State v. Cunningham

• Decision Date: 14 December 1943
• Citation: 144 P.2d 303,173 Or. 25
• Parties: STATE <I>v.</I> CUNNINGHAM
• Court: Oregon Supreme Court

173 Or. 25

144 P.2d 303

STATEv.

CUNNINGHAM

Supreme Court of Oregon.

Argued September 21, 1943.

Affirmed December 14, 1943.

Criminal law

1. Where confession of accused in homicide case was offered through testimony of four police officers and notes of court reporter who took down confession after accused's arrest, accused, by failing to object thereto, conceded admissibility of confession.

Homicide

2. In prosecution for murder, permitting physician, who was director of state's crime detection laboratory, to describe other bullet wounds on deceased's body in addition to the fatal one, for purpose of showing deliberation and malice, was not error.

Homicide

3. Plea of not guilty imposed on state burden of proving every element of crime of murder in first degree, including proof that accused killed victim "purposely and of deliberate and premeditated malice".

Homicide

4. Under statute listing as conclusive presumptions an attempt to murder from deliberate use of deadly weapon causing death within a year, and a malicious and guilty intent from deliberate commission of an unlawful act for purpose of injuring another, the presumed intent or malice authorized is sufficient to establish second, but not first-degree murder.

Criminal law

5. In homicide case, state is not compelled to content itself with presumptive intent or malice under statute relating to conclusive presumptions as to intent to murder, but it may, if it can, establish express intent.

Homicide

6. To establish "first-degree murder", there must be actual proof by direct or circumstantial evidence that killing was committed with deliberate and premeditated malice, and none of so-called statutory conclusive presumptions establishes deliberate and premeditated malice, and even if malice is proved or presumed, premeditation must be established as a fact.

Homicide

7. In homicide cases, all evidence which is material and relevant and which violates none of the exclusionary rules is admissible.

Homicide

8. The repeated shooting of an individual with a deadly weapon is evidence that the gun was used intentionally and deliberately, and not inadvertently.

Homicide

9. The repeated shooting into vital places of body of another is evidence, in states where an attempt to do no more than wound does not suffice, that person who fired gun wanted to kill his victim and not merely wound him.

Homicide

10. In murder prosecution, evidence that three of the four bullets fired from pistol struck deceased in the back indicated that they were not fired in self-defense.

Homicide

11. The fact that a person is repeatedly shot after he has been so mortally wounded that he will shortly die, evidences "anger" or "malice" and refutes justifiable purposes.

Homicide

12. The act of one who pursues a fleeing person, whom he has mortally wounded, and shoots him three times more, properly may be deemed "brutal" and "depraved".

Homicide

13. From a homicide performed in a brutal manner or one indicative of deliberate malignity, jury may infer "malice".

Criminal law

14. In murder prosecution, victim's shirt and coat and an infra-red photograph of the coat were admissible in evidence to show location of wounds made by bullets fired by accused and were relevant on issue of malice.

Criminal law

15. In first-degree murder prosecution involving question whether accused shot in self-defense, deceased's shirt and coat, with bullet holes, bloodstains, and powder marks thereon, being relevant to issue of malice as tending to show whether deceased was standing upright or was stooping over when shots were fired, were not rendered inadmissible because they might be deemed gruesome.

Criminal law

16. In murder prosecution, infra-red photograph of coat worn by deceased showing bullet holes, and also spots on the dark material of the coat which would otherwise be difficult of detection by examination of coat itself, was properly admitted over objection that jury could see coat as well as the photograph and would understand it just as well.

Witnesses

17. In murder prosecution, in which state's medical expert had testified that fatal bullet did not pass through coat worn by deceased but only through his shirt, question asked of him: "That

coat doesn't show the path that was taken by what you term the fatal bullet, does it?" was permissible as against objection that it was leading.

Witnesses

18. In murder prosecution, permitting ballistic expert to answer question whether path bullet had taken through deceased's body and condition of bullet found afterward had something to do with expert's ability to identify it was not abuse of discretion as permitting leading questions, where expert's answer indicated that he was not led and matter was further developed on cross-examination of expert by defendant's attorney.

