State v. Jennings

• Decision Date: 21 November 1906
• Citation: 87 P. 524,48 Or. 483
• Parties: STATE v. JENNINGS.
• Court: Oregon Supreme Court

87 P. 524

48 Or. 483

STATE v. JENNINGS.

Supreme Court of Oregon

November 21, 1906

Appeal from Circuit Court, Josephine County; H.K. Hanna, Judge.

Jasper Jennings was convicted of murder in the first degree, and he appeals. Reversed, and new trial ordered.

Jasper Jennings and his sister Dora were jointly informed against by the district attorney of the Third judicial district of this state for the crime of murder in killing their father, Newton M. Jennings, on September 7, 1905, in Josephine county, Or. In January, 1906, he was tried separately, convicted of murder in the first degree, and sentenced to be hanged, and appeals to this court. Five assignments of error are specified, and two of these can properly be considered as one. The record before us is meager in the extreme for a case involving human life, and the bill of exceptions covers only 25 pages of typewritten matter, and several of these pages are erroneously filled with the arguments of counsel on both sides, addressed to the court upon questions of the admissibility of evidence, and properly form no part of the bill of exceptions, as no exceptions are based thereon.

H.D Norton, for appellant.

Clarence L. Reames, Deputy Dist. Atty., for the State.

HAILEY J. (after stating the facts).

1. The record discloses that the deceased was shot during the night while in his bed in one corner of a small room in his home and that his two daughters, Dora and a younger sister occupied a bed in the opposite corner of the same room. L.B Wickersham, one of the first persons to arrive at the house after the discovery of the homicide, was called as a witness for the state, and, after testifying that "the corner of the room was spattered with blood," was asked: "Was there anything in that to indicate the direction it traveled, or, taking the direction it traveled from his head, was there anything to indicate in that where the shot was fired from?" To which question the defendant objected as calling for the opinion of the witness on a matter exclusively for the jury to determine, and therefore incompetent. The objection was overruled and an exception saved, and the witness answered: "The blood being in the corner, of course the bullet must have been fired--from the position of the bullet and the position of the head, that is--opposite from the corner in which the blood was found, which would be probably 10 feet north from the door inside." This question clearly called for the opinion of the witness as to where the shot was fired from, and his answer shows that he so understood it. The district attorney evidently regarded the answer as a conclusion of the witness and not a detail of facts from which the jury could draw its own conclusions, for he immediately asked the witness to "describe to the jury the appearance there--well, the way the blood was spattered in the corner, giving them the conditions there so that they might arrive at a conclusion as to where this shot was fired from." But the witness failed to do more than say the corner of the room was covered with blood and portions of skull. There is nothing in the record as to the position of the body, or the course of the bullet through the head, or the position of the head, or any other fact from which a conclusion could be drawn as to the direction or place from which the bullet was fired. These are all facts which could be sufficiently described and detailed to the jury so as to enable it to draw its own inference and conclusions, and in such cases opinion evidence is not admissible. State v. Barrett, 33 Or. 196, 54 P. 807; State v. Mims, 36 Or. 320, 61 P. 888. It was, therefore, error to permit the witness to give his conclusions as to the place from which the shot was fired. He should have been asked to detail the conditions as they were and the jury allowed to draw its own conclusions from the facts thus detailed. His conclusion as to where the shot was fired from, based upon what he saw, might be very different from that of the jury drawn from a description of the condition of the room, the position of the body, and other necessary facts upon which to base a conclusion.

