State v. Green

• Decision Date: 15 January 1929
• Citation: 273 P. 381,128 Or. 49
• Parties: STATE v. GREEN.
• Court: Oregon Supreme Court

273 P. 381

128 Or. 49

STATE v. GREEN.

Supreme Court of Oregon

January 15, 1929

In Bank.

Appeal from Circuit Court, Coos County; G. F. Skipworth, Judge.

Robert Green was convicted of murder in the first degree, and he appeals. Reversed and remanded.

Arthur K. Peck, of Marshfield, and Dal M. King, of Myrtle Point (Hugh Barclay, of Marshfield, on the brief), for appellant.

J. B Bedingfield, Dist. Atty., of Bandon, for the State.

BELT J.

The defendant was convicted of the crime of murder in the first degree, and was sentenced to suffer the death penalty.

The pivotal question in the case is whether the trial court erred in the admission of defendant's written confession. The offer in evidence of this confession presented a preliminary question of mixed law and fact for the court to decide. It was called upon to determine whether the state had established prima facie that the confession was freely and voluntarily made and was not the result of the influence of fear, hope, or promise of benefit held out to accused by a third person. This preliminary question was addressed to the court, and its decision will not be disturbed on appeal, unless the record discloses clear and manifest error. State v. Rathie et al., 101 Or. 339 199 P. 169, 200 P. 790; State v. Stevenson, 98 Or 285, 193 P. 1030; State v. Morris, 83 Or. 429, 163 P. 567. The procedure to be followed by trial courts, when confessions are offered in evidence, was clearly and accurately stated by Mr. Justice Harris in a concurring opinion in State v. Morris, supra, and approved by this court without dissent in State v. Stevenson supra. It need not be restated.

In determining whether the lower court erred, we do not review its findings upon conflicting evidence relative to whether or not the confession was voluntary. The inquiry is: Did the court, from the undisputed testimony offered by the state, properly conclude that the confession was freely and voluntarily made? Was the court wrong, as a matter of law, in its conclusions from undisputed evidence? This presents a legal question for review. It is tantamount to a demurrer to the evidence. Of course, if the confession was properly admitted, it was for the jury ultimately to determine its weight and effect. It is to be borne in mind that the state must affirmatively show that the confession was made under conditions not calculated to produce a false statement. As Justice McBride said in State v. Howard, 102 Or. 431, 203 P. 311: "* * * Acknowledgment of guilt is prima facie involuntary and imposes upon the state the burden of showing that it was not induced by threats or promises of favor."

Having made these general observations as to the law applicable to confessions, we turn to the facts and circumstances surrounding the making of the confession.

Caleb Green, a crippled and feeble man of about 65 years of age, is alleged to have been beaten to death with some blunt instrument at or near his cabin in Coos county, Or., during the early morning hours of November 21, 1927. On the evening of the same day, after a search and investigation of the premises, the body of the deceased was found, covered with ferns, about 50 feet from his cabin. The defendant, Robert Green, was suspected of the crime, and was arrested on the following day. In custody of the deputy sheriffs he was taken to the city hall at Marshfield, Or., where the district attorney, after warning the defendant that any statement made by him might be used against him, inquired at much length of defendant as to his knowledge of the crime. This examination was had before the official court reporter, and continued for several hours, as evidenced by the 104 typewritten pages of questions and answers. Before this self-constituted inquisitorial body the defendant was subjected to many searching questions by the deputy sheriffs and the district attorney. A Dr. Russell Keizer appeared and "testified" concerning certain blood stains on the garments of the defendant. He also examined the accused relative to scratches and bruises found on his body. No objections were interposed to any of the questions asked, as defendant was not represented by counsel. At this examination defendant strongly maintained his innocence, although his inquisitors, after much persistence, succeeded in obtaining a few minor damaging admissions against him. It might also be added that defendant was taken to the morgue where he was given the privilege of viewing the corpse of the man he was accused of having killed. After looking on the body, he was asked by the district attorney, "Well, how do you feel? Any different now?" and responded, "I don't feel a bit different now than I did before." At the conclusion of the examination, the defendant was taken to the county jail at Coquille.

