State v. Morris

• Court: Supreme Court of Oregon
• Writing for the Court: [83 Or. 434] BEAN, J. (after stating the facts as above).
• Citation: 83 Or. 429,163 P. 567
• Decision Date: 27 February 1917
• Parties: STATE v. MORRIS.

163 P. 567

83 Or. 429

STATE
v.
MORRIS.

Supreme Court of Oregon

February 27, 1917

In Banc.

Appeal from Circuit Court, Lake County; Bernard Daly, Judge.

Tommy Morris, jointly indicted with Martin Anchoberry, was separately tried, and from conviction of murder he appeals. Affirmed.

Tommy Morris and Martin Anchoberry were jointly indicted for the crime of murder committed while engaged in the commission of larceny in a dwelling house. Morris was separately tried and convicted, and he appeals. The indictment omitting the formal parts reads as follows:

"The said Martin Anchoberry and Tommy Morris on the 9th day of January, A. D. 1915, in said county of Lake and state of Oregon, then and there being and acting together, were then and there unlawfully and feloniously engaged in the commission of the following felony, to wit: The crime of larceny in a dwelling house, by then and there unlawfully and feloniously taking, stealing, and carrying away in a dwelling house currency, gold coin, and silver coin, lawful money of the United States, of the value of $105, the money and property of Bertha Bronson; and the said Martin Anchoberry and Tommy Morris, while then and there engaged in the commission of such larceny in a dwelling house, did then and there unlawfully and feloniously assault the said Bertha Bronson by then and there choking and strangling her, whereof she, the said Bertha Bronson, then and there died."

Burnett and Benson, JJ., dissenting.

Chas. H. Combs and W. Lair Thompson, both of Lakeview (Batchelder & Combs, of Lakeview, on the brief), for appellant. Geo. M. Brown, Atty. Gen. (O. C. Gibbs, Dist. Atty., of Lakeview, on the brief), for the State.

[83 Or. 434] BEAN, J. (after stating the facts as above).

The defendant Morris demurred to the indictment upon the ground that it did not comply with the requirements of chapter 7, tit. 18, L. O. L., and assigns the overruling of the demurrer as error. Counsel for defendant argue that the indictment does not directly aver the larceny, but merely alleges a conclusion. Section 1894, L. O. L., provides that if any person shall, purposely and maliciously, but without deliberation and premeditation, or in the commission or attempt to commit any felony other than rape, arson, robbery, or burglary, kill another, such person shall be deemed guilty of murder in the second degree. The form of an indictment in such a case is prescribed by No. 4, p. 1010, L. O. L., in connection with No. 12, p. 1012. The indictment complies substantially with the forms prescribed by the statute. State v. Hosmer, 72 Or. 57, 142 P. 581. The acts constituting the crime are set forth clearly and distinctly, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended thereby, and is sufficient. Sections 1437, 1438, 1439, L. O. L.; State v. Brown, 7 Or. 199; State v. Dilley, 15 Or. 73, 13 P. 648; State v. Childers, 32 Or. 122, 49 P. 801; State v. McAllister, 67 Or. 480, 136 P. 354. The criticism is that the indictment does not directly allege that the defendants "took, stole and carried away," etc. The pleading plainly avers that the killing was done while the defendants were feloniously "taking, stealing and carrying away in a dwelling house" certain described property. State v. Brown, supra, is decisive upon this point.

After each of the regular panel of jurors in attendance, except Venireman Goff, had been examined [83 Or. 435] and excused, and before any juror had been accepted, and after Mr. Goff had stated upon his voir dire that he was a juror in the previous trial of Martin Anchoberry, the following question was addressed to him by the district attorney: "Who was the juror who wanted to convict both defendants on the Anchoberry case?" To this remark exception was taken by defendant's counsel. Upon objection by defendant the court reminded counsel that such conduct was entirely improper, and expressed a hope that it would not occur again. The juror was excused, and as there was no other juror in the jury box or shown to be within hearing of the remark, we cannot see how the rights of defendant were in any way prejudiced. Thereafter when any juror was called he could be examined as to whether he had heard anything about the occurrence.

After a special venire had been summoned upon the examination of Venireman Smith as to his qualifications as a juror, he stated, in effect, that from what he had heard he had an impression that a crime had been committed; that the opinion did not go to the guilt or innocence of the defendant Morris. To the question, "And you think you have reasonable grounds for supposing that a crime has been committed?" he answered, "Yes; I think I have." Thereupon the district attorney stated, "I think any reasonable man would have that impression."

