State v. McDaniel

• Decision Date: 01 July 1901
• Citation: 65 P. 520,39 Or. 161
• Parties: STATE v. McDANIEL.
• Court: Oregon Supreme Court

65 P. 520

39 Or. 161

STATE v. McDANIEL.

Supreme Court of Oregon

July 1, 1901

Appeal from circuit court, Multnomah county; M.C. George, Judge.

Frank E. McDaniel was convicted of manslaughter, and he appeals. Affirmed.

Henry St. Rayner, for appellant.

D.R.N Blackburn, Atty. Gen., Geo. E. Chamberlain, Dist. Atty., and Russell E. Sewall, for the State.

BEAN C.J.

On the afternoon of July 20, 1899, the body of Clara Fitch, a girl 19 years of age, was found in a secluded and unfrequented portion of what was formerly Cycle Park, in Portland, but which had not been used as such for some time. It was almost if not quite completely, covered with ferns and boughs, which had been gathered in the immediate vicinity. There were quite a number of lacerations and bruises or contusions on the face and right hand, which the physician who made the autopsy testified could be produced only by violence, and in his opinion were caused by a human hand, either that of an asssailant or of the deceased in attempting to remove the hand of another. The womb was lacerated, torn, and jagged evidently caused by the use of some mechanical appliance, and the clothing under the body was wet with urine mingled with blood. The evidence tended to show that death was caused by homicidal strangulation or suffocation. The defendant was immediately arrested, and charged with the murder, and upon his trial convicted of manslaughter. He and the deceased were about the same age, and became acquainted while attending the high school, in 1898. She soon became very much infatuated with him, but her parents forbade their associating together. He, however, continued his attentions without their knowledge, meeting her secretly and clandestinely, until finally he seduced and became criminally intimate with her. About 10 days before her death she informed him of facts which led him to believe, although mistakenly, as the autopsy subsequently showed, that she was pregnant. This information gave him great uneasiness and alarm, for fear her parents would ascertain her condition, and her father, whom he seemed to have regarded with especial dread, would kill him. A few days before her death he sought from a friend who had attended medical school, but was not a practicing physician, some means which would enable him to produce an abortion. On the evening of the 19th of July he met the deceased by appointment about 7:30 o'clock on East Burnside street, and they walked out to Cycle Park, where they remained until near 10 o'clock in the evening, when they returned in the direction of Miss Fitch's home, at the corner of Irving and Grand avenue, about a mile distant from the park. During this walk from Burnside street to Cycle Park and back they were seen by several persons, but the last time either of them was seen that night by any witness in the case, and the last time Miss Fitch was seen alive, was about 11 o'clock, at the corner of Sixth and Hoyt streets. From this point the theory of the prosecution and that of the defense diverge. The defense claims that the parties separated at that corner, and the defendant went directly to the residence of Mr. Morse, at the corner of Twelfth and Oak, and to bed with his roommate, Clay Morse, where he remained until morning. But the theory of the prosecution is that when defendant and deceased were in Cycle Park he attempted to produce an abortion by the use of some mechanical means, causing her great pain and suffering, which, in connection with her feeble and delicate condition, made her extremely nervous and excitable; that, such nervousness being still apparent when they reached Sixth and Hoyt streets, he was afraid to let her go home, because he knew her mother would scold her for being out so late, and in her then nervous condition she would probably disclose the true state of affairs, and thus his conduct become known to her parents, and his life be endangered. He therefore persuaded her to return to the park to remain until morning, suggesting that she could tell her mother that she had spent the night with a friend; but her condition becoming no better, and the fear of exposure being imminent, he concluded, as a last resort, to entice her to a secluded place, take her life, and conceal the body, thus hoping to escape detection. There was much evidence bearing more or less directly upon these two theories, but it is unnecessary to state it in detail, as it presented questions for the jury, and not the court. With this statement of the general facts and the theories upon which the case was tried, we will proceed to an examination of the specific errors assigned.

