivalent to the statement that possibly the public may have formed a general opinion of the guilt or innocence of the defendant from what it has heard or read. This situation as to the material available for jurors is analogous to what is contemplated in section 123, L. O.L., to the effect that such an opinion shall not of itself be sufficient to sustain a challenge to a particular juror, but the court must be satisfied from all circumstances that the juror cannot disregard such opinion and try the issue impartially.

It is uniformly held that a change of venue is discretionary with the trial court. The jury in this case was impaneled after the examination of 98 men. We cannot say that the judicial discretion was abused in denying the application to change the place of trial. The decision of trial courts denying motions to change the venue on much stronger showing than exhibited here was upheld in the following cases: State v. Pomeroy, 30 Or. 16, 19, 46 P. 797; State v. Savage, 36 Or. 191, 198, 60 P. 610, 61 P. 1128; State v. Armstrong, 43 Or. 207, 211, 73 P. 1022; State v. Smith, 47

Or. 485, 487, 83 P. 865; State v. Mizis, 48 Or. 165, 174, 85 P. 611, 86 P. 361.

Twenty-five assignments of error in the bill of exceptions relate to the manner of forming the jury.

At the beginning of the trial there were but seven jurors of the regular panel in attendance. The names of these were taken from the box at once, and the court directed counsel to proceed with their examination, to which the defendant objected until the full number of twelve had been drawn. The court overruled the objection, and the seven were examined, with the result that four of them were excused for cause. Afterwards special venires for 50, 40, and 25 jurors were issued in succession, from which the remainder of the jury was impaneled. As this progressed the three remaining jurors of the original seven were peremptorily challenged by the state, so that as to them no harm was done the defendant; he lost no challenges on either of them.

In respect to the formation of the jury, section 116, L. O.L prescribes that: "When the action is called for trial the clerk shall draw from the trial jury box of the court, one by one, the ballots containing the names of the jurors until the jury is completed or the ballots are exhausted. If the ballots become exhausted before the jury is complete, the sheriff, under the direction of the court, shall summon from the bystanders, or the body of the county, so many qualified persons as may be necessary, to complete the jury." According to section 1005, L. O.L., the sheriff summons persons named in the panel by giving written notice to each of them personally or by leaving the same at his place of residence with some person of suitable age and discretion. As each juror from the special venires was examined, and the defendant inquired of him by whom he was served, and to each one answering that he was served by some person other than the sheriff himself in person, the defendant objected because of that. This, in our judgment, amounts to a challenge to the panel, which is forbidden by section 117, L. O.L. The only challenges allowed are peremptory or for cause. Challenges for cause are arranged under two subdivisions: (1) General, that the juror is disqualified from serving in any action; or (2) that he is disqualified from serving in the action on trial. The general causes for challenge are: First, a conviction for felony; second, a want of any of the qualifications prescribed by law for a juror; and, third, unsoundness of mind or such defect in the faculties of the mind, or organs of the body, as renders him incapable of performing the duties of a juror. And the particular causes of challenge are for actual or implied bias. L.O.L. §§ 117-123. These provisions of the Code so particularly delimit objections to jurors as to exclude almost every quasi judicial feature from the duty of the...