State v. Moore

• Decision Date: 19 April 1897
• Parties: STATE v. MOORE.
• Court: Oregon Supreme Court

48 P. 468

32 Or. 65

STATE v. MOORE.

Supreme Court of Oregon

April 19, 1897

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

C.F Moore was convicted of larceny, and appeals. Affirmed.

W.T. Hume, for appellant.

C.M Idleman, Atty.Gen., and D.J. Malarkey, Dep.Dist.Atty., for the State.

MOORE C.J.

The defendant C.F. Moore was jointly indicted with George Betz and Robert Duvalle for the larceny of four gold coins, each of the value of $20, the property of the Johnson-Oliphant Company, a corporation. Upon a separate trial, Moore was convicted thereof, and, being sentenced to imprisonment in the penitentiary for the term of three years, he appeals assigning as error the alleged misconduct of the prosecuting attorney, the admission of testimony objected to, and the giving and refusal of certain instructions.

1. Considering these assignments in the order presented, it appears that the prosecuting attorney, in his opening statement to the jury, after detailing the relation which he claimed the evidence would show existed between the co-defendants, said: "We shall show you by the records of this court that the defendant George Betz was convicted in this court upon this indictment." The court, upon objection to this language, withdrew it from the jury, and also said: "I will state to you, gentlemen, that as to whether Betz has been convicted or acquitted has nothing to do with this case; and you will disregard any statement with regard to that case, and under no consideration consider it during your deliberations upon this case, when it is finally submitted to you." Whereupon defendant's counsel excepted to the misconduct of the district attorney, and now contend that the remarks complained of so prejudiced their client as to render the verdict and judgment erroneous. The defendant Moore, although jointly indicted for the commission of a crime several in its nature, could not be found guilty thereof upon proof of the confession or conviction of his co-defendants. In State v. Bowker, 26 Or. 309, 38 P. 124, Mr. Chief Justice Bean, in assigning a reason for this rule, says: "Under any other rule the guilt of a defendant jointly indicted with another, if he should happen to be tried subsequent to his co-defendant, might depend upon the result of a trial over which he had not control, to which he was not a party, and in which he had no right to appear or make a defense." The defendant's guilt was not inferable from the proof of Betz's conviction. Evidence of the latter fact would therefore have been inadmissible, if offered; and it would have been misconduct on the part of the prosecuting attorney to base an argument upon such fact, as if in evidence. Tenny v. Mulvaney, 8 Or. 513; State v. Hatcher, 29 Or. 309, 44 P. 584. An opening statement by him to the jury of a fact, the evidence of which is not admissible, must tend in some degree to prejudice the rights of the adverse party; for every attorney, of any experience, who has given the subject a moment's thought, realizes how susceptible the jurors' minds are to first impressions, and how difficult it is to overcome or efface the imprint thereby made. This is so because the minds of the persons called to try the case are not then burdened with the remembrance of conflicting statements of fact thereafter to be detailed in the trial of the cause, and, not being skilled in such matters, undue prominence is apt to be given by them to the statements first made, which, if improper, tend to prejudice the adverse party. This being so, if in the opening statement the attorney conducting the trial of the cause allude to facts not admissible in evidence, the effect must be similar to, if not more injurious than, that produced by an argument unsupported by evidence. It must be admitted that the remarks complained of were improper, but the court having promptly withdrawn them from the consideration of the jury, and thus performed its duty, the question is presented whether the error was thus rendered innocuous. In State v. Brown, 28 Or. 147, 41 P. 1042, it was held that, the trial court having promptly set its mark of disapproval upon the manifestation of applause exhibited by the audience at the remarks of the prosecuting attorney, the failure to instruct the jury in relation to the matter was not error, in the absence of a request for such instruction. In State v. Hawkins, 18 Or. 476, 23 P. 475, Strahan, J., upon this subject, says: "If counsel for the state transcended the proper bounds of discussion, it was the province of defendant's counsel to take an objection at the very time of the utterance of the objectionable words, and to take the ruling of the court at the time upon their propriety. Suppose that objections had been promptly made to the observations of counsel by the state, and he had immediately desisted; there would have been no available error. Worley v. Moore, 97 Ind. 15. Or if objection had been made, and the court had ruled that counsel was not in order, the defendant would have had no cause of exception." Under the rule announced in these cases, the court, by promptly withdrawing the remarks of the prosecuting attorney, thereby called attention to their impropriety, and neutralized as far as it could any injury that might result from the misconduct of that officer, which was prompted, no doubt, by the excitement of the moment. The prosecuting attorney is a sworn officer of the court, charged with the duty of enforcing penal statutes and thereby suppressing crime; but should he, in his zeal to secure a conviction or to establish a reputation as a successful trial lawyer, persist in repeating, in the presence of the jury, language which the court considered improper, its renewed withdrawal ought not to be held to correct the intentional misconduct.

