State v. Hatcher

• Decision Date: 13 April 1896
• Parties: STATE v. HATCHER.
• Court: Oregon Supreme Court

44 P. 584

29 Or. 309

STATE v. HATCHER.

Supreme Court of Oregon

April 13, 1896

Appeal from circuit court, Coos county; J.C. Fullerton, Judge.

W.A Hatcher was convicted of manslaughter, and appeals. Reversed.

W.R. Willis and A.M. Crawford, for appellant.

C.M Idleman, Atty.Gen., for the State.

MOORE J.

The defendant was indicted for the crime of manslaughter, alleged to have been committed in the killing of one Frank H. Blair and upon conviction thereof was sentenced to the penitentiary for the term of one year. From this judgment he appeals, assigning several alleged errors, some of which we will consider.

1. It is considered by counsel for the defendant that the court erred in admitting in evidence, over their objection and exception, a written statement made by him at his preliminary examination, purporting to detail the manner in which the deceased was killed; while counsel for the state maintain that the defendant, having at the trial testified to the same state of facts embraced in the statement, the error, if any, was not prejudicial. The introductory statement by the magistrate that "defendant was informed of his right to make a statement, and proceeded as follows," would seem to imply that he was not informed of his right to waive making a statement, and that such waiver could not be used against him. The statute provides that: "When the examination of the witnesses on the part of the state is closed, the magistrate must inform the defendant that it is his right to make a statement in relation to the charge against him; that the statement is designed to enable him, if he sees fit, to answer the charge and explain the facts alleged against him; that he is at liberty to waive making a statement, and that his waiver can not be used against him on the trial." The defendant, not having been notified of this last clause by the magistrate, may have understood, when informed of his right to make a statement, that it was incumbent on him to make one, and that in doing so he was obeying a legal mandate, and not making a voluntary statement. The right to waive making such a statement implies that if one be made it is voluntary, and therefore admissible in evidence, but it cannot be regarded as being voluntarily made unless it appears that the accused was informed by the magistrate of his right to waive it, for, if he made the statement under the belief that it was required of him by the magistrate, it is inadmissible against him. State v. O'Brien (Mont.) 43 P. 1091. There is nothing in the record to show that the statement was voluntarily made by the defendant, and hence it could not be admitted in evidence over his objection. It was inadmissible for another reason. Subdivision 4 of section 1598, Hill's Annotated Laws of Oregon, provides that the statement, when voluntarily made, must be signed and certified to by the magistrate. There is no certificate appended to the statement in question, nor is it signed by the magistrate, except that his name appears thereon as a witness in attestation of the defendant's mark used for his signature. The statute having provided the manner in which the statement must be authenticated, would seem to exclude oral evidence in aid of a faulty execution, or to supply the necessary certificate. If the statement was voluntary, the magistrate's certificate, showing that fact, when duly signed by him, would render it admissible in evidence without any other proof of its authenticity, and, this being so, it follows that, without such certificate and signature, it is inadmissible.

The next question is whether the admission of this incompetent evidence was an injury affecting the substantial rights of the defendant. "The admission of incompetent testimony," says Mr. Thompson in his work on Trials (volume 1, § 707) "will not, in many cases, avail to work a reversal of a judgment; as, for instance, where such testimony relates to a question which is not in dispute, and consequently could have had no influence on the result, or where the finding must have been the same on the evidence had the incompetent evidence been excluded." In criminal cases, however, unless the record conclusively shows that the error in the admission of incompetent evidence was not prejudicial to the party objecting, the judgment should be reversed. Coleman v. People, 58 N.Y. 555. Tested by this rule, the defendant could not have been prejudiced by the admission of the statement complained of, for he testified to the same state of facts on the trial, and was corroborated by witnesses for the state with whom he had conversed concerning the matter. There being no dispute about the facts detailed in the statement, the error was harmless, and could not have injured the defendant. State v. Kraft, 20 Or. 28, 23 P. 663.

2. It is contended that the court erred in permitting the prosecuting attorney, in his closing argument, to comment upon the effect of the probable testimony of the defendant's wife if called as a witness, and the failure of the defendant to produce her. The record discloses that the defendant's counsel, in their argument to the jury maintained that the deceased was killed while attempting to commit a forcible felony on the defendant's wife. The district attorney, replying thereto, said in substance: There were but three persons present at the tragedy,--the defendant, his wife, and the deceased; that the voice of the deceased was hushed in death; that the state could not call Mrs. Hatcher as a witness, and that it was in the power of the defendant to have produced her; that she could have told all about the affair; and that, if present, her testimony would have been adverse to the defendant, otherwise he would have secured her attendance, but failing to do so is proof that her testimony would have been against the defendant. The defendant's counsel objected to this language, for the reason that the absence of the defendant's wife was no evidence of his guilt, but, the objection having been overruled, an exception was allowed. As an excuse for the use of the language complained of it is insisted that it was provoked by the argument of the defendant's counsel in which they claimed that the felony attempted by the deceased on the defendant's wife was forcible, which fact was denied by the prosecuting attorney. The privilege of counsel, as the representative of a party, to address the jury upon the evidence introduced at the trial of a cause has become firmly fixed in our jurisprudence. It is the duty of the advocate, as an officer of the court, to present to the jury a word panorama of the facts proven before them, and in doing so he is often liable to paint in too glowing colors the scenes that are most favorable to the party whom he represents, or shade in deepest black those views that seriously affect the adverse party. Having done so, the court, out of a spirit of fairness to each side, often permits the opposing counsel to answer such an argument, which he frequently does by shifting the scenes, hoping thereby to be able to obliterate or distort the picture so presented, and exhibit to the jury an entirely different view of the evidence. In this the party whose counsel provoked the reply can find no just cause of complaint. Mr. Elliott, in his work on Appellate Procedure (section 672), speaking on this subject, says: "Where the opposite counsel provokes the misconduct...