State v. Kelley

• Decision Date: 22 June 1926
• Citation: 247 P. 146,118 Or. 397
• Parties: STATE v. KELLEY ET AL. [a1]
• Court: Oregon Supreme Court

247 P. 146

118 Or. 397

STATE v. KELLEY ET AL. ^[a1]

Supreme Court of Oregon

June 22, 1926

In Banc.

Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge.

Ellsworth Kelley and another were convicted of murder and they appeal. Affirmed.

Will R. King and Martin L. Pipes, both of Portland for appellants.

John H Carson and Allan G. Carson, both of Salem (Lyle J. Page, of Salem, on the brief), for the State.

BURNETT J.

The defendants Kelley and Willos, together with one Tom Murray were jointly indicted by the grand jury of Marion county in an indictment, the charging part of which is as follows:

"The said Tom Murray, Ellsworth Kelley, and James Willos on the 12th day of August, A. D. 1925, in the County of Marion and state of Oregon then and there being, did then and there unlawfully, feloniously, purposely, and of deliberate and premeditated malice kill one John Sweeney by shooting him, the said John Sweeney, with a pistol, contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Oregon."

Having been convicted of murder in the first degree without recommendation by the jury, they were sentenced to death and have appealed.

In the bill of exceptions presented by them, there is no objection to the charge of the court to the jury at the trial. We are urged to consider some criticisms made by industrious counsel against some features of the charge. In State v. Cody, 18 Or. 506, 23 P. 891, 24 P. 895, it was held that the defendant could raise exceptions to the charge in this court for the first time without having made any objections at the trial, but in State v. Foot You, 24 Or. 61, 32 P. 1031, 33 P. 537, this doctrine was distinctly repudiated, and State v. Cody was expressly overruled on that point. The overruling of State v. Cody was followed also in State v. Daley, 54 Or. 514, 103 P. 502, 104 P. 1, and State v. Brinkley, 55 Or. 134, 104 P. 893, 105 P. 708. A leading case is Kearney v. Snodgrass, 12 Or. 311, 7 P. 309, which holds that:

"* * * it is not error simply, but error legally excepted to that constitutes ground for reversal."

That case is firmly implanted in our jurisprudence as a guiding principle and has never been disturbed from that date to this. We must, therefore, decline to consider exceptions not embodied in the bill.

Of the 28 assignments of error mentioned in the brief of the defendants, Nos. 1, 2, 4, 5, and 11 are not in the bill of exceptions. It is assigned also as error in No. 3 that the court was wrong in allowing Dr. Prime to testify about wounds on the body of James Milton Holman, and in Nos. 8 and 9, the defendants complain about allowing the witness Dalrymple to testify about a notebook of one Bert (Oregon) Jones, but there is not enough in the bill of exceptions in the way of recitation of testimony to explain these assignments.

In assignments Nos. 6 and 7 the defendants complain about admitting in evidence the commitment of themselves and the above-named Jones to the penitentiary. These documents were admissible to explain the situation and show that all of them were convicts and to be considered with other evidence tending to show that they were in the act of escaping from confinement when the homicide was committed.

In assignments Nos. 10 and 12, the defendants claim that the court was wrong in admitting the testimony of a stenographer about statements of the defendants made to the district attorney without first having shown that defendants were not coerced, but made the declarations voluntarily. A careful reading of the subject-matter involved discloses no confession of guilt on the part of the defendants. On the contrary, they denied any participation in the killing of Sweeney or any attempt to kill him. The defendants contend that it must appear that confessions were made voluntarily and without any fear or compulsion exercised upon the defendants making them. Granting for the moment that the statements reported by the stenographer were indeed confessions or distinct admissions of guilt, the admissibility of any inculpatory statement of defendants is a question of law in the first instance for the court, and, in the absence of any showing on that subject in the bill, we must presume that the court did its duty and required such a showing to be made. There is no challenge in the bill to the sufficiency of any showing. Section 1781, Oregon Laws, referred to by the defendants in their brief, refers to a judicial examination of a charge before a magistrate, and, in that instance, it is made the duty of the magistrate to inform the defendant that it is his right to make a statement in relation to the charge against him. This section, however, does not refer to any case such as that disclosed in the evidence, where the defendants are said to have had conversation with the district attorney concerning their presence and actions at the time Sweeney was killed. We have carefully considered the citations of counsel representing the necessity of confessions being voluntary, particularly the case of Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568. That precedent was discussed in State v. Morris, 83 Or. 429, 163 P. 567, and was not deemed controlling although the case for coercion of the defendant was stronger than in this instance.

