State v. Daley

• Decision Date: 05 October 1909
• Citation: 104 P. 1,54 Or. 514
• Parties: STATE v. DALEY.
• Court: Oregon Supreme Court

104 P. 1

54 Or. 514

STATE v. DALEY.

Supreme Court of Oregon

October 5, 1909

On rehearing. Denied.

For former report, see 103 P. 502.

King J., dissenting.

MOORE, C.J.

In a petition for a rehearing herein attention is called to the case of State v. Cody, 18 Or. 506, 521, 23 P. 891 24 P. 895, where the doctrine was proclaimed that under the organic law of this state (Const. Or. art. 1, § 16) it was the duty of a court, without a request therefor, to instruct the jury as to all questions of law that might arise at the trial of a criminal action, and that a failure so to charge constituted reversible error though no exception to the alleged neglect was reserved. That part of the opinion relied upon was expressly overruled in the case of State v. Foot You, 24 Or. 61, 70, 32 P. 1031, 33 P. 537, and the legal principle last announced has been subsequently followed. State v. Smith, 47 Or. 485, 490, 83 P 865; State v. Reyner, 50 Or. 224, 232, 91 P. 301.

Believing that no error was committed in the trial of this cause, the petition for a rehearing is denied.

KING J. (dissenting).

Defendant was charged, tried, and convicted of murder in the first degree. At the trial his counsel interposed the defense of insanity, pursuant to which the court was requested to instruct the jury that: "The defense of insanity having been interposed by the defendant in this case, you are instructed that if you find him not guilty on that ground, to state the fact in your verdict, and the court must thereupon if it deems his being at large dangerous to the public peace or safety, order him to be committed to any lunatic asylum authorized by the state to receive and keep such persons until he becomes sane, or be otherwise discharged therefrom, by authority of law." All of that portion of the requested instruction after the word "verdict" was refused by the trial court. This refusal is assigned as error, and constitutes the sole question presented. I think it clear from the instruction requested that the point involved relates solely to the right of the jury to know the full effect, under the law, of their verdict in the event the defense of insanity should be sustained, and not the question, as considered and determined by the majority, whether the jury should know the penalty, if any, under such circumstances. As instructed, they received but a part of the law respecting the defense of insanity applicable to such cases. They had no means of knowing whether the accused, if found a maniac, should be turned loose upon the community with the probability of his again committing a like crime, or whether it was within the power of the court to consider the verdict, and be governed accordingly. It was not asked that the court indicate what course it would pursue, but what course, under the law, could be taken.

In State v. Cody, 18 Or. 506, 521, 23 P. 891, 24 P 895, the court had under consideration the giving of...