State v. O'Donnell

• Decision Date: 30 July 1900
• Citation: 36 Or. 222,61 P. 892
• Parties: STATE v. O'DONNELL.
• Court: Oregon Supreme Court

61 P. 892

36 Or. 222

STATE v. O'DONNELL.

Supreme Court of Oregon

July 30, 1900

Appeal from circuit court, Umatilla county; S.A. Lowell, Judge.

Thomas O'Donnell was convicted of larceny, and he appeals. Reversed.

T.G. Hailey and John J. Balleray, for appellant.

D.R.N Blackburn, Atty. Gen., for the State.

MOORE J.

The defendant Thomas O'Donnell was jointly indicted with James Roach for the alleged larceny of a cow and a calf, the property of one Allen Rhodes, of the value of $30 and $12 respectively, committed in Umatilla county, Or., October 25 1898; and, having been separately tried, he was found guilty thereof, and from the judgment which followed he appeals.

The testimony introduced at the trial tended to show that Rhodes owned a black muley cow and her black muley bull calf, which were missed about October 20, 1898, and three or four weeks thereafter the cow was found about 15 miles from his place in the defendant Roach's inclosed stubble field, and the calf's hide near Pendleton, at the slaughter house of Swartz & Greulich, to whom Roach sold the calf, with three others, which he purchased, with said cow and other cattle, from the defendant O'Donnell. The state called one A.D. Rhonimus, who, over the defendant's objection and exception, was permitted to testify that, having visited said slaughter house, he found a red hide, which he recognized as having been taken from a calf which he had missed, and which was included in the sale so made by Rhodes to Swartz & Greulich, and that he had never sold the calf, or authorized any one to take, kill, or flay it.

It is contended that the defendant having been charged with the larceny of a cow and a calf, the property of Rhodes the court erred in admitting testimony tending to show the commission of an independent crime. "The general rule," says Mr. Justice Bean in State v. Baker, 23 Or. 441, 32 P. 161, "is unquestioned that evidence of a distinct crime unconnected with that laid in the indictment cannot be given in evidence against the prisoner. Such evidence tends to mislead the jury, creates a prejudice against the prisoner, and requires him to answer a charge for the defense of which he is not supposed to have made preparation." The rule is well settled that evidence of the prisoner's participation in the commission of crimes wholly unconnected with that for which he is put upon trial is inadmissible. Greenl.Ev. § 52; Dunn v. State, 35 Am.Dec. 54; Rosenweig v. People, 63 Barb. 634; Bonsall v. State, 35 Ind. 460; Coleman v. People, 55 N.Y. 81; People v. Gibbs, 93 N.Y. 470; Barton v. State, 18 Ohio, 221. The rule that evidence of crimes other than that charged in the indictment is inadmissible is subject to a few exceptions, speaking of which, Mr. Underhill, in his valuable work on Criminal Evidence (section 87), says: "These exceptions are carefully limited and guarded by the courts, and their number should not be increased." The author gives five exceptions to such rule, which may be summarized as follows: (1) If several similar criminal acts are so connected by the prisoner, with respect to time and locality, that they form an inseparable transaction, and a complete account of the offense charged in the indictment cannot be given without detailing the particulars of such other acts, evidence of any or all of the component parts thereof is admissible to prove the whole general plan. State v. Roberts, 15 Or. 187, 13 P. 896; Phillips v. People, 57 Barb. 353; Hickam v. People, 137 Ill. 75, 27 N.E. 88; Turner v. State, 102 Ind. 425, 1 N.E. 869; Com. v. Robinson, 146 Mass. 571, 16 N.E. 452; People v. Foley, 64 Mich. 148, 31 N.W. 94; State v. Williamson, 106 Mo. 162, 17 S.W. 172; State v. Perry, 136 Mo. 126, 37 S.W. 804; Brown v. Com., 76 Pa.St. 319. Mr. Justice Agnew, in Shaffner v. Com., 13 Am.Rep. 649, in commenting upon this exception, says: "To make one criminal act evidence of another, a connection between them must have existed in the mind of the actor, linking them together for some purpose he intended to accomplish." (2) When the commission of the act charged in the indictment is practically admitted by the prisoner, who seeks to avoid criminal responsibility therefor by relying upon the lack of intent or want of guilty knowledge, evidence of the commission by him of similar independent offenses before or after that upon which he is being tried, and having no apparent connection therewith is admissible to prove such intent or knowledge, which has become the material issue for trial. Yarborough v. State, 41 Ala. 405; People v. Sanders, 114 Cal. 216, 46 P. 153; Langford v. State, 33 Fla. 233, 14 So. 815; Stafford v. State, 55 Ga. 591; Anson v. People, 148 Ill. 494, 35 N.E. 145; Com. v. Bradford, 126 Mass. 42; People v. Henssler, 48 Mich. 49, 11 N.W. 804; Lindsey v. State, 38 Ohio St. 507; Goersen v. Com., 99 Pa.St. 388; State v. Habib, 18 R.I. 558, 30 A. 462; Zoldoske v. State, 82 Wis. 580, 52 N.W. 778. Mr. Justice Rapallo, in People v. Corbin, 15 Am.Rep. 427, speaking of this exception, says, "The cases in which offenses other than those charged in the indictment may be proved, for the purpose of showing guilty knowledge or intent, are very few." (3) If the facts and circumstances tend to show that the prisoner committed an independent dissimilar crime, to enable him to perpetrate or to conceal an offense, such evidence is admissible against him upon an indictment charging the auxiliary crime, when the intent to perpetrate or conceal such offense furnished the motive for committing the crime for which he is put upon trial. State v. Watkins, 9 Conn. *47; Painter v. People, 147 Ill. 444, 35 N.E. 64; People v. Harris, 136 N.Y. 423, 33 N.E. 65; Templeton v. People, 27 Mich. 501; Pierson v. People, 79 N.Y. 424; Com. v. Ferrigan, 44 Pa.St. 386; People v. Stout, 4 Parker, Cr.R. 71; Crass v. State, 31 Tex.Cr.R. 312, 20 S.W. 579; Moore v. U.S., 150 U.S. 57, 14 Sup.Ct. 26, 37 L.Ed. 996. (4) When a crime has been committed by the use of a novel means or in a particular manner, evidence of the defendant's commission of similar offenses by the use of such means or in such manner is admissible against him, as tending to prove the identity of persons from the similarity of such means, or the peculiarity of the manner adopted by him. Frazier v. State, 135 Ind. 38, 34 N.E. 817; Com. v. Choate, 105 Mass. 451; Brown v. State, 26 Ohio St. 176. (5) When a prisoner is charged with any form of illicit sexual intercourse, evidence of the commission of similar crimes by the same parties is admissible to prove an inclination to commit the act for which the accused is put upon his trial. Bish.St. Crimes, § 679; State v. Scott, 28 Or. 331, 42 P. 1; McLeod v. State, 35 Ala. 395; People v. Patterson, 102 Cal. 239, 36 P. 436; Lefforge v. State, 129 Ind. 551, 29 N.E. 34; State v. Williams, 76 Me. 480; Com. v. Nichols, 114 Mass. 285; People v. Skutt, 96 Mich. 449, 56 N.W. 11; State v. Marvin, 35 N.H. 22; State v. Pippin, 88 N.C. 646; Com. v. Bell, 166 Pa.St. 405, 31 A. 123. An examination of these deviations from the general rule will show that the testimony objected to herein, if allowable, falls within the first exception hereinbefore noted. That the taking of the two calves, if it be...