State v. Moran

• Decision Date: 14 June 1887
• Citation: 14 P. 419,15 Or. 262
• Parties: STATE v. MORAN.
• Court: Oregon Supreme Court

14 P. 419

15 Or. 262

STATE v. MORAN.

Supreme Court of Oregon

June 14, 1887

Appeal from county court, Multnomah county.

Chamberlain & Morrow, for appellant.

Henry E. McGinn, Dist.Atty., for respondent.

STRAHAN J.

On the eighteenth day of November, 1886, the appellant was indicted for the crime of murder in the first degree by the grand jury of Multnomah county. The charging part of the indictment is as follows: "The said Dan Moran, on the seventh day of July, A.D. 1886, in the county of Multnomah and state of Oregon, purposely and of deliberate and premeditated malice killed Frederick Kaluscha by then and there administering to him, the said Frederick Kaluscha, poison, namely, morphine contrary to the statute in such cases made and provided, and against the peace and dignity of the state of Oregon." Thereafter a trial of said cause was had before a jury, which resulted in a verdict of guilty as charged in the indictment. Afterwards, on motion of the defendant, the court set aside the verdict, and granted him a new trial. On the second trial the jury found the defendant guilty of manslaughter, upon which verdict the court sentenced him to imprisonment in the penitentiary of the state of Oregon for 15 years, from which judgment he has appealed to this court. Upon the trial here counsel for the appellant, as well as the state, have displayed great research and ability, and the various questions presented were exhaustively argued, and it now only remains for the court to state the conclusions reached, and to indicate the reason therefor.

1. On the trial in the court below, counsel for appellant moved to strike out the evidence of Coroner De Linn and Dr. Bevan. The evidence which was included in this motion was, in substance this: Coroner De Linn testified that he took the body of deceased to the morgue, where an inquest was held; found his name was Frederick Kaluscha, and that he was a carpenter on the ship Canidate. On his cross-examination he testified that he knew the name of the deceased by hearing witnesses testify to it, and that he had no personal acquaintance with the deceased. Dr. Bevan's evidence was to the same effect. The evidence in neither case was objected to when offered; but, in addition to this, the counsel's position is there was no particular controversy upon the trial as to the identity of the deceased. O'Brien and other witnesses testified to his identity very fully. The object in calling the coroner and Dr. Bevan was to prove the fact of death, and not the identity of the deceased. The court did not err in refusing to strike out this evidence.

2. On the trial in the court below the state introduced the declarations of Moran, given under oath before the magistrate in the case of State v. James Kelly, who was charged with the crime of murder in the killing of Kaluscha; also the declarations of Moran given under oath before the grand jury of Multnomah county in the same case. Counsel for the defense claim that the declarations and admissions under oath before the committing magistrate ought not to have been admitted, for the reason they were given and made upon an understanding with the district attorney and the police officers that if he would testify fully as to all he knew in relation to the poisoning of Kaluscha, that he (Moran) should not be prosecuted for any complicity therein. They also object to the statements made by Moran before the grand jury in the same matter for the same reasons, and upon the further ground that it was incompetent for the trial court to allow the proceedings before the grand jury to be made public for this purpose.

