State v. Jordan

• Court: Oregon Supreme Court
• Writing for the Court: BEAN, Justice.
• Citation: State v. Jordan, 146 Or. 504, 26 P.2d 558 (Or. 1933)
• Decision Date: 09 November 1933
• Parties: STATE v. JORDAN.

26 P.2d 558

146 Or. 504

STATE v. JORDAN.

Supreme Court of Oregon

November 9, 1933

In Banc.

Appeal from Circuit Court, Klamath County; W. M. Duncan, Judge.

Theodore Jordan was convicted of murder in the first degree, and he appeals.

Affirmed.

KELLY and ROSSMAN, JJ., dissenting.

Irvin Goodman and Leo Levenson, both of Portland (Gus. J. Solomon, of Portland, and Lawrence Seltzer, of Seattle, Wash., on the brief), for appellant.

T. R Gillenwater, Dist. Atty., of Klamath Falls (D. E. Van Vactor of Klamath Falls, on the brief), for the State.

BEAN Justice.

It appears that on June 3, 1932, the Southern Pacific train No 16 arrived in Klamath Falls at 10 o'clock p. m. Its dining car steward was F. T. Sullivan. Upon arrival the dining car was cut out of the train and switched to a side track in the railroad yards. The dining car crew consisting of eight negroes, retired at about 9:45 p. m., just prior to its arrival in Klamath Falls; the crew sleeping on improvised berths made up in the dining car. While the dining car was in the railroad yards, at about 11 o'clock p. m. of June 3, 1932, one of the dining car waiters, Curtis Manuel, was awakened on hearing groans and moaning coming from the berth of the steward, Sullivan, in the dining car. Manuel called to the steward to ascertain the reason for the noise, and, getting no response, got out of his berth and walked over to Sullivan's berth, opened the curtains, and saw him sitting up, both hands to his head, and bleeding profusely. Sullivan was unable to speak, and Manuel called the crew. The lights on the car were turned on and a brakeman who was in a chair car notified. First aid was rendered to Sullivan and obviously he was badly injured. He was taken from the train to a hospital in Klamath Falls and later removed to the Southern Pacific Hospital in San Francisco, where he died October 15, 1932. An autopsy showed his death resulted from the felonious assault occurring on June 3, 1932.

It is contended by counsel for defendant that substantial error was committed by the trial court in not excluding the jury at the time the testimony in regard to the competency of the confession of defendant was being heard. The defendant made no request to have the jury excluded from hearing the testimony. The district attorney suggested that the testimony be taken outside of the hearing of the jury. Counsel for defendant requested that the defendant be permitted to contradict the testimony offered to show that the confession was voluntarily made and that the defendant be permitted to take the stand.

Notwithstanding the condition of the record, we are inclined to consider the question now raised. After hearing the testimony pro and con, the court admitted the confession in evidence. It is determined to be the law that when, upon the trial of a criminal cause, a confession of a defendant is offered in evidence, it then becomes necessary for the trial court to ascertain and determine, preliminary to its admission, whether the confession is competent and was obtained from the defendant free from the influence of hope or fear, exercised by a third person over the prisoner's mind. State v. Moran, 15 Or. 262, 14 P. 419; State v. Rogoway, 45 Or. 601, 78 P. 987, 81 P. 234, 2 Ann. Cas. 431; State v. Blodgett, 50 Or. 329, 92 P. 820; State v. Roselair, 57 Or. 8, 109 P. 865; State v. Garrison, 59 Or. 440, 117 P. 657; State v. Spanos, 66 Or. 118, 134 P. 6, 7; State v. Morris, 83 Or. 429, 163 P. 567, 574; State v. Howard, 102 Or. 431, 203 P. 311; State v. Green, 128 Or. 49, 273 P. 381.

The general rule is that the preliminary investigation made by the court, preliminary to the admission of a confession, should be heard out of the presence or hearing of the jury, and if it should be made to appear at any time during the progress of the trial that the confession was made under such circumstances as to render it incompetent as evidence, it should be excluded by the court. When the confession is admitted in evidence as competent and is not rejected by the court during the trial, its weight and value as evidence are for the jury. Although the preliminary investigation into the voluntariness of the confession should properly take place in the presence of the court alone, the hearing of the preliminary matter in the presence of the jury is not prejudicial where the confession is admitted in evidence; for in such a case it is for the jury to decide ultimately what weight to give to the confession. 1 R. C. L. 529, § 123.

