State v. Daley

• Decision Date: 03 August 1909
• Citation: 103 P. 502,54 Or. 514
• Parties: STATE v. DALEY. [d]
• Court: Oregon Supreme Court

103 P. 502

54 Or. 514

STATE v. DALEY. ^[d]

Supreme Court of Oregon

August 3, 1909

Appeal from Circuit Court, Multnomah County; C.U. Gantenbein, Judge.

Harry Daley was convicted of murder in the first degree, and he appeals. Affirmed.

John H. Stevenson, for appellant.

J.H Page, Deputy Dist. Atty., for the State.

MOORE C.J.

The defendant, Harry Daley, was convicted of the crime of murder in the first degree, alleged to have been committed by killing Harry Kenny purposely and with deliberate and premeditated malice. He appeals from the sentence of death which resulted; his counsel contending that an error was committed in refusing to instruct the jury as requested, to which denial an exception was taken.

Evidence was offered at the trial tending to show that by reason of mental incapacity the defendant was not responsible for the killing, and, based thereon, his counsel requested the court to charge the jury as follows: "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)." That part of the charge so requested, which is included within the parentheses as here indicated, was refused; but the remainder of the instruction was given. The clause so excluded is copied from a part of the statute directing the manner of caring for a person considered dangerous, who, by reason of insanity, has been acquitted of the commission of a crime. B. & C. Comp. § 1424. The defendant's counsel invoking a provision of the organic law of this state, to wit, "In all criminal cases whatever, the jury shall have the right to determine the law and the facts, under the direction of the court, as to the law" (Const.Or. art 1, § 16), argue that the jury should have been informed that a verdict of not guilty, by reason of insanity, did not necessarily discharge the accused, but that, if the court had considered him dangerous to the public peace or safety, he could have been confined in a lunatic asylum, thereby preventing further injury, and that the failure so to charge did not allay the fear which the jury entertained that the defendant might kill some other person, and induced the verdict which was returned.

The doctrine that in criminal cases the jury should have the right to determine the law and the facts probably originated in the American Colonies prior to the Revolution, and was a protest against what was considered to have been the arbitrary rulings of the judges in the trial of causes involving freedom of speech and of the press. Williams v State, 32 Miss. 389, 396, 66 Am.Dec. 615. A text-writer, speaking upon this subject, observes: "In many of the states, the arbitrary temper of the colonial judges, holding office directly from the crown, had made the independence of the jury in law as well as in fact of much popular importance. Thus, John Adams, in his Diary for February 12, 1771, in a passage which is probably either an extract from or memorandum of a speech before the colonial Legislature, urges that in the then state of things public policy demanded that not only in criminal but in civil cases juries should be at liberty to take the law in their own hands." Wharton's Crim. Pl. & Pr. (8th Ed.) § 806. To the same effect, see Sparf & Hansen v. United States, 156 U.S. 51, 143, 15 Sup.Ct. 273, 39 L.Ed. 343.

The earliest recorded assertion of this legal principle, which we have found, appears in the report of the trial of John Peter Zenger for libel, before James De Lancy, Chief Justice, in the Province of New York, August 4, 1735 (17 Howell's St. Tr. 675, 706), as follows: Mr. Chief Justice: "All words are libelous, or not, as they are understood. Those who are to judge of the words must judge whether they are scandalous or ironical, tend to the breach of the peace, or are seditious. There can be no doubt of it." Mr. Hamilton, attorney for the defendant, said: "I thank your honour. I am glad to find the court of this opinion. Then it follows, that those twelve men (the jurors) must understand the words in the information to be scandalous, that is to say, false; for I think it is not pretended they are of the ironical sort; and when they understand the words to be so, they will say we are guilty of publishing a false libel, and not otherwise." Mr. Chief Justice: "No, Mr. Hamilton, the jury may find that Mr. Zenger printed and published those papers, and leave it to the court to judge whether they are libelous. You know this is very common. It is in the nature of a special verdict, where the jury leave the matter of law to the Court." Mr. Hamilton: "I know, may it please your honour, the jury may do so; but I do likewise know that they may do otherwise. I know they have the right, beyond all dispute, to determine both the law and the fact; and where they do not doubt of the law, they ought to do so."

In the case of Rex v. Shipley, Dean of St. Asaph, 21 Howell's St. Tr. 847, 923, the defendant was tried at the Assizes of Shrewsbury, August 6, 1784, for the publication of a criminal libel. His attorney, Thomas Erskine, afterwards Lord Chancellor of Great Britain, referring to the doctrine under consideration, says: "A jury are no more bound to return a special verdict in cases of libel than upon other trials criminal and civil, where law is mixed with fact. They are to find generally upon both, receiving, as they constantly do in every court at Westminster, the opinion of the judge both on the evidence and the law." The following verdict was returned in that case: "Guilty of publishing, but whether a libel or not the jury do not find."

In discharging a rule to show cause why there should not be a new trial, Lord Mansfield, at page 1034 of the volume referred to, replying to the point contended for by the defendant's counsel, remarked: "Circumstances which amount to a lawful excuse or a justification are proper upon the trial, and can only be used there. Upon every such defense set up, of a lawful excuse or justification, there necessarily arise two questions, one of law, the other of fact; the first to be decided by the court, the second by the jury." In a note to that case, appearing at page 1039, the following statement is made: "Although the court was unanimous in discharging the rule, Mr. Justice Willes, in delivering his opinion, sanctioned by his authority Mr. Erskine's argument that upon a plea of not guilty, or upon the general issue on an indictment or information for a libel, the jury had not only the power, but a constitutional right, to examine, if they thought fit, the criminality or innocence of the paper charged as a libel; declaring it to be his settled opinion that, notwithstanding the production of sufficient proof of the publication, the jury might upon such examination acquit the defendant generally, though in opposition to the directions of the judge, without rendering themselves liable either to attaint, fine, or imprisonment, and that such verdict of deliverance could in no way be set aside by the court."

The doctrine thus asserted was generally recognized in this country for some time after the adoption of the federal Constitution. Wharton's Crim. Pl. & Pr. (8th Ed.) § 806. The fear that a judge, elected by popular vote, might encroach upon the rights of personal liberty, in the trial of criminal actions, has been very much dispelled, except possibly in causes involving political questions, and at the present time, in the absence of a constitutional or statutory provision making the jury in a criminal action the judges of the law and the facts, the doctrine referred to rarely obtains. As tending to show the change of judicial utterance upon this question, attention will be called to a few decisions. Thus in Com. v. Knapp, 10 Pick (Mass.) 477, 496, 20 Am.Dec. 534, and in Com. v. Kneeland, 20 Pick. (Mass.) 206, 222, the doctrine was recognized by the Supreme Court of Massachusetts, but in later decisions by that tribunal it was rejected. Com. v. Porter, 10 Metc. (Mass.) 263; Com. v. Anthes, 5 Gray (Mass.) 185. In Kane v. Com., 89 Pa. 522, 33 Am.Rep. 787, it was admitted that the jury had the right to determine the law and the facts in the trial of a criminal cause; but thereafter that ruling was modified. Nicholson v. Com., 96 Pa. 503; Com. v. McManus, 143 Pa. 64, 21 A. 1018, 22 A. 761, 14 L.R.A. 89. In State v. Croteau, 23 Vt. 14, 54 Am.Dec. 90, a majority of the court held that the doctrine was applicable; but in State v. Burpee, 65 Vt. 1, 25 A. 964, 19 L.R.A. 145, 36...