State v. Long

• Decision Date: 21 May 1952
• Citation: 195 Or. 81,244 P.2d 1033
• Parties: STATE v. LONG.
• Court: Oregon Supreme Court

Page 1033

244 P.2d 1033

195 Or. 81

STATE v. LONG.

Supreme Court of Oregon, En Banc.

Argued and Submitted Jan. 23, 1952.

Decided May 21, 1952.

Ashley Greene, of Portland, and Dale Jacobs, of Oregon City, argued the cause and filed a brief for appellant.

Leonard I. Lindas, Dist. Atty. and Winston L. Bradshaw, Deputy Dist. Atty., both of Oregon City, argued the cause for respondent. On the brief was George Neuner, Atty. Gen.

BRAND, Chief Justice.

The defendant Wayne LeRoy Long was tried upon the charge of murder in the first degree. He was found 'guilty as charged in the indictment', without recommendation, and was sentenced to death. The indictment reads in part as follows:

'The said Wayne Le Roy Long on or about the 15th day of June, A.D., 1950, in the said County of Clackamas and State of Oregon, then and there being, did then and there unlawfully and feloniously, purposely and of deliberate and premeditated malice, kill one, Walter Lane Rucker, by shooting the said Walter Lane Rucker with a gun * * *.'

The defendant now appeals and presents nine assignments of error. Before reviewing the evidence received and the rulings made at the trial, we will consider two assignments of error which relate to preliminary motions. On the first day of the trial, but before the examination of the prospective jurors, the defendant moved for a continuance 'on the grounds that the defendant is not in the custody of the State of Oregon.' The defendant offered to show 'by the testimony of the District Attorney, the Sheriff of this county, the United States District Attorney, and the United States Marshal that this man is in the custody of the Federal Government' and that he was being held awaiting trial upon a federal charge. It was argued that producing the defendant in the state court under these circumstances was a violation of his rights under the federal and state constitutions. However, counsel for the defendant also stated that the defendant had been brought 'on a letter written by the District Attorney to the United States District Attorney requesting that he be produced', and he conceded further 'that the prisoner is here with the consent of the United States District Attorney for this district'. He disavowed any 'contention that the prisoner has been deprived of an opportunity to prepare his defense by virtue of the fact that he has been in the custody of the United States Government before production here'. The District Attorney stated to the court that the prisoner had been surrendered and was in the physical custody of the state. He said, 'They have voluntarily brought in the prisoner to us for trial and we have the sole custody of him.' No further reference was made to any offer to take testimony and no witness was called to testify. The motion for a continuance was denied. Upon this issue the following cases were cited by the defendant: Chapman v. Scott, D.C., 10 F.2d 156, affirmed, 2 Cir., 10 F.2d 690, and Ponzi v. Fessenden, 258 U.S. 254, 42 S.Ct. 309, 66 L.Ed. 607. In both cases a defendant who was serving his sentence on conviction in a federal court was surrendered by the federal authorities to a state court for trial upon a different charge. From the opinion in the District Court we quote the following:

'* * * Courts of criminal jurisdiction need not inquire how the prisoner at the bar came within the reach of their mandates; for jurisdictional purposes it is sufficient that he is there. * * *

* * *

* * *

'But the relator is not the federal government, nor is he authorized to move on its behalf, nor will the court be keen to discover a technique for the subversion of justice; it will not interpose its arm to circumvent a lawful doom. It is a fundamental rule that our system of state and federal jurisdiction requires a spirit of reciprocal comity between courts to promote due and orderly procedure, and the facts disclosed by this record and clearly established show conclusively that the spirit of reciprocal comity has been fully met in this instance, and that due and orderly procedure has resulted. We must not overlook the fact that to all the proceedings had in the state court, resulting in the relator's conviction of murder in the first degree, the United States, through its duly authorized agents and representatives, acquiesced in those proceedings, and temporarily surrendered its possession of the relator to the state authorities, and, having done this, the relator can have no legal complaint, as the situation is squarely within the rule stated by Chief Justice Taft in Ponzi v. Fessenden, 258 U.S. 254, 42 S.Ct. 309, 66 L.Ed. 607, 22 A.L.R. 879. * * * ' Chapman v. Scott, supra, 10 F.2d 156, 159, 161.

