State v. Lane

• Decision Date: 27 March 1906
• Citation: 47 Or. 526,84 P. 804
• Parties: STATE v. LANE.
• Court: Oregon Supreme Court

84 P. 804

47 Or. 526

STATE v. LANE.

Supreme Court of Oregon

March 27, 1906

Appeal from Circuit Court, Lake County; Henry L. Benson, Judge.

B.F Lane was convicted of assault with intent to kill, and he appeals. Affirmed.

J.M. Batchelder, for appellant.

A.M Crawford, Atty. Gen., for the State.

MOORE, J.

The defendant, B.F. Lane, was charged, by an information, with the crime of assault with intent to kill, alleged to have been committed in Lake county, January 22, 1905, by shooting and wounding one Birt McKune, and, having been tried therefor, he was convicted of the crime of assault with a deadly weapon and appeals from the judgment which followed.

The bill of exceptions shows that Ambrose Reeder, having been called as a witness by the state, testified that on January 22, 1905, he was employed by the defendant as a sheep herder that prior to the trial he had told several persons that he witnessed the shooting and saw McKune fire at Lane before the latter shot at him. Reeder admitted that he did not see the shooting and that his prior statements in relation thereto were induced by fear of the defendant, and, in referring to threats made by Lane to him, the witness testified as follows: "A. He said he would have old Mack to prosecute me if I didn't swear to what he wanted me to. Q. Who was the old Mack referred to? A. Fellow that was running a gambling house in Silver Lake. Q. What is his name? A McCarty. *** Q. Do you recollect whether or not anything was said about McCarty offering money for information about the whiskey stealing? A. Yes; he did. Q. What was it? A. He said McCarty offered him two big twenties, or some more, if he would tell who the boys were. Q. What was that whiskey stealing incident that he referred to? A. I don't understand it. Q. Tell the jury what the matter was that Lane referred to when he spoke about the offer of McCarty to him to give information about the boys stealing whiskey, what connection had you with that? A. I didn't have any connection to it. I came along shortly afterwards. Q. Came along where do you mean? A. Where the boys were, that had the whiskey. Q. What whiskey? A. Old Mack's saloon whiskey. Q. Go on and explain to the jury what it was, and when it occurred? A. I don't remember when it occurred. Q. About how long prior to this shooting did it occur? A. That was in the summer before the shooting; last summer. Q. Go ahead and tell the jury now how it was--that whiskey stealing proposition was--and how you were connected with it? A. I was working in the stable and come along shortly after they stole it. I was into it, and helped drink part of it." While the defendant's counsel was arguing the case to the jury the court, in response to such appeal, referring to Reeder's testimony, observed: "The witness said he was 'in it,' but he meant clearly that he was not in the stealing, but was with them afterwards and helped them drink it." The defendant's counsel excepted to such expression, and contends that an error was thereby committed.

The question thus presented is whether or not the court's remark to defendant's counsel, respecting the testimony given by a witness, invaded the province of the jury. Our statute, in prescribing the kind of instructions to be given, contains the following declaration, to wit "In charging the jury, the court shall state to them all matters of law which it thinks necessary for their information in giving their verdict, but it shall not present the facts of the case, but shall inform the jury that they are the exclusive judges of all questions of fact." B. & C. Comp. § 139. It will not do to say that because the language complained of was addressed to defendant's counsel, though in the presence of the jury, that the expression was not used in charging them and for that reason it was harmless. Any person who has carefully observed the attention which jurors give to what they consider to be the court's...