3. It must be taken as settled in this state that section 169 of the Criminal Code is only declaratory of the common-law rule in relation to confessions. State v. Wintzingerode, 9 Or. 153. Upon the trial of a criminal case, therefore, whenever a confession is offered in evidence against the accused, it becomes necessary for the court to ascertain and determine whether or not the confession has been obtained by the influence of hope or fear applied by a third person to the prisoner's mind. This inquiry is preliminary, and is addressed to the judge who admits the proof--the confession--to the jury, or rejects it, as he may or may not find it to have been drawn from the prisoner by the application of those motives. 1 Greenl. Ev. §§ 219.220; People v. Soto, 49 Cal. 67; Reed v. Clark, 47 Cal. 195; State v. Squires, 48 N.H. 364; Redd v. State, 69 Ala. 255. In Redd v. State, supra, it is said: "It is a well-established maxim of the law that the admissibility of evidence is always a question to be determined by the court, and its weight or credibility is for the determination of the jury. It is for the court, therefore, to say whether the confessions of a prisoner are voluntary or involuntary; and this question, being judicially settled, cannot be reviewed by the jury. Hence a charge is erroneous which submits to them the decision of this legal question, and should, for that reason, be refused." So in State v. Squires, supra, the same principle is thus stated: "Whether the confession of the prisoner was voluntary or not is purely a question of fact; as much so as the question whether a witness offered to testify was interested or not, or whether a witness was qualified to testify as an expert, or whether the loss of a paper has been shown so as to allow the introduction of secondary evidence of its contents. In this and like cases the judge who tried the cause must decide, although in some instances he may submit the question of fact to the jury. In either case, whether the decision be by the judge alone, or it be also passed upon by the jury, no exception lies so far as the question is one of fact." When this evidence was offered in the court below, it was objected to by counsel for the appellant because the statements and declarations of the defendant which were offered in evidence, and which he had sworn were true on the previous occasions referred to, had not been freely and voluntarily made so as to entitle them to be admitted. Evidence was heard by the court for and against this objection, and the court then decided to admit the evidence offered. In other words, the court decided that these sworn statements of the prisoner were freely and voluntarily made within the true meaning of that rule of law, and admitted them. The bill of exceptions does not purport to set out all the evidence submitted to the court on that issue. In such case it is not perceived how this court can review the decision of the trial court on that question. State v. Tom, 8 Or. 177. But we are not disposed to rest the decision of this cause on that question alone.

Assuming now that all of the matters objected to are confessions, or in the nature of confessions, it is believed that they fall within what might be regarded as an exception to that rule or, if not an exception, a modification thereof in its application to the particular facts disclosed by this record. In order that there may be no misunderstanding as to the precise facts in this case so far as they are disclosed by the record, a brief reference to the testimony is proper. Pending the decision of the court below as to the admissibility of the evidence, the district attorney was sworn, and testified in substance: "It is not true, as testified to by the defendant, Moran, that I at any time, either directly or indirectly, agreed to give him anything for testifying in the case against James Kelly. There never was at any time, in my presence, any offer made to the defendant, Dan Moran, but this one: That, if he should become a witness in the case against James Kelley, he should not be prosecuted for any connection he had with that crime. The statement that I said that I would give him a ticket to go east is entirely false. I never made him any offer except that he should not be prosecuted for any connection which he had with the killing of Frederick Kaluscha, and had he kept his word I certainly would not be here prosecuting him." Policeman Berry, who it is claimed held out some inducements to Moran to testify against Kelley and make a full disclosure, testified, on the same occasion, before the court below: "I never promised him [Moran] any money, or made any threats against him to do him bodily harm, or made him any offer except that he should have his liberty if he testified against Kelley. I was present in the chief of police's room when the offer was made to Moran to be a witness for the state, and he accepted that offer. There was no inducement, to my knowledge, held out to Dan Moran at the chief of police's office in this city when he made the statement I stated he made a little while ago on the stand; and I heard every word that was uttered in the room during this interview when the matter was under discussion. No promise of any kind was made except that of his personal liberty; and that was made at his own solicitation and request." R.M. Demant, police judge of the city of Portland, on the same occasion, and to the same point, testified in substance as follows: "I am police judge. I was such in the month of July last. I know Dan Moran. I didn't know James Kelley until the time of his incarceration. I don't know that I know all the circumstances under which Dan Moran became a witness against James Kelley down in the police court. I know a great many circumstances connected with it,--perhaps as many as anybody other than yourself. The time at which he made the agreement to become a witness against James Kelley was in the presence of yourself, [the district attorney;] and, if my recollection serves me right, the chief of police, Mr. Berry, one other gentleman, and myself were in the office of the chief of police in the city...