The judgment was affirmed in the Circuit Court of Appeals. 2d Cir.1926. That court said:

'* * * How he came within the jurisdiction of the Connecticut court, in the absence of objection by the United States, is not important or material; it is sufficient that he is there. He was lawfully within the jurisdiction of the Connecticut court, and it had the power, under the custody granted, to try and punish him upon conviction.' Chapman v. Scott, supra, 10 F.2d 690, 691.

In Ponzi v. Fossenden, supra, 258 U.S. 254, 42 S.Ct. 309, 310, 66 L.Ed. 607, 611, the Supreme Court said:

'One accused of crime has a right to a full and fair trial according to the law of the government whose sovereignty he is alleged to have offended, but he has no more than that. He should not be permitted to use the machinery of one sovereignty to obstruct his trial in the courts of the other, unless the necessary operation of such machinery prevents his having a fair trial. He may not complain if one sovereignty waives its strict right to exclusive custody of him for vindication of its laws in order that the other may also subject him to conviction of crime against it. * * *'

See also United States ex rel. Demarois v. Farrell, 8 Cir., 87 F.2d 957.

The defendant claims that the cited cases are distinguishable because, in both instances, the defendant had been tried and convicted by the federal court before being surrendered to the state court for trial, whereas, in the case at bar the defendant was being held for trial by the federal authorites. It is argued that the defendant had a right to a speedy trial on the federal charge. It may be answered that he also had the same right on the state charge of murder in the first degree. The principles announced in the Chapman and Ponzi cases are equally controlling here. Smith v. Swope, 9 Cir., 91 F.2d 260; State v. Simmons, 39 Kan. 262, 18 P. 177; and In re Robinson, 29 Neb. 135, 45 N.W. 267, 8 L.R.A. 398, are cited but are not in point. There is no merit in the first assignment of error.

The second assignment is as follows:

'The court erred in denying motion to dismiss the venire and continue the cause on the ground that defendant had been shackled in the presence of the entire panel.'

The question was presented before the examination of the jurors on their voir dire, and in the following manner. We quote from the statement of defense counsel made at that time:

'* * * We understand that this man is regarded by the authorities as a dangerous man, and he is continually surrounded by guards. Any show that that is being done in the presence of the jury is obviously prejudicial. When we attempted to leave from the court room, a number of men, the Deputy Sheriff and the Deputy Marshal, physically handcuffed him in the presence of all the members of the jury. It has been held by the State of Oregon that bringing a man in with shackles is in violation of his Constitutional rights. We would like to take exception to that in this particular controvery [controversy] to move that this panel be dismissed and that another panel will be called.'

No evidence was offered or received concerning the alleged circumstances. The court then made suitable arrangements to insure that the prisoner should not be handcuffed during the proceedings in court. It was also provided that only one guard should be in uniform and that all others should be in plain clothes. It was further provided by the court that whenever it should be necessary that the defendant be brought into chambers, the guards were to wait until the jury had retired, after which, handcuffs were to be placed upon the defendant. Our subsequent review of the evidence will disclose reasonable grounds for the precautions which were taken. No testimony was offered or received concerning the alleged appearance of the defendant in handcuffs before the venire or at any other time. It does not even appear whether the condition of the defendant was apparent or was observed by any of the prospective jurors. Thereafter the jurors were examined as to their qualifications by the prosecution and defense. At that time the defense had ample opportunity to inquire and to excuse any disqualified juror. The examination of the jurors has not been reported. The record fails to show any objection to any ruling as to the qualification of any juror and the trial jury was ultimately accepted and sworn without objection.

In an excess of caution, this being a capital case, we will examine the authorities cited by the defense upon this assignment of error.

In State v. Smith, 1883, 11 Or. 205, 8 P. 343, a conviction was reversed because of insufficiency of the indictment and also because the defendant was kept with irons on his feet during the trial. In fact, he was 'so heavily ironed' that it would have required a blacksmith to remove them. Motion was made to have the irons removed, which the court denied. The ruling in that case bears no resemblance to the careful ruling of the court in the case at bar when the matter was first called to his attention before the commencement of the trial.

In Eaddy v. People, 115 Colo, 488, 174 P.2d 717, 718, the defendant, on trial for murder, was compelled to appear at his trial in striped coveralls with the words 'County...