To this remark of the district attorney exception was taken, and error is assigned thereto. Upon the juror stating that he could and would, if accepted as a juror, lay aside the opinion that a crime had been committed and try the case solely upon the evidence, counsel for defendant withdrew their challenge of the juror, and he was accepted. Defendant did not request any ruling of the court upon the matter, or ask that the jury be instructed to disregard the same. [83 Or. 436] The statement of the juror, in which counsel for the state by his remark unnecessarily concurred, was not, after explanation made by the juror, considered sufficient upon which to base a challenge. The mere exception to the remark of counsel without obtaining, or attempting to obtain, a ruling thereon by the trial court is not of sufficient materiality to be considered upon appeal. State v. Lee Ping Bow, 10 Or. 27; State v. Anderson, 10 Or. 456; State v. Abrams, 11 Or. 169, 8 P. 327; State v. Drake, 11 Or. 396, 4 P. 1204; State v. Hatcher, 29 Or. 309, 44 P. 584.

We pass next to the main question in this case. Assignments of error Nos. 5 to 8 relate to the reception in evidence, over the objection and exception of defendant's counsel, of a written confession of defendant and admissions made by him on the ground that the same were involuntary. Before the admission of the confession testimony was taken to show whether or not the same was voluntary.

W. B. Snider, sheriff of the county, testified in part as follows:

"When Tommy arrived at the office in the company of Mr Caldwell, the deputy, I took him into the private office on the north side of the hall in company with Mr. Rinehart and myself, and I told him that the Frenchman, Martin Anchoberry had made a confession in which he implicated him in the murder of that woman, and [163 P. 570] I asked him if he wanted to see some of his folks or an attorney. If he wanted to he had better call for some of his folks or an attorney, and he said he didn't. I told him 'You understand if you make any statements, they will be used against you, if you talk at this time.' In fact, I urged him to talk to some of his folks before he made any statement, and he didn't wish to do it."

Snider stated that afterwards the district attorney warned the defendant; that no threat or promise was [83 Or. 437] made to Morris by any one at the time of his examination. On cross-examination the sheriff testified:

"Q. Well, you didn't say to Tommy, a boy you have known for years, and whom you say you didn't at that time believe to be guilty, 'Now, Tommy, it will be better for you to tell all you know about this matter if you know anything about it'? A. I may have said it; I don't know. I would not be positive that I did, but it don't seem to me. * * * Q. Did you say to him anything to the effect that it would be better for him to tell you if he knew anything about what happened? A. No; I don't think I told him it would be better for him because I realized that it would not, and warned him to that effect. Q. Did you say to him at that time, 'Tommy, you ought to tell all you know about this matter, and if you do tell I will do anything I can to assist you'? A. I don't know. Afterwards I did."

E. E. Rinehart, the deputy sheriff, testified to the effect that Sheriff Snider and the district attorney warned defendant that any statement he might make would be used against him; that he did not need to make any statement unless he wanted to, and that the sheriff asked him if he wanted to see his folks or wanted an attorney, and he said, "No;" that he remained in the office with the defendant during the noon hour while the sheriff and district attorney were out; that he talked to defendant quite a while, and Morris asked him some questions about his former reputation. As to the conversation regarding the homicide, Mr. Rinehart said:

"As near as I can tell in the exact words, it was just about this way: After we talked a while I told him, I said 'You heard what Willie Arzner has said and the Frenchman has made a complete statement and has implicated you,' and I said, 'The fact of the matter is [83 Or. 438] you was up there at the death of that woman the other night.' He nodded his head, and said he was. Q. You say you had talked some prior to that; what was that talk? A. He asked me some questions, if I knew anything about his past reputation, if he had ever done anything before. Q. What did you tell him? A. I said I didn't know of anything. Q. Was that the extent of the conversation that led up to this? A. Yes. * * * A. He said: 'I didn't kill her. * * * I just held her hands."'

On cross-examination Mr. Rinehart stated: "I did say this, 'You had just as well tell me."'

O. C. Gibbs, District Attorney, deposed, in substance, that:

"I told the defendant Tommy Morris that the Frenchman, Martin Anchoberry, had made a confession and had implicated him in the killing of that woman; that we wanted to question him concerning the facts; that he need not answer any

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