State v. Feister

• Citation: 50 P. 561,32 Or. 254
• Parties: STATE v. FEISTER. [1]
• Decision Date: 25 October 1897
• Court: Supreme Court of Oregon

50 P. 561

32 Or. 254

STATE v. FEISTER. ^[1]

Supreme Court of Oregon

October 25, 1897

Appeal from circuit court, Josephine county; H.K. Hanna, Judge.

Charles Feister was convicted of murder, and appeals. Affirmed.

R.G. Smith, for appellant.

C.M Idleman, Atty. Gen., and John A. Jeffrey, Dist. Atty., for the State.

MOORE C.J.

The defendant, Charles Feister, was indicted, tried, and convicted of the crime of murder in the first degree, and having been sentenced to be hanged, he prosecutes this appeal.

1. It is contended that the court erred in overruling a demurrer to the indictment. This accusation, in specifying the means made use of to accomplish the alleged purpose, charges that the defendant "did then and there feloniously, purposely and of deliberate and premeditated malice kill Nancy E. Feister, by then and there beating her with his fists, and by choking her, and by pushing and dragging her into the water, and holding her under the water, whereby she was drowned," etc. The statute, in prescribing the method of charging an offense, declares: "The indictment must charge but one crime, and in one form only; except that where the crime may be committed by use of different means, the indictment may allege the means in the alternative." Hill's Ann.Laws Or. § 1273. It is insisted by defendant's counsel that the word "may," as used in the latter clause of the section quoted, should be construed as "must"; and that, the indictment having failed to allege the means in the alternative, the demurrer should have been sustained. It was a rule of the common law that an indictment should be positive in its averment of the means adopted to effectuate a purpose to take the life of another, and, where the means so used were unknown to the grand jury, it was permissible for them to charge in separate counts of the indictment the use of such means as might have been selected by the accused to accomplish his design; and, if the evidence submitted at the trial sustained either count of the indictment, it was held sufficient to support a conviction thereon. In cases where "circumstances rendered the evidence dubious" the pleader was permitted to adopt a legal fiction, and set out one crime in varying ways, and for this purpose might join several counts in the indictment, each positively charging the commission of a crime in a particular manner. 1 Chit.Cr.Law, 248; 1 Bish. New Cr.Proc. § 423. The Code of Alabama authorizes disjunctive averments in an indictment in the following instances: (1) "When the offense may be committed by different means, or with different intents, such means or intents may be alleged in the same count in the alternative." Code 1876, § 4123. (2) "When an act is criminal, if producing different results, such results may be charged in the same count in the alternative." Id. And (3) "where offenses are of the same character, and subject to the same punishment, the defendant may be charged with the commission of either in the same count in the alternative." Id. § 4125. In Horton v. State, 53 Ala. 488, Brickell, C.J., in explaining the object of these sections of the statute, says: "An apparent purpose of these several provisions is to obviate the necessity of a multiplicity of counts, permitting one count to serve the purposes accomplished by several at common law; and this, perhaps, was all it intended they should accomplish. An indictment for homicide must have averred the means by which death was caused, and could not aver them in the alternative; for instance, that it was by poison, or starvation, or strangling, or stabbing, or shooting. That death was produced by either of these means must have been averred in separate counts; and, if averred disjunctively or alternatively in the same count, the count was bad." In Minnesota, under a statute which contained the following provisions: "Where the offense may have been committed by the use of different means, the indictment may allege the means of committing the offense in the alternative" (Gen.St. c. 108, § 6),--a party was indicted for the crime of abortion, alleged to have been committed by the administration to a pregnant woman of "a large quantity of medicines, or a large quantity of drugs, or a large quantity of noxious, pernicious, and destructive substances, the names, ingredients, kinds, quality, and quantity of said medicines, or of said drugs, or of said noxious, pernicious, and destructive substances, being to the grand jury unknown"; and it was held that the indictment was sufficient as respects the means alleged to have been made use of to effect the crime charged. State v. Owens, 22 Minn. 238. It would seem that by the phrase, "may have been committed by the use of different means," as used in the Minnesota statute, it was intended that when the means adopted by the party accused of the commission of a crime are unknown, or "where circumstances render the evidence dubious," the pleader may allege the means supposed to have been used in the alternative, or to state that the means used are to the grand jury unknown; but, where such means are known, it is incumbent upon the prosecuting officer to so allege the fact in the indictment. In State v. Edmondson, 43 Tex. 162, the indictment charged the defendant with the commission of the crime of murder in the first degree, committed by beating one Julia Edmondson with a stick, bruising her with a hoe, chaining her with chains, tying her with ropes, exposing her to cold, and depriving her of food and clothing and shelter, slapping her with his hand, beating her with his fist, and stamping her with his feet, of which, etc., she died. The court having quashed the indictment, the state appealed, and Moore, J., in rendering the decision, says: "But the plain import of the indictment is that on the day named therein, by the blows inflicted with a stick, by those given with the hoe, by the cruel acts alleged, the exposure to cold and deprivation of food, by the slappings, beatings, and stampings charged, defendant did kill and murder the deceased." In the case at bar the bill of exceptions does not purport to contain a transcript of the testimony given at the trial, in the absence of which it must be presumed that the evidence supported the allegations of the indictment; and, the means being known to the grand jury, it was proper to allege them conjunctively, for it may have been that, in consequence of the alleged beating and choking of the deceased, the defendant was enabled to drag her to and hold her under water, until life was extinct; and, if such were the case, and the facts were known to the grand jury, all these acts constituted the means by which the deed was accomplished.