2. John Evett, third cousin of defendant, and a witness for the state, who had testified at the coroner's inquest held over the body of Jennings on September 8, 1905, after testifying that he lived in a cabin near the house in which Jennings was killed, and that, on the night of the killing, he had heard the defendant let down and drive through some bars near his cabin, about 12 o'clock, also testified that he afterwards heard a shot that night and that it sounded in the direction of the house where Jennings was killed. He was then asked, "Do you know what time it was?" and answered, "Well, sir, I imagine it was somewhere in the neighborhood of 4 o'clock; to the best of my knowledge; I could not say positive." To show that he had, at another time, made a different statement as to the time when he had heard the shot fired, he was asked if he had not been called as a witness at the coroner's inquest September 8th, and was asked to identify his signature to the notes of his testimony made at the inquest, and did so, and was then shown the notes of his testimony taken by the coroner's clerk, which are copied into the record, as follows: "Jno. Evett, Granite Hill, is sworn. Resides across road from house. Slept there last night. Saw him at Sill's barn at 7 p.m. Asked about Ryle. Stayed at house a few minutes. Chapin came later. Heard music and dancing until quite late. Heard shot fired about 12 o'clock. Heard team stop at bars and drive on. After that heard shot. Made quite noise. Sounded like shot. Heard no other noise. Was not quite awake. Nothing else heard. Only shot. Couldn't tell where. Report sounded in direction of house. Heard of no trouble with family. Don't know whether was drunk or not. Has 25-35 gun there in camp. Knows of no pistol. John Evett." He was then asked about the time he heard the shot as stated in the notes of his testimony taken at the inquest, and said, in effect, that it was a mistake, and he was positive he did not say he heard the shot fired about 12 o'clock when he testified before the coroner. He also said that one Mert Sills had been requested to take down the testimony at the inquest and did so, and that when the statement in evidence had been presented to the witness it had not been read to him, but he had been told to "sign that right here; sign your name under this," and that he did so without reading it over. Thereafter the coroner, W.H. Flanagan, was called as a witness for the state, and, after testifying that he did not think the testimony of Evett taken at the inquest had been read by or to Evett before signing, and after having been shown such testimony, he was asked. "That statement that he heard the shot about 12 o'clock--do you remember how that was in his testimony?" An objection was interposed on the ground that the state was attempting to impeach its own witness and the question was incompetent, irrelevant, and immaterial. The objection was overruled and exception allowed, and the witness answered: "Why, it was as near as I can recollect: this was his evidence, and I asked him what time, if he heard any noise or shot or anything. He said about--along about that time of night. I asked him what time as near as he could judge. He said something--he said it was 12 or about 12 o'clock, from what he could judge of the time he had been asleep; it was along about that time. I didn't know that it was put down just at 12, but I see here the clerk put the time at 12 o'clock.

He said as near as I can recollect it was about as near as he could judge the time from the time he went to bed; it was about 12 o'clock or a little after, along there, but I see my notes here say 12." It is contended on the part of appellant that the court erred in admitting this testimony without some showing of surprise on the part of the state in the testimony of the witness regarding the time when he heard the shot, and further that the testimony of the witness having been reduced to writing, it was the only evidence which the court should have admitted of former statements of the witness. The first contention is untenable for the reason that no such objection was made on the trial to the admission of the testimony. The objection made being that it was not admissible because it was intended to impeach the state's own witness. The record shows that on the night of the homicide the defendant started from his cabin about 6 o'clock in the evening with a horse and cart and drove down to his father's house where he stopped for a few minutes, got his overcoat, and during that time had some conversation with his sister Dora, and then drove on down the road through the bars near the witness Evett's cabin, and on to the Robert's place and spent the evening there, and came back during the night and drove by his father's house, passing through between 12 and 1 o'clock, and reached his own cabin between 12 and 2 o'clock, and there is no evidence that he left the cabin again that night, and his partner, Harvey, testified that they slept in the same bed. It was evidently the theory of the state, in view of these facts, that the homicide, if committed by the defendant, was committed about 12 o'clock at night, and the testimony of the witness that the shot was fired about 4 o'clock in the morning, was clearly prejudicial to the theory of the prosecution and affected the merits of the case, and under section 850, B. & C. Comp., the prosecution had a right to show that the witness had made at other times statements inconsistent with his present evidence. As stated in Langford v. Jones, 18 Or. 326, 22 P 1071, "the object of the section (850) was to prevent ...