State v. O'Neil

• Decision Date: 14 December 1885
• Parties: STATE v. O'NEIL.
• Court: Oregon Supreme Court

9 P. 284

13 Or. 183

STATE v. O'NEIL.

Supreme Court of Oregon

December 14, 1885

WALDO C.J., dissenting.

H.K Hanna and E.B. Watson, for appellant.

T.B. Kent, Dist. Atty., and W.H. Holmes, for respondent.

LORD J.

The defendant was indicted, tried, and convicted of murder. By the bill of exceptions it appears that on the day the defendant was called upon, and did plead not guilty to the indictment, he filed an affidavit and motion for the postponment of the trial, which the court refused to grant and this is assigned as error. It is admitted that the granting or refusing of a continuance rests in the sound discretion of the court below, and that its determination ought not to be disturbed except for the best reasons. From the nature of things, the court below is placed in a much more favorable position to see the case in all its connections, and is therefore better fitted to decide the propriety of the application, than the appellate court; and unless the decision is manifestly wrong and arbitrary involving an abuse of sound discretion, this court will refuse to reverse it. People v. Gaunt, 23 Cal. 157; People v. Williams, 24 Cal. 31; People v. Dodge, 28 Cal. 448; People v. Brown, 46 Cal. 103.

The affidavit states "that C.M. Miller is a material witness; that he is now in Kansas City, state of Kansas; that his attendance cannot be procured at this term of court, but I am confident I can procure his attendance at the next term of the court." In this statement there are no facts set out from which the court can judge whether there is reasonable ground to believe that the attendance of the absent witness can be procured at a future day. It is not enough to say, "I am confident I can procure his attendance at the next term of the court;" but the facts or circumstances upon which such confidence or belief is founded must be set out, so that the court may look into and determine from them whether there is reasonable ground to believe that the attendance of the witness can be procured. "But if the affidavit," said CROCKETT, J., "had stated explicitly his belief that he could procure their personal attendance at the next term, it would still have been insufficient, unless the reasons for his belief had been set forth, to enable the court to decide whether his belief was well founded; or, if he acted on the information of others, he should have stated the nature and particulars of the information. For the same reason, if a party states, on information and belief, that he can procure the personal attendance of a witness from a distant and foreign country, he should set forth the reasons for his belief and the nature of his information, that the court may decide whether or not there is reasonable ground to believe that the witness will attend. If continuance could be procured on such affidavits as this, the delays in the administration of justice would soon become intolerable. While great liberality should be extended toward persons charged with crime, in preparing the defense, and particularly in procuring the attendance of witnesses, the rule must not be so relaxed as to defeat the ends of justice." People v. Francis, 38 Cal. 187; People v. Ah Fat, 48 Cal. 63. Where the absent witness resides in another state, remote from the place of trial, and in nowise amenable to the process of the court, the affidavit ought to set out the facts fully and explicitly, so as to satisfy the court, in furtherance of right and justice, that the delay ought to be granted.

It is next objected that the court erred in sustaining the objection made by the state, and excluding the answer of the witness John Frazer to this question: "State whether or not you saw the defendant leaving Medford for Ashland, on his way from visiting his brother, at Jump-off-Jo, about the first of October, 1884; if so, state whether he had in his possession a double-barrel shot gun or not." It appears that two days after the murder a double-barrel gun was found in a lot near the place where the murder was perpetrated, which, in some respects at least, answered to the description of a double-barrel gun which the defendant, a short time before, had procured from his brother at a place called "Jump-off- Jo," several miles distant from Ashland. The prosecution had established the fact of his procuring such a gun at his brother's, and of its being seen in his possession at different points, on his return from his brother's, coming towards Ashland. The state showed that when the defendant passed Rock Point, Gold Hill station, and Blackwell, he was carrying such a gun, and, as it would seem, then making no effort to conceal it. The object of the question asked was to show that when the defendant was leaving Medford, which was subsequent in point of time, and nearer, and in the line of his route to Ashland, he had not in his possession a double-barrel shotgun, and thus to some extent break the continuity, and repel the inference, of the facts sought to be established by the prosecution. This is the claim of the counsel for the defendant, and the inquiry is whether the question is relevant or not.

"Relevancy is that which conduces to the proof of a pertinent hypothesis. Hence it is relevant to put in evidence any circumstances which tend to make the proposition at issue more or less probable." Whart.Ev. §§ 20, 21; Whart.Crim.Ev. §§ 23, 24. In Trull v. True, 33 Me. 367, it was held that "testimony cannot be excluded as irrelevant, which would have a tendency