State v. Kelly

• Decision Date: 11 November 1895
• Citation: 28 Or. 225,42 P. 217
• Parties: STATE v. KELLY.
• Court: Oregon Supreme Court

42 P. 217

28 Or. 225

STATE v. KELLY.

Supreme Court of Oregon

November 11, 1895

Appeal from circuit court, Multnomah county; T.A. Stephens, Judge.

Joseph Kelly was convicted of murder, and appeals. Affirmed.

John C Caples and John Ditchburn, for appellant.

W.T. Hume, Dist. Atty., for the State.

BEAN C.J.

The defendant, having been convicted of the crime of murder in the second degree, brings this appeal, assigning as error the decision of the court overruling his challenge to certain jurors for actual bias, and its refusal to exclude the jury from the court room during the preliminary hearing before the court to determine the admissibility of an alleged confession offered in evidence by the prosecution. Upon the examination of the jurors challenged on their voir dire, each of them testified that he had read what purported to be the facts of the case in the newspapers that, from such reading and what he heard, he had formed and expressed some opinion upon the merits; but that it was not fixed, and would not influence his verdict if taken as a juror. Under these circumstances, there was no reversible error in overruling the challenge. This question has been so often and thoroughly examined by the court that it is unnecessary to do more at this time than refer to the opinions in the following cases: State v. Tom, 8 Or 177; Kumli v. Southern P. Co., 21 Or. 505, 28 P 637; State v. Ingram, 23 Or. 434, 31 P. 1049; State v. Brown (Or.) 41 P. 1042.

The next point made by the defendant is that the court erred in overruling his motion to exclude the jury from the court room during the preliminary hearing before the court as to the competency of a certain alleged confession which the court, after the hearing, refused to admit in evidence, because it was obtained by undue influence and improper inducements held out to the defendant by those in authority. This is a new question here, but we understand the practice in the trial courts has generally been to conduct such examination in the presence of the jury; and, in our opinion, the question as to whether it shall be so conducted or otherwise should be left to the sound discretion of such courts. The competency and admissibility of confessions, like other testimony, is for the court to determine; but, when admitted, their weight and credibility is for the jury alone, and hence it is necessary that the jury should be put in possession of all the circumstances surrounding the making of an alleged confession to enable them to intelligibly determine the weight and credibility to which it is entitled. A confession, to be admitted, must have been freely and voluntarily made. When offered in evidence, the question whether it was so made is to be decided primarily by the presiding judge, but his decision is not conclusive upon the jury as to the weight or credibility to be given to such evidence. If, upon the whole testimony, they believe it was not the free and voluntary act of the defendant, they have a right to exclude it entirely in their consideration of the case. Therefore, if the preliminary examination is not held in the presence of the jury, and the court admits the confession in evidence, the whole testimony as to the circumstances under which it was made must be gone over again before the jury; and whether this course should be pursued, or the preliminary examination had in the presence of the jury, in the first instance, may be safely intrusted to the sound discretion of the trial court. Cases may arise, it is true, in which the ends of justice might be best subserved by conducting the examination without the hearing of the jury, but the necessity for such precaution must be left to the enlightened discretion of the presiding judge to determine.

The argument that, if the preliminary hearing is had in the presence of the jury, they will ordinarily learn the nature of the confession, and be influenced thereby in arriving at a verdict, although the court may refuse to admit it in evidence, is based upon an unwarranted assumption of the ignorance and incompetency of the jury. During such an...