It is insisted that the court erred in overruling the challenges for cause to the jurors Keenan and Kronenberg. Keenan testified, in substance, that he read what purported to be the facts in the case in the newspapers soon after the body was found; that he had heard the matter talked about by a great many parties, and had formed and expressed an opinion, but did not have such opinion at the time of his examination; that he first heard one thing, then another, and finally came to the conclusion that he did not know anything about it; that he did not hear or read enough to form a fixed opinion, although the opinion or impression he had would require some evidence to change it; that he could not dispossess himself of the opinion he then entertained unless evidence was introduced to cause him to do so, but whatever opinion he may have previously formed would not interfere in any way with the determination of the case. Kronenberg said that he heard of the affair about the time it occurred, but he did not form or express any opinion as to the guilt or innocence of the defendant, but did form an opinion that a crime had been committed, which he still entertained, and which would take evidence to remove; that he could not say it was a fixed and definite opinion, or that it was correct; that he could disregard any opinion he had, and try the defendant fairly and impartially. Under the facts disclosed by the examination of these two jurors, there was clearly no reversible error in overruling the challenges. We have so often had occasion to examine similar questions that it is unnecessary to do more at this time than refer to previous decisions. State v. Saunders, 14 Or. 300, 12 P. 441; Kumli v. Southern P. Co., 21 Or. 505, 28 P. 637; State v. Brown, 28 Or. 147, 41 P. 1042; State v. Kelly, 28 Or. 225, 42 P. 217; State v. Morse, 35 Or. 462, 57 P. 631.

The next assignment of error is based on the ruling of the court in admitting in evidence a letter offered for the purpose of identifying the defendant and deceased as the couple seen by a Miss Rohr going out Twelfth street on the evening of July 19th. The letter was found upon the person of defendant, and taken from him at the time of his arrest. The specific objections made to its admissibility as evidence are (1) that its seizure was a violation of the constitutional guaranties against unreasonable search, and its production in court was in violation of the provision that no person shall be compelled to give evidence against himself; and (2) that it was incompetent and irrelevant. The fact that the letter was taken from the person of the defendant at the time of his arrest, by the officer having him in charge, is no valid objection to its admissibility in evidence if it is otherwise competent and pertinent to the issue. 1 Greenl.Ev. (15th Ed.) § 254a. In State v. Nordstrom, 7 Wash. 506, 35 P 382, it was sought to connect the defendant with a homicide by means of certain boot and sock tracks impressed in soft and muddy ground at the scene of the crime. The boots and socks of the defendant were taken from his person upon his arrest, and retained by the sheriff, to be used as evidence against him. Objection to their introduction was made on the ground that they were obtained by an unreasonable search of the person, and that it was, in effect, compelling the defendant to give evidence against himself. Neither of these objections was sustained by the court, however, and the evidence was held competent. In Lovelace v. State, 12 Lea, 721, a postal card found upon the person of the defendant, addressed to another party, was held competent evidence, though not proven to have been written by the defendant. And in State v. Stair, 87 Mo. 268, 56 Am.Rep. 449, it was held that a writing found in the possession of the defendant at the time of his arrest was competent evidence against him. State v. Baker, 33 W.Va. 319, 10 S.E. 639, was a prosecution for a homicide, wherein it was held competent for the state to give in evidence, over the prisoner's objections, pantaloons taken from his person by the officer when arrested, supplemented by evidence tending to show that an investigation by experts had revealed blood stains thereon. We think, therefore, it is no objection to the introduction of the letter in question that it was found upon the person of the defendant at the time of his arrest, and taken from him by the chief of police in making the search that is usually made of arrested persons. Nor do we think it was incompetent or irrelevant. Miss Rohr testified that about 10 minutes before 8 o'clock in the evening she was in the second story of her house, sitting in a window over-looking the sidewalk; that she heard laughter, and looking out saw a young man and woman passing along the street. The young lady was reading a letter consisting of two or three sheets of paper, having a deep printed and prominent heading like a letter from a business house, and as the couple were opposite the window she heard the lady say, "What a funny thing for her to write!" She watched the couple until they reached the corner of the street, when the lady handed the letter...