State v. Crockett

• Decision Date: 01 July 1901
• Parties: STATE v. CROCKETT.
• Court: Oregon Supreme Court

65 P. 447

39 Or. 76

STATE v. CROCKETT.

Supreme Court of Oregon

July 1, 1901

Appeal from circuit court, Umatilla county; W.R. Ellis, Judge.

Minnie Crockett was convicted of murder in the second degree, and appeals. Affirmed.

Frank J. Raley, for appellant.

T.G Hailey, Dist. Atty., for the State.

BEAN C.J.

The defendant was indicted for murder in the first, and convicted of murder in the second, degree, for killing her husband. From the judgment entered against her, she appeals, assigning as error (1) the refusal of the trial court to admit in evidence, for the purpose of impeachment, the testimony of certain witnesses taken before the coroner's jury; (2) the court's instruction to the jury that they might find the defendant guilty of murder in the first or second degree manslaughter, or not guilty; (3) its definition of a "reasonable doubt"; (4) its statement to the jury that it is admitted in the case that the deceased came to his death by a wound inflicted by a ball fired from a pistol which the defendant purchased a few days prior thereto. And of these in their order.

Upon the trial, Earl Crockett and Ella Anderson were called as witnesses, and gave evidence on behalf of the state. On cross-examination they were asked if they did not make certain statements when testifying before the coroner's jury. Thereafter the defense, without showing to the witnesses the testimony given by them at the coroner's inquest, which had been reduced to writing, offered it in evidence for the purpose of impeaching them, but the trial court refused to admit it. The deposition or testimony of a witness given before a coroner is prima facie evidence of what the witness swore to, and, when the proper foundation is laid, is admissible for the purpose of contradicting him. People v. Devine, 44 Cal. 452. But, where it is sought to impeach a witness by written statements, they must be shown to him before any question is put to him concerning them. Section 841, Hill's Ann.Laws. And this rule applies to testimony in a judicial proceeding reduced to writing and subscribed by the witness. State v. Steeves, 29 Or. 102, 43 P. 947; People v. Ching Hing Chang, 74 Cal. 389, 16 P. 201; Simmons v. State, 32 Fla. 387, 13 So. 896; State v. O'Brien, 18 Mont. 1, 43 P. 1091, 44 P. 399. It was not complied with in the case at bar, and hence there was no error in refusing to admit the testimony so offered.

The court instructed the jury, among other things, as follows "The jury is not restricted in this class of cases to the determination of whether or not the defendant is guilty of the crime charged in the indictment, but must determine whether or not, if not guilty as charged, the defendant is guilty of any crime included in the crime charged. Therefore I instruct you that it is possible in this case for you to find one of four verdicts,--murder in the first degree, murder in the second degree, manslaughter, or not guilty." It is argued that by this instruction the court, in effect, told the jury that there was sufficient evidence in the case to support a verdict of guilty of either murder in the first or second degree or manslaughter; but we do not so interpret the instruction. Its manifest purpose and effect was to advise the jury that under the indictment and the evidence they might properly find the defendant guilty as charged, or any other crime included therein, or not guilty; and in this there was no error. The crime charged in the indictment clearly included all others mentioned in the instruction complained of, and as the proof of the manner and circumstances of the killing, and defendant's connection therewith, was entirely circumstantial, the case comes within the rule laid down by this court in State v. Magers, 35 Or. 520, 57 P. 197, and State v. Ellsworth, 30 Or. 145, 47 P. 199. The deceased was shot while in bed, some time during the night. At the time the only persons in the house were the defendant, the deceased, and their three small children, the latter of whom were asleep. The defendant denied any participation in the killing, and claimed that it was a case of suicide. The question, therefore, as to when and by whom the killing was done,--whether by the deceased himself or by the defendant, and, if by the defendant, whether purposely and of deliberate and premeditated malice, or purposely and maliciously, but without deliberation and premeditation, or in a sudden heat...