The confession of the defendant, whether in the course of a judicial proceeding or to a private person, cannot be given in evidence against him when made under the influence of fear produced by threats, nor is it sufficient only to warrant his conviction without some other proof that the crime has been committed. Section 13-932, Oregon Code 1930.

The better practice is that all doubtful questions of evidence or procedure should not be proposed or discussed in the presence of the jury. The court should exclude the jury while hearing the preliminary testimony on the question of the admissibility of evidence generally, or documentary evidence. Whether offers of proof should be made out of the presence or hearing of the jury is discretionary with the trial court. It has been held that an offer in the presence of the jury is not error in the absence of a request that the jury retire. 64 C.J. 135, § 156.

We do not commend the procedure in the present case, but fail to see how the rights of the defendant were prejudiced.

The court should determine, prior to permitting the confession to go to the jury, whether it was or was not voluntary; and in deciding the question, it is vested with a considerable measure of discretion, which should be exercised with great care, to the end that the due and proper enforcement of the law on the one hand is not impeded, and that no injustice is done defendant on the other. The court may, after it has admitted a confession as evidence, rule it out, if satisfied by any subsequent evidence that it was not a free and voluntary one. 16 C.J. 735, § 1513.

If the trial judge finds that a prima facie showing is made to warrant the finding that the confession was voluntary and allows it to go to the jury, then that tribunal has the right to consider all of the evidence in determining how much weight and credibility should be given to the confession. Hence, it was competent for the state to impeach the testimony of the defendant, even after the confession had been admitted, as the triers of fact were the arbiters of that question in passing upon its weight and credibility.

In discussing the question of the admissibility of a confession in the case of State v. Humphrey, 63 Or. 540 at page 553, 128 P. 824, 829, Mr. Justice Burnett records the following language: "The admissibility of a confession is in the first instance a mixed question of law and fact to be determined by the judge who hears the case. In the nature of things much latitude must be given to that judicial officer in the decision of such questions. His judgment on that point is not to be disturbed, unless there is apparent and manifest error." Citing authorities.

In this state it has been held that the matter is in the discretion of the trial court and unless abused would not be considered error. State v. Roselair, supra; State v. Spanos, supra; State v. Peare, 113 Or. 441, 233 P. 256; State v. Morris, supra.

In State v. Roselair, supra, a criminal case in which the confession was admitted in evidence, the trial court, to facilitate the dispatch of business, permitted such testimony to be given by witnesses in the hearing of the jury, and it was held its action in this respect was a matter of discretion which was not abused, and hence in denying the request no error was committed. In the present case no request was made by the defendant that the testimony should be heard by the court alone.

Mrs. Callie M. Timms, a witness for the state, who had known defendant since 1928, and whom the defendant calls "mother," testified that she talked with the defendant Jordan on Monday, after the date of the alleged crime, and he said he was not guilty; that afterwards she was informed that Theodore wanted to talk with her about the case, and she went over and saw him. Upon being asked who was with her when she talked to Theodore the second time, on Tuesday, when he was going to tell the truth, she answered:

"A. I was alone, first-you remember, I was alone and then when I sent for you I was to tell the story both to you and Mr. Low. I did not feel I wanted to trust myself with what Theodore said: I just wanted you to know it, how he said it. ***

"The Court: (To witness) When you went over and saw Theodore Jordan on this particular day, did he tell you he wanted to make a statement to you? A. Well-

"The Court: What were his words? A. Well, no, he said-I want to be sure about it, but then Theodore said,-I do not know; but, anyway, he said he would tell me the truth about it. I said, well, alright I wanted him to. So then he commenced to tell me."

She testified further:

"I talked to him, and I did not want to trust my memory of all he said so I asked if I could send for you and Mr. Low, and he tell the story before both of them. He said yes. So I sent for both of you but only Mr. Low came. Then he told this story.

"Q. In the presence of Mr. Low? A. In the presence of Mr. Low.

"Q. He admitted to you, then, to begin with, before Mr. Low had come into the room, that he was guilty of the crime; is that correct? A. He just told me, just the same as he told Mr. Low.

"Q. And when Mr. Low came in, at your request, and with his agreement, it was allright with him was it?"

Upon being asked to tell...