About one week elapsed before he succeeded in obtaining the advice and benefit of counsel, although during his examination on November 22d he requested an attorney. The district attorney replied: "We will give you an opportunity at the proper time."

The statute (Or. L.) thus provides the procedure to be followed in case of arrest:

"§ 1746. If the crime charged in the warrant be a felony, the officer making the arrest must take the defendant before the magistrate who issued the warrant, or some other magistrate in the same county, as provided in section 1740."

"§ 1752. The defendant must, in all cases, be taken before the magistrate without delay."

"§ 1772. When the defendant is brought before a magistrate upon an arrest, * * * the magistrate must immediately inform him of the charge against him, and of his right to the aid of counsel, before any further proceedings are had."

It may well be said that the mere fact that the arresting officer ignored these provisions of the statute would not render the confession inadmissible, but we have deemed it proper to consider it as a sort of background for the picture.

On December 5, 1927--there being present: J. B. Bedingfield, district attorney; Frank Osmund, deputy sheriff; George Bohrer, deputy sheriff; W. P. Anderson, deputy sheriff; and Geo. F. Begg, court reporter--a further examination of the defendant was had to ascertain what knowledge, if any, he had concerning the commission of the alleged crime. Defendant did not appear by counsel. The district attorney again admonished the defendant that any statement he made must be voluntary, and that anything that he said might be used against him. This examination commenced at 9 o'clock in the evening and continued throughout the night until 6:30 in the morning. Witness the following as illustrative of the inquiries propounded to defendant to ascertain the truth:

"Q. You believe in fingerprints, don't you? You seen me what I did to you the other day. If I would prove to you that your fingerprints was on that baseball bat, would you believe it, after it was found down there by his body? A. I know my fingerprints ain't there.

"Q. Well, what would you say if I proved they was there?

"Q. (Deputy Sheriff) He says there was no blood on his hat either.

"Q. (Deputy Sheriff) Now listen; how would you explain it if I proved to you that your fingerprints were on that bat? A. My fingerprints wasn't on it.

"Q. Well listen, if I proved they was on it, what would you say? A. You can't prove it.

"Q. Now I am asking you if I proved that they was on there, that your fingerprints was on that bat and that bat was laying seven feet from that murdered man's body, what would you say if I proved it? What would you say? I want you to answer that question, what could you say? A. I know my finger-prints--.

"Q. (Interrupting) That is not what I am asking you. I want to know what would you say if I proved they were on there and a photograph taken of the fingerprints on it, what would you say? Now I want you to answer that question.

"Q. (Deputy Sheriff) Would the neighbors still be all damned liars? A. I know I never had that bat.

"Q. (Deputy Sheriff) Don't try to evade the question. What would you say if I proved that those prints was on that bat? I never touched that.

"Q. I want you to answer that question."

The record of the second hearing is represented by 224 pages of typewritten matter. No confession was obtained.

The next step taken by the state to ferret out this crime was on January 7, 1928. This was to secure the services of a detective named Carmen, who was employed by the county at $5 per day and expenses. Carmen was placed in the cell with the defendant, as a prisoner, where he remained for two days. No confession was obtained, although, according to Carmen, defendant said he killed Green in self-defense.

On January 31, 1928, there appears on the scene a high-powered detective named Barada, who was employed by the county to make clear the mysteries of this crime. He was placed in the cell with defendant, under the guise of a "bank robber," who had made a rich haul and had succeeded in "getting his man." The defendant and Barada became quite good friends. A conversation arose as to the impossibility of telling the difference between human blood and that of the lower animals. Barada, according to his testimony. advised defendant that "his attorneys were double crossing him" about such matter. Barada, who was called by the state to show that the confession obtained from defendant was voluntary, testified:

"And I questioned him regarding the crime and he wouldn't give out any information regarding it. In the meantime I conceived an idea that I could get a confession from Mr Green if I used the proper methods. I sent for Mr. Osmond to take me out. * * * So shortly after Mr. Osmond came and brought me down to his office, where I met the district attorney. The district attorney asked me how I was...