Criminal law

19. In murder prosecution involving plea of not guilty by insanity, in which psychiatrist testified on direct examination on behalf of accused that from his examination of accused after homicide he believed accused to be a constitutional psychopath, overruling of objection to question asked psychiatrist on cross-examination as to accused's mental condition on date of examination was not error.

Witnesses

20. In murder prosecution in which accused was indicted as "Harvey C----", admission in evidence for impeachment purposes, over objection, of certified copies of judgments entered in felony cases in another state in one of which accused's name was given as "Howard C----", was not error where accused testified that he had been known under both names in the other state.

Witnesses

21. The state could impeach accused in murder prosecution by introducing certified copies of three judgments in felony cases against him in another state, and was not limited to showing only one conviction.

Criminal law

22. In criminal prosecutions, identity of name ordinarily is sufficient, in first instance, as presumptive evidence of identity of person, and since identity is more easily disproved than established, weakness of evidence in disproof tends to strengthen evidence of identity.

Criminal law

23. Where in murder prosecution police officer had testified that he had talked to accused "about this case", and in answer to question how conversation about the case happened to come up, replied, "Well, there was another case that we had been talking to him about", and answer was immediately stricken out and the other case never again referred to during the trial, refusal to grant mistrial because of reference to the other case was not abuse of discretion.

Criminal law

24. A voluntary statement by witness not responsive to question should be stricken unless it would be otherwise admissible or would be proper if in answer to a question, but whether improper voluntary statement requires declaration of mistrial is largely within trial judge's discretion.

Criminal law

25. The burden is on defendant who claims that unresponsive answer of witness to question was so prejudicial that nothing short of mistrial would suffice to correct it, of showing that presiding judge exercised his discretion erroneously in denying mistrial.

Criminal law

26. Normally, striking an irresponsive answer of witness to question from record and instructing jury to disregard it suffices to remove prejudicial error arising therefrom.

Criminal law

27. Refusal of mistrial because four jurors, after being impaneled, read newspaper accounts concerning trial wherein accused was designated as "ex-convict", was not abuse of discretion, where trial judge satisfied himself through questioning jurors that articles had not made any impression which could not be ignored.

Criminal law

28. It is duty of a juror in a criminal case to be impartial.

Criminal law

29. When state charges person with crime, it throws about his trial a protective screen intended to exclude from jurors all information about case except evidence coming from witness stand, and this is especially important in felony cases.

Criminal law

30. Trial judge possesses power to secure for defendant in a criminal case an impartial trial, and if it becomes necessary to withdraw jurors from public, judge possesses such power and should exercise it to prevent unauthorized communications to jury.

Criminal law

31. Motion of defendant for mistrial because some of jurors had read newspaper articles dealing with early stages of the murder trial, which articles characterized accused as an "ex-convict", was addressed to trial judge's discretion.

Criminal law

32. When state charges person with a crime it does not undertake to provide him with a trial free from error or untoward incidents, but only to conduct a trial free from prejudicial error.

Witnesses

33. In murder prosecution in which accused claimed that confession had been induced by police officer's threats of a beating and fact that another prisoner had displayed to accused wounds allegedly received in a severe beating by the officer which induced him to confess to another crime, refusing to permit accused's counsel to cross-examine the officer, as to whether he beat the other prisoner to make him confess was not error since matter was irrelevant.

Witnesses

34. In murder prosecution, admitting copies of judgment orders entered against accused in other felony cases, over objection that when witness in cross-examination admits crime for which he had been convicted, it is improper to permit impeachment because there is nothing to impeach, was without merit, where accused did not admit the convictions and was not asked anything on subject.

                  Reading newspaper account of trial as misconduct of juror
                note, 86 A.L.R. 935. See, also, 31 Am. Jur. 669
                  23 C.J.S., Criminal Law, § 1078
                

Before BAILEY, Chief Justice, and BELT, ROSSMAN, KELLY, BRAND and HAY, Associate Justices.

Appeal from Circuit Court, Multnomah County.

JAMES W. CRAWFORD, Judge.

Harvey Cunningham was convicted of murder in...