State v. Drake

• Decision Date: 13 November 1884
• Parties: STATE v. DRAKE.
• Court: Oregon Supreme Court

4 P. 1204

11 Or. 396

STATE v. DRAKE.

Supreme Court of Oregon

November 13, 1884

Holmes & Piper, for respondent.

Ford &amp Kaiser, for appellant.

LORD J.

The defendant was jointly indicted with Mary E. Swartz at the June term, 1884, of the circuit court for Marion county, for the crime of murder. A separate trial having been granted the cause came on for trial at the time specified, and resulted in a verdict of guilty as charged in the indictment. A motion for a new trial was interposed, supported by the affidavit of the defendant, which, after argument, was overruled, and the defendant by his counsel duly excepted thereto. From the order of the court overruling this motion the defendant appeals to this court, and assigns the following as grounds of error:

(1) The court erred in allowing the attorney for the prosecution, against objection, to argue that because defendant was in the habit of carrying a pistol showed that he was a bad man, and that this habit of carrying a pistol was a circumstance indicating guilt. (2) The court erred in allowing the counsel for the prosecution, in his closing argument, to refer to what the newspapers said about crime against the objections of counsel. (3) The court erred in allowing the attorney for the prosecution, against the objection of my counsel, as will fully appear by the affidavit hereto attached and made a part hereof, to refer to and comment upon the Cincinnati riot, which he claimed was caused by the jury acquitting the defendant then on trial. (4) The court erred in allowing the attorney for the prosecution in his closing argument, against objection of my counsel, to intimate and argue that there would be a riot here if the jury did not return a verdict of guilty against me. (5) Because the defendant can, if granted a new trial prove by Mary E. Swartz, the co-defendant, who has since defendant's trial been acquitted, the facts as stated in the affidavit hereto attached, which said facts are material to defendant's defense; and defendant could not produce the said Mary E. Swartz as a witness in his behalf at said term, for the reason that she was then jointly indicted with this defendant.

As the first four assignments of error, so far as this case is concerned, involve a decision of the same question, they will be considered together; and, substantially, that question is whether the objections, or matters assigned as error, are presented by this record so that this court can take judicial cognizance of them. Evidently, in the preparation of their brief, counsel for the defendant treated the record as containing a bill of exceptions; but in the oral argument it was claimed that the ruling of the court upon the affidavit and motion, which were in writing and upon file in the court, being upon the record, it brought the matter within the purview of section 230 of the Code of Civil Procedure, and rendered a bill of exceptions unnecessary to enable this court to review it. Originally, at common law, no matter could be assigned as error except such as appeared in the record; and as the parties were bound by it, as absolute verity, they were not allowed to impugn or contradict it by averment. The rulings of the court in the progress of the trial, and often of vital importance as affecting the result, did not appear in the record, nor were there any means of introducing them into it, and the consequence was that the party, believing himself aggrieved, was without remedy or redress.

To obviate and remedy this defect the statute (Westm. 2, 13, Edw. I. c. 31) was passed which established in the practice what is now known as a bill of exceptions. Its object was to bring into the record the particular matter excepted to and supposed to be error, and which the record otherwise would not disclose, to lay the foundation for proceedings in error. It was required, therefore, to be in writing, clearly stating the point wherein the court is supposed to have erred, with the necessary facts and circumstances, to attest the accuracy and authority of which it must be signed and sealed by the judge who made the ruling or decision. Bac. Abr. "Bill of Exceptions;" 2 Chit.Bl. 372; 1 Archb.N.P. 43; Huddleston v. State, 7 Baxt. 56; Berry v. Hale, 1 How. (Miss.) 318; Berly v. Taylor, 5 Hill, 579; Kitchell v. Burgwin, 21 Ill. 45.

It is not thought that chapter 2, tit. 7, p. 151, of exceptions in our Code has innovated or affected in any substantial particular the practice as it existed at the common law. The purposes and objects of a bill of exceptions under the Code is to subserve the same end, and to introduce matter which the record would not otherwise disclose, for the information of the court having cognizance of the cause in error. Now it is perfectly clear that the matter alleged in the affidavit of the defendant could in no way constitute any part of the record except through the instrumentality of a bill of exceptions. It is not intended in such cases that a party may make a statement in writing of what he conceives to be his grievances, and, by swearing to it and filing it, and then moving for a new trial, and the court overrules the motion, he has incorporated the matter into the record, so as to make it a part thereof, and to enable this court to review it. If this can be done, the statement of exception provided by the Code to be settled, signed, and allowed by the court before whom the cause was tried, to bring such matter into the record, and lay the foundation for appellate review, becomes a useless and meaningless thing. The whole business may be accomplished without the aid of the court and untrammeled by its authority. It has always been supposed that the record of a court is made up under the solemn sanction of the court, and to make exceptional matters occurring during the progress of the trial a part of such record it must be so ordered by the court. Irrelevant language addressed to the jury is no part of the record of that cause until made so by bill of exceptions under judicial order. But when made so, and properly before us, we have not failed to condemn it when its harmful results were manifest. Tenny v. Mulvaney, 8 Or. 520. But without putting such matter in a bill of exceptions, and authenticating it in the manner required by law, the court cannot receive it because there is no legal evidence before the court that it contains a correct record of the proceedings. Edwards v. Kearney, 13 Neb. 532; S.C. 14 N.W. 536.

The next assignment of error is the overruling of the defendant's motion for a new trial, because, if granted, the defendant would be able to prove by Mary E. Swartz, a co-defendant, who, since the trial of the defendant, has been acquitted, the facts as stated in his affidavit, which facts are claimed to be material to his defense, and that he could not produce the said Mary E. Swartz as a witness in his behalf at said trial, for the reason that she was then jointly indicted with him. It is manifest, from the statement of this objection, that counsel for the defendant did not construe the act to amend section 166, tit. 1, c. 16, Crim.Code, as affecting the disqualification of a co-defendant, or they would undoubtedly have availed themselves of this privilege in behalf of the defendant at his trial. It is, however, insisted by counsel for the state that the effect of the amendatory act was to remove the disqualification which previously existed, and render a co-defendant a competent witness, and that the failure to call such witness to testify, for the reason of the supposed incompetency, cannot avail upon this motion. We are of the opinion that the amendatory act did not affect the law in respect to co-defendants, and that this is clear from its scope and purpose.

Section 166 of the Criminal Code provides that--

"A defendant in a criminal action or proceeding cannot be a witness for or against himself, nor for or against his co-defendant, except as provided in sections 162 and 163." Section 162 provides:

"When two or more persons are charged in the same indictment, the court may, at any time before the defendant has gone into his defense, on the application of the district attorney, direct any defendant to be discharged from the indictment, so that he may be a witness for the state."

And section 163:

"When two or more persons are charged in the same indictment, and the court is of the opinion that in regard to a particular defendant there is not sufficient evidence to put him on his defense, it must, if requested by another defendant then on trial, order him to be discharged from the indictment, before the evidence is closed, that he may be a witness for his co-defendant."

But by the act to amend section 166, Sess.Laws 1880, p. 28, it was provided that--

"In the trial of or examination upon all indictments complaints, information, and other proceedings, before any court, magistrate, jury, grand jury, or other tribunal, against persons accused or charged with the commission of crimes or offenses, the person so charged or accused

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