2. It is contended that the court erred in denying defendant's motion to postpone the trial. The rule is well settled that an application to postpone the trial of a cause is addressed to the sound discretion of a court, and that its action thereon will not be reviewed except for clear abuse of such discretion. State v. Hawkins, 18 Or. 476, 23 P. 475; Territory v. Perkins, 2 Mont. 467; State v. Chapman, 6 Nev. 320; State v. Rosemurgey, 9 Nev. 308; People v. Gaunt, 23 Cal. 156; People v. Williams, 24 Cal. 38; McDaniel v. State, 47 Am.Dec. 93. The affidavit of defendant's counsel in support of his motion for a continuance shows, in substance, that he was informed and believed that his client was insane at the time of the commission of the crime with which he was charged, and that the defense he intended to interpose would be hereditary and emotional insanity; that, in order to make such defense, it would be necessary to procure evidence of defendant's family history and of his past life; that the witnesses necessary to prove these facts were the defendant's relatives,--naming them,--residing in Arizona, California, and Utah; that he was informed and believed that said witnesses, if they could be obtained, would testify to facts showing that defendant was mentally deranged long prior to the commission of the crime charged against him, and that such evidence would afford a basis for the admission of medical testimony tending to show that defendant was not mentally responsible at the time of the alleged homicide. While the affidavit shows that defendant's counsel intended to rely upon proof of hereditary insanity, it does not show that he expected to prove by either of the witnesses whom he desired to call that either of defendant's parents or their ancestors were insane, or that either of them was affected with epilepsy, hysteria, or neuralgia, or that they, or either of them, transmitted to any of their offspring a delicate nervous condition or hereditary taint that would be a predisposing cause of insanity. The cause of the alleged insanity, as inferred from the affidavit, had its origin in the defendant himself, and, if it existed at all, may have been either exciting or moral; but, in any event, the testimony of those with whom he associated would be as competent to prove the fact relied upon as the evidence of his relatives. Counter affidavits of William Chapman, Henry Thornton, and W.B. Brown tend to show that defendant had resided in the county in which the trial was had about 20 years immediately preceding the commission of the crime of which he was convicted, and, such being the case, there was evidently no abuse of discretion in denying the motion for continuance.

3. It is claimed that the court erred in refusing to withdraw from the consideration of the jury the testimony of one Pet Root a witness nine years old, called on behalf of the state. The record shows that this witness testified, in substance, that, on her way to Sunday school, in passing Mrs. Feister's house on the day the latter was drowned, she heard the...