2. It is next contended that the court erred in admitting the testimony of F.V. Armstrong, Sam Simmons, and Eugene Ferguson concerning the acts of the co-defendants Betz and Duvalle. This action was tried by the state upon the theory that the defendants had entered into an agreement to steal the money in question, in pursuance of which Duvalle kept watch on the street; Moore entered the store of the Johnson-Oliphant Company, and, obstructing the view of its occupant, engrossed her attention while Betz went in and purloined the money. And, in making the point contended for, counsel assume that, upon the theory adopted, there was not sufficient evidence of the unlawful agreement to let in any testimony of the acts of the co-defendants. The statute provides that, "after proof of a conspiracy, the declaration or act of a conspirator against his co-conspirator, and relating to the conspiracy," may be given in evidence. 1 Hill's Ann.Laws Or. § 706, subd. 6. This enactment is declaratory of and emphasizes a principle of the common law which permits the admission of hearsay testimony on certain conditions, among which are the acts and declarations of one of a company of conspirators; but before this can be done a foundation must be laid, by proof sufficient, in the opinion of the judge, to establish prima facie the fact of conspiracy between the parties, or proper to be laid before the jury as tending to establish such fact. Whart.Cr.Ev. § 698; 1 Greenl.Ev. § 111; 4 Am. & Eng.Enc.Law, 631. Mr. Wharton, in his work on Criminal Law (volume 2 [9th Ed.] § 1398), says: "The actual fact of conspiring may be inferred, as has been said, from circumstances, and the concurring conduct of the defendants need not be directly proved. Any joint action on a material point, or collection of independent but co-operative acts, by persons closely associated with each other, is held to be sufficient to enable the jury to infer concurrence of sentiment; and one competent witness will suffice to prove the co-operation of any individual conspirator. If, therefore, it appear that two or more persons, acting in concert, are apparently pursuing the same object, often by the same means, one performing part of an act, and the other completing it, for the attainment of the object, the jury may draw the conclusion that there is a conspiracy." In State v. Winner, 17 Kan. 298, the defendant, having been convicted of murder in the first degree upon circumstantial evidence tending to prove a conspiracy, appealed, and Valentine, J., in rendering the decision of the court affirming the judgment, says: "Ordinarily, when the acts and declarations of one co-conspirator are offered in evidence as against another co-conspirator, the conspiracy itself should first be established prima facie, and to the satisfaction of the court trying the cause. But this cannot always be required. It cannot well be required where the proof of the conspiracy depends upon a vast amount of circumstantial evidence,--a vast number of isolated and independent facts. And in any case where such acts and declarations are introduced in evidence, and the whole of the evidence introduced on the trial, taken together, shows that such a conspiracy actually exists, it will be considered immaterial whether the conspiracy was established before or after the introduction of such acts and declarations." But if we assume, without deciding, that the provision of our statute is mandatory, and prohibits the admission of any evidence tending to show the declarations or acts of a conspirator in relation to the unlawful combination until after proof of a conspiracy has been introduced, it will be observed that it does not prescribe the degree of proof demanded; hence it necessarily follows that the measure of evidence required in such cases must of necessity be a matter largely within the discretion of the trial court, and upon appeal the question should be, was there such evidence introduced at the...