State v. Finch

• Decision Date: 10 August 1909
• Citation: 103 P. 505,54 Or. 482
• Parties: STATE v. FINCH. [d]
• Court: Oregon Supreme Court

103 P. 505

54 Or. 482

STATE v. FINCH. ^[d]

Supreme Court of Oregon

August 10, 1909

Appeal from Circuit Court, Multnomah County; E.C. Bronaugh, Judge.

J.A Finch was convicted of murder, and he appeals. Affirmed.

The defendant was indicted by the grand jury of Multnomah county for murder in the first degree, in the killing of one Ralph B. Fisher. A trial resulted in his conviction as charged and, having been sentenced to death, he appeals to this court. The points relied upon to reverse the judgment are stated in the opinion.

John A Jeffrey and Chas. E. Lenon, for appellant.

J.J Fitzgerald and A.C. Spencer (Geo. J. Cameron, on the brief), for the State.

McBRIDE J.

The assignments of error in this case being more fully stated in the reply brief filed by defendant's counsel, we will consider them in the order in which they are therein set forth.

The first assignment is that the court erred in compelling the defendant to go to trial within eight days from the finding of the indictment. The killing of Fisher, and consequent arrest of defendant, occurred on the 28th day of November, 1908. A short time subsequent to this the coroners' inquest was held, and the principal counsel for defendant was present. It also appears that several of the counsel who represented defendant on the final trial were present at the preliminary examination, which was held a week after the killing, so that while it may have been true that counsel had not been formally retained until defendant was indicted, it is evident that they had been active theretofore in the case, and had every opportunity to become familiar with it, and the manner in which they conducted the defense showed that such opportunity had not been neglected.

The question of granting a continuance on the ground of the absence of material witnesses was one addressed to the sound discretion of the trial court. It appears that the witnesses desired by defendant were all actually present at the trial except two. Mrs. May Finch and W.C. Piggott, and that the testimony of Mrs. Finch was taken by deposition by consent of the state, leaving Piggott the only witness whose testimony was not available on the trial. Mrs. Finch and the defendant both testified to the same state of facts which the defense claimed could be established by Piggott's testimony, and they were not contradicted by any witness. The affidavit for continuance did not indicate clearly the probable time of Piggott's return to the state, merely stating that he had gone to California, and would not return under six weeks, but not indicating whether or not he was likely to return after that period. It also showed that, although the trial had been set for the 18th day of December, no subpoena had been issued until the 16th, thus showing that five or six days had been wasted before any subpoena had been issued. The affidavit did not show the relation of the testimony of Piggott to the proposed defense, or that it had any relevancy to it whatever. In the light of the testimony subsequently adduced and the defense made, it can now be seen that the desired testimony would have been relevant, but the court could not know this before the trial, unless the affidavit set forth enough of the theory of the defense to enable the court to judge from the affidavit itself as to the probable materiality of the testimony. The further statement in the affidavit as to the excited state of the public mind and prejudice against defendant, by reason of inflammatory articles and cartoons in the newspapers, were matters of which the court below was in a much better position to judge than we are. None of the alleged articles or cartoons are attached to the affidavits, so that neither this court, nor the court below, is able to say from actual inspection of them whether or not they were of such a character as to greatly influence public opinion, or prejudice a jury against the defendant. The fact that no exception is taken to any ruling of the court upon the acceptance or rejection of any juror indicates that a jury believed by both parties to have been fair and impartial was secured in the case.

The granting or refusing of a motion for continuance is a matter in the discretion of the trial court, and will not be disturbed on appeal, except for an abuse of that discretion. 4 Enc.Pl. & Pr. 835; State v. O'Neil, 13 Or. 183, 9 P. 284; State v. Howe, 27 Or. 138, 44 P. 672; State v. Huffman, 39 Or. 48, 63 P. 1. We are unable to see any abuse of discretion in the action of the court below. While we have treated this assignment as though it had been regularly before us, as a matter of strict practice it is not. The affidavits for continuance are not made a part of the bill of exceptions, but merely come here with the transcript. This court has held that, if review of the decision on a motion refusing a continuance is desired here, the affidavits must be made part of the bill of exceptions. State v. Kline, 50 Or. 426, 93 P. 237.

The next assignment of error relates to the ruling of the court permitting the introduction of the record of certain disbarment proceedings against defendant in the Supreme Court. The prosecution offered a record showing certain charges preferred by deceased as prosecutor for the State Bar Association against defendant, accusing him, among other things, of drunkenness while trying a case in court; of issuing checks upon a bank wherein he had no funds; and of unlawfully affixing a notarial seal to certain pension papers; and also offered defendant's answer thereto, his plea, and the final judgment of the court suspending him from practice. This record was admitted, over defendant's objection as to its competency and materiality, coupled with a specific objection that it tended to prove the bad character of defendant, and to show that he had been guilty of other offenses than the one for which he was on trial, and was therefore highly prejudicial. It is plain from the evidence that the difficulty between defendant and deceased arose out of the disbarment proceedings prosecuted by deceased against defendant. The theory of the state was that defendant, being incensed at the prominent part deceased had taken in preferring charges of professional misconduct and dishonesty against him, in prosecuting them to final judgment, and thereafter refusing to sign a petition for his reinstatement as an attorney, sought him out and killed him as a matter of revenge; in other words, that these acts of the deceased, and their results to defendant, furnished the motive which actuated defendant to perpetrate the fatal act.

Evidence of motive, while not absolutely essential, is always admissible in prosecutions for murder. "When the corpus delicti has been proved in a prosecution for homicide, and the circumstances indicate that the accused was the perpetrator of the homicide, facts tending, even though remotely, to show a motive are admissible against him, though the jury should exercise great caution in such proof. And all evidence of whatsoever nature tending to throw light upon the relations existing between the accused and the deceased, and the feeling between them, is competent; the remoteness of the evidence of motive going to its weight, and not its admissibility. Though not necessary to the existence of malice in homicide, motive is frequently a constituent element of it, and the presence or absence of motive is always a subject of proof as a means of establishing the presence or absence of malice." Wharton on Homicide, (3d Ed.) 595. Defendant's counsel, while admitting this general proposition, contends that such proof cannot go to the extent of showing that defendant has been guilty of committing other offenses, but in this contention he is not borne out by the authorities. "Proof of the commission of another crime may be given when it tends to show motive for the homicide in question." Wharton on Homicide, § 596. Evidence of this character has been frequently admitted where the claim of the state was that the homicide had been committed in revenge, on account of ill feeling growing out of litigation or criminal prosecutions. State v. Geddes, 22 Mont. 68, 55 P. 919; State v. Bodie, 33 S.C. 117, 11 S.E. 624; State v. Welch, 22 Mont. 92, 55 P. 927; Butler v. State, 91 Ga. 161, 16 S.E. 984; Gillum v. State, 62 Miss. 547. In all the above-cited cases the record was admitted in evidence, the same as was done in the case at bar.

In the case of State v. Bodie, supra, the record introduced consisted of an affidavit, filed by deceased for the arrest of the defendant; the warrant of arrest issued thereon; the testimony of the state's witnesses; the recognizance given by the defendant; the indictment found in the trial court, and the nolle prosequi thereof by the district attorney. The Supreme Court of South Carolina held all these competent, except the testimony of the state's witnesses. In Butler v. State, supra, a warrant charging defendant with adultery, and his recognizance under it, were held to be competent as showing motive for killing the deceased, who had procured such warrant to be issued. In State v. Geddes, supra, an information was introduced in evidence charging defendant with an assault upon deceased, and also a complaint in a civil action by deceased against the defendant growing out of the assault. Both these were held competent evidence, as tending to show the state of feeling between the parties, and therefore a motive for the killing. Authorities on this subject might be multiplied, but further citations are needless. It is apparent from the evidence that the deceased both before the grievance committee of the Bar Association, and the Supreme Court, had vigorously prosecuted defendant for misconduct as an attorney; that ...