State v. Houghton

• Decision Date: 30 March 1903
• Parties: STATE v. HOUGHTON.
• Court: Oregon Supreme Court

71 P. 982

43 Or. 125

STATE v. HOUGHTON.

Supreme Court of Oregon

March 30, 1903

Appeal from Circuit Court, Multnomah County; Arthur L. Frazer Judge.

Charles Houghton, alias Chick Houghton, was convicted of an assault with intent to rob, and he appeals. Reversed.

W.T Hume, for appellant.

A.C. Spencer, Dep. Dist. Atty., for the State.

BEAN J.

The defendant was charged with the crime of robbery from the person of one Balch, by assault and putting in fear, and upon his trial was convicted of an assault with intent to rob. Balch was assaulted by three men, and robbed of a check for $7, and $20 to $25 in money, about 11 o'clock on the night of November 7, 1902, on a street in the "North End" of the city of Portland. A short time before the robbery he was in the Mint saloon, and while there received change for a $20 gold piece. Several persons, strangers to him, were in the saloon at the time, one of whom he testifies was the defendant. After receiving his change he went out on the street, where he was accosted, as he says, by the defendant, who inquired if he was a stranger in town, and receiving an answer in the affirmative, said that he was also a stranger, and suggested that they walk around and see the town together. They soon after started, and had gone but a short distance when two persons suddenly stepped out in front of them, and, with the aid of defendant, as Balch testifies committed the robbery. Balch immediately reported the crime to the police. At the trial he testified, without objection that the morning after the robbery he recognized a photograph of the defendant at the police station as being that of one of the persons engaged in the commission of the crime. Joseph Day was thereupon called as a witness for the prosecution, and, after testifying that he was a member of the detective force, and detailed to inquire into the commission of this particular offense, stated that Balch described to him one of the men engaged in its commission, and said that he would know him if he saw him; that he asked Balch if he thought he would recognize the picture of the man, and took down the book belonging to the office, containing photographs of sundry persons. Objection was made to this testimony because it was hearsay, but the objection was overruled, and the witness continued: "I took down the book, and turned over, page by page, from A, B, C, all through, and let him look at the pictures, and he came to Houghton's picture, and he said, 'That is the man.' " A motion was thereupon made to strike out this evidence, and the district attorney remarked that he had no objection. The court, however, ruled that it might be stricken out if the district attorney consented, but that, in its opinion, it was competent. Exception was taken to the ruling as to the competency of the testimony, when the court remarked: "I think the fact that he was able to pick out his picture is material evidence in this case." The motion to strike out was renewed and overruled. The defendant, testifying in his own behalf, among other things, in response to questions of his counsel, said that his picture had been taken and was at the station because he would not act as a "stool pigeon" for Detective Day; that he was walking along the street one day, when the detective seized him, took him to the station, and had his picture taken, without any charge having been preferred against him. On cross-examination he was asked: "You say that Joe Day just walked out on the street, and run you into the station, and took your photograph in the gallery? A. That is exactly what he did. Q. I will ask you if it is not a fact, and that you know it, that the reason that picture was taken was because you held up a man at the point of a gun, and another man robbed him, and you ran up into a house and jumped out of the window, and as soon as they arrested you they had your photograph taken?" Objection was made to this question, and the court requested to instruct the jury to disregard it, but the request was denied, and the examination proceeded: "Q. I will ask you if it is not a fact that you saw Joe Day in Seattle, near the corner of Second avenue and Yesler street, and when you saw him you ran and hid in a stairway? A. No; I did not. Q. You did not see him over there at all? No, sir; I did not. Why should I run from him? Q. Probably you know. *** You did not resist the taking of that picture, did you? A. Yes; I did. I told them they had no right to take that picture; I was not arrested for nothing; that I could not walk down the street; it was a funny thing, when I was not arrested, that I could not turn a corner but what Joe Day was near at hand." Objection was made to this question, but overruled by the court. "Q. You know that a little while before that you had stolen $200?" An objection was sustained to this question, but the witness answered, "It ain't so;" and upon motion this was stricken out, and the jury instructed...