State v. Mackey

• Decision Date: 06 April 1885
• Citation: 12 Or. 154,6 P. 648
• Parties: STATE v. MACKEY and another.
• Court: Oregon Supreme Court

6 P. 648

12 Or. 154

STATE v. MACKEY and another.

Supreme Court of Oregon

April 6, 1885

Appeal from Josephine county.

P.P Prim and J.F. Watson, for appellants.

Dist. Atty. Kent and Mr. W.H. Holmes, for respondent.

LORD J.

The defendants, father and son, were indicted jointly and tried jointly for the crime of murder, found guilty, and sentenced to be hanged. The bill of exceptions purports to contain, in substance, the whole testimony, and the first point suggested is the insufficiency of the evidence to justify the verdict. This alleged error applies to the denial of the defendants' motion for a new trial. There are cases in which it has been held that a motion for a new trial is addressed to the sound discretion of the court below, and that the overruling of such a motion will not be reviewed unless there is a plain abuse of such discretion. This is conceded, but it is earnestly and strenuously insisted that the evidence is so manifestly insufficient, and particularly as against the son, to sustain the verdict, that it falls within the rule laid down in those cases which would authorize the court to review and set aside the verdict. But a different doctrine seems to have been held by this court in Hallock v. City of Portland, 8 Or. 30. PRIM, J., in delivering the opinion of the court said:

"As the motion for a new trial was based wholly upon the insufficiency of the evidence to justify the finding of fact the granting of the motion was a matter resting wholly in the discretion of the court below, and cannot be reviewed on appeal." State v. Wilson, 6 Or. 428; State v. Fitzhugh, 2 Or. 227; Hil. N.T. 7; Pomeroy's Lessee v. Bank of Indiana, 1 Wall. 597; Pennsylvania M. Co. v. Brady, 14 Mich. 260; Boykin v. Perry 4 Jones, Law, (N.C.) 325.

It is true, the evidence against the defendants is wholly circumstantial; and there can be no doubt but what that portion of it which relates to the son is extremely slight upon which to found a verdict. But the authorities cited indicate that such matter is not reviewable on appeal.

It is next assigned as error that the court erred in not allowing John Mack to answer the impeaching question asked him by the defense, if he had not said to one Miner--the time, place and parties present being stated--that there was not evidence enough to hold the G_____ d_____ Mackeys, but that he intended to send them to jail and to hunt the evidence afterwards. The object of this evidence was to impair the force of the witness' testimony as showing that he entertained hostile or embittered feelings against the defendants. He was the magistrate who had bound the parties over, and a witness for the prosecution. The ends of justice are best attained by allowing a free and ample scope for scrutinizing evidence and estimating its real value. The question put contained all proper information as to time, place, and persons present, and the precise matter which was to be used against him; so, in the event he should admit having made such declaration, an opportunity would be afforded him to rebut or explain it. There is no distinction, so far as the rule is concerned, between admitting declarations of hostility of a witness for the purpose of affecting the value of his testimony, and admitting contradictory statements for the same purpose, as in either case an opportunity should be given the witness to explain what he said. The witness should have been allowed to answer the question; to say whether he did or did not make the alleged statement; or, if he did, to make his explanation of it. By so doing the jury would have been put in a position of estimating the real value of his testimony; of determining whether he was an impartial witness, testifying without prejudice or passion, or in fact a hostile witness whose prejudices and passion had colored his testimony, and requiring it to be closely scrutinized and weighed.

It is next objected that the court erred in sustaining the objection of the state to the question asked by the defense of A.J. Henderson, whether or not Martin Mackey did not decline, on account of his physical condition on two days, to go out and show the claim. It appears at the June election previous to the time indicated in the question, that Mackey had been severely beaten and bruised by the deceased, and that he was some time in recovering from the effects of it, and regaining his accustomed strength and health; that before he had entirely recovered some parties desired to purchase his mining claim and went to his cabin to see him, and it was proposed to show by the question that he was then in such a debilitated physical condition as caused him to decline to go out and show the mine, which was some distance off. The ultimate object of the evidence was to show that his physical weakness was such at the time of the murder that, considering the distance from his cabin, he would have had to travel over a rough and brushy trail across the mountains to the cabin where the deceased was killed; that it could not reasonably be attributed to him; in other words, if believed, it would have been a circumstance which would have gone far to prove that he did not commit the crime. It seems that he wanted to sell his mine, and if he was unable or declined to accompany the parties for the...