State v. Goff

• Decision Date: 09 June 1914
• Citation: 142 P. 564,71 Or. 352
• Parties: STATE v. GOFF ET AL.
• Court: Oregon Supreme Court

142 P. 564

71 Or. 352

STATE v. GOFF ET AL.

Supreme Court of Oregon, En Banc.

June 9, 1914

Appeal from Circuit Court, Grant County; Dalton Biggs, Judge.

Lester Goff was indicted jointly with four other persons for larceny of cattle, and, from a judgment of conviction, he appeals. Affirmed.

A. D. Leedy, of Canyon City, for appellant. V. G. Cozad Dist. Atty., of Canyon City, and James A. Fee, of Pendleton for the State.

RAMSEY J.

On the 23d day of May, 1913, the grand jury of the county of Grant returned an indictment charging J. B. Jingles, Ben Colvin James Clark, Lester Goff, and Monard Fix with the crime of larceny, in Grant county, committed on the 25th day of August, 1912, of 19 cows and 6 steers; 16 of the cows and 5 of the steers being the property of J. T. Johnson, and 3 of the cows and one of the steers being the property of Felix A. Johnson, all of said cows and steers having been stolen as one act, at the same time and place. This indictment charges that the defendants acted together in the committing of said crime. The defendants Colvin, Clark, and Goff were arrested, but Jingles and Fix were not apprehended. The three that were arrested were arraigned and each pleaded not guilty, and each demanded a separate trial. The defendant Lester Goff was tried and found guilty. The verdict of guilty was returned on November 22, 1913, and the defendant Goff was sentenced on December 6, 1913. He appeals and assigns the commission of 32 alleged errors, for which he asks a reversal of the judgment. The result of the case against the other defendants is not relevant to any matter on this appeal, as they demanded separate trials, and the case as to them was not disposed of until after the termination of the trial of Goff.

1. When the evidence in chief for the state was in, the defendant moved the court for an order dismissing the case as to the defendants Clark and Colvin, on the ground that there was not sufficient evidence to put them on their defense, in order that they might be witnesses for him, but the court denied said motion. Each of the defendants demanded a separate trial, and the defendant Goff was on trial when this motion was made; but Colvin and Clark were not on trial, and there was no way in which the court below could know what evidence would be produced against them prior to their being put on trial, unless the prosecution had stated to the court what evidence it expected to produce against them. Evidence that would be admissible against Colvin and Clark might not be admissible against Goff. The trial court could not properly assume that there would be no evidence produced against Colvin and Clark except what was given on the trial of Goff. If, after the supposed conspiracy for the stealing and disposal of the cattle was ended, Colvin and Clark had admitted their guilt, such admission could not have been proved in the case against Goff, but it would have been admissible against them.

Section 1531, L. O. L., provides that where several persons are charged in the same indictment with a crime, and the court is of the opinion that, as to a particular defendant, there is not sufficient evidence to put him on his defense, the court must, if requested to do so by another defendant, discharge such defendant, in order that he may be a witness for his codefendant. Under said section, the trial court is required to discharge a defendant, in order that he may be a witness for a codefendant, only when the court is of the opinion that there is not sufficient evidence against such defendant to require him to be placed on his defense, and it necessarily follows that, if the court is not of that opinion, it should not discharge such defendant.

If Colvin and Clark had been on trial with Goff, the trial court would have been in a position to know what evidence there was against them, and, on being requested so to do, would have dismissed the case against them, if it was of the opinion that there was not sufficient evidence to justify putting them on their defense. The grand jury had indicted them, and that was prima facie evidence that there was sufficient proof to justify their indictment. Official duty is presumed to have been duly performed, and hence we must presume that the trial court was not of the opinion that there was not sufficient evidence to put Colvin and Clark on their trial, and hence denied said motion.

2. On page 32 of the appellant's brief, counsel for the appellant groups together, for convenience, assignments 1, 2, 3, 4, 5, 6, 7, 8, 11, 12, and 13, and says that they may all be considered under one head, and that they refer to the supposed error of the court in refusing to strike out the testimony of Grover Andrus, Mrs. Stella Knapp, and Mary Andrus.