A kindred question is raised in the assignment of error No. 13, where the defendant Willos was called as a witness without having been informed that it was unnecessary for him to give testimony regarding himself, but in this instance, as disclosed by the bill, he was called by his own counsel as a witness in his own behalf. Under such circumstances there is no requirement of law that the court or the prosecution shall interpose and warn him about his legal rights.

It is said a mistake was made by the court in admitting a knife in evidence. The testimony recited in the bill discloses that the codefendant Murray was armed with a knife at the time the defendants escaped from the penitentiary, and that this knife was found in the vicinity where the defendants went into hiding immediately after their escape. There was no error in admitting it in evidence.

As a fifteenth objection, error is assigned with reference to shots having been fired into the "bull pen," a designation of a certain place of confinement at the penitentiary. The bill discloses that the defendant Murray was called as a witness on behalf of the defendants, and on direct examination was asked if it was a current report among the prisoners that shots were fired into the "bull pen" by the guards and he answered, "Yes." On motion of the district attorney, the answer was stricken out. There was no error in this, for it was not pretended that it was part of the res gestæ or that it was any more than a current report among the convicts.

In the seventeenth and eighteenth assignments the defendants object to cross-examination of themselves while they were on the witness stand. Kelley was asked if he had got into trouble in Iowa, and a like question was asked of Willos about his alleged conviction of crime in Oklahoma. Whether or not this was relevant cross-examination we are unable to discern in the absence of a report of what the direct examination was.

In Raffel v. The United States of America, 46 S.Ct. 566, 70 L.Ed. 1054, decided by the Supreme Court of the United States June 1, 1926, it is said:

"The immunity from giving testimony is one which the defendant may waive by offering himself as a witness. Reagan v. United States, 157 U.S. 301, 15 S.Ct. 610, 39 L.Ed. 709; Fitzpatrick v. United States, 178 U.S. 304, 20 S.Ct. 944, 44 L.Ed. 1078; Powers v. United States, 223 U.S. 303, 32 S.Ct. 281, 56 L.Ed. 448; Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442, L. R. A. 1917F, 502, Ann. Cas. 1917B, 1168; Gordon v. United States, 254 F. 53, 165 C. C. A. 463; Austin v. United States (C. C. A.) 4 F. (2d) 774. When he takes the stand in his own behalf, he does so as any other witness, and within the limits of the appropriate rules, he may be cross-examined as to the facts in issue. Reagan v. United States, supra, 305 (15 S.Ct. 610); Fitzpatrick v. United States, supra, Tucker v. United States (C. C. A.) 5 F. (2d) 818. He may be examined for the purpose of impeaching his credibility. Reagan v. United States, supra, 305 (15 S.Ct. 610); Fitzpatrick v. United States, supra, 316 (20 S.Ct. 944). His failure to deny or explain evidence of incriminating circumstances of which he may have knowledge may be the basis of adverse inference, and the jury may be so instructed. Caminetti v. United States, supra. His waiver is not partial; having once cast aside the cloak of immunity, he may not resume it at will, whenever cross-examination may be inconvenient or embarrassing."

We do not know from the bill to what extent the defendants, while testifying in their own behalf, went in recounting the history of their lives and, like any other witnesses, they are subject to cross-examination on those questions.

In the nineteenth assignment, it is indicated that Johnson Smith, who was said to be a former warden of the State Penitentiary, was called as a witness for the defendants. His examination, as quoted in the bill of exceptions, reads:

"Q. Was Mr. Kelley, the defendant here, during your incumbency, confined in the bull pen? A. I believe he was.

"Q. Did you have occasion to notice any effect that this confinement may have had upon his mentality, before and after? A. Upon Kelley?

"Q. Yes. A. No, I think he was in the bull pen only a few days when I was there--a very short period.

"Q. Was that long enough in order for you to determine whether there was any change in him? A. No; not in Kelley's case."

Counsel for defense...