When the state rested its case, the defendant, by his counsel, filed a motion to strike out testimony introduced by the state as follows, to wit: All of the evidence of the witness Grover Andrus as to the statements made to said witness by Ben Colvin, one of the defendants, relating to any bulls or cattle belonging to J. T. or Felix A. Johnson, and also all of the evidence of said witness, and all of the evidence of J. T. Johnson, in relation to statements made to him by Ben Colvin in regard to bulls, and all the evidence of said J. T. Johnson in regard to any acts or conduct of Ben Colvin in relation to any bulls or cattle of any kind belonging to J. T. or Felix A. Johnson, for the reason that said evidence is incompetent, irrelevant, and immaterial and not responsive to any allegation in the indictment, and because no foundation has been laid therefor, and the same is not binding on the defendant Goff, now on trial. Said motion asked also that all the evidence of Stella Knapp and Mary Andrus be stricken out for the reason that the same is incompetent, irrelevant, and immaterial, and does not tend to establish any of the allegations of the indictment, and to strike out also all evidence in relation to the $100 bill for the same reasons. When said motion was made, counsel for the state consented that the court sustain that part of said motion pertaining to the evidence regarding the bulls and the testimony of Grover Andrus, for the reason that the state had not been able to connect that point in a way to make it legitimate against the defendant on trial.

The court thereupon struck out the evidence of Grover Andrus in which he testified to statements relating to taking and driving away the cattle or bulls of Johnson, and as to statements made by Colvin to Andrus, and also the evidence of J. T. Johnson in reference to the bulls that he owned and were driven away by Colvin. The court struck out said evidence and instructed the jury that all evidence of Johnson as to the acts or conduct of Colvin as to said bulls was inadmissible and should not be considered by them in rendering their verdict. When said evidence was offered, it was admitted on the express condition that the state would connect it with the case charged against the defendant, and that, if the state failed so to connect it, it would be taken from the jury by the court. The state having failed to connect it with the crime charged, the court struck it out, and, at that time, instructed the jury to disregard it in their deliberations. When the court gave its final charge to the jury, it again charged them that said evidence had been stricken out, and that they should not consider it in their deliberations.

In relation to withdrawing from the jury inadmissible evidence, 11 Ency. Pl. & Pr. p. 307, says:

"It is very generally settled that error in admitting illegal evidence may be cured by instructions directing the jury to disregard it, although there are some decisions which flatly deny the doctrine that error may be thus cured."

38 Cyc. 1630, 1631, says:

"When evidence improper for the jury to consider has been introduced, the court may and should withdraw the evidence and instruct the jury to disregard it. If this is done, it is ordinarily held sufficient to cure the error, the presumption being that no prejudice resulted, and it is only when it is reasonably apparent that improper evidence has affected the verdict that there is ground for reversal."

In State v. Eggleston, 45 Or. 353, 77 P. 740, the court says:

"The court, over objection and exception, admitted in evidence alleged declarations of Florence Cline, not made in the presence of the defendant, to the effect that he was guilty of the crime charged; but thereafter the jury were instructed not to consider such evidence, and any error that may have been committed by the admission of such declarations was cured by the instructions."

In State v. Foot You, 24 Or. 66, 32 P. 1031, 33 P. 537, the court below had admitted in evidence a pistol with the understanding that the state would at some subsequent stage of the trial connect it with the defendant, and, the state having failed to do so, the court withdrew it from the case, and this court held that there was no prejudicial error committed by the trial court.

The weight of authority seems to be to the effect that where the trial court admits in evidence incompetent testimony, and subsequently withdraws it from the case and instructs the jury to disregard it in their deliberations, such withdrawal and instruction cure the error in its admission, unless it is apparent in some manner that such excluded evidence had some effect upon the verdict. But we hold that the withdrawal of the incompetent evidence and the instruction to the jury to disregard it should be so emphatic as to leave no doubt in the minds of jurors that such evidence is out of the case and is not to be considered by them for any purpose. State v Rader, 62 Or. 40, 124 P. 195. We hold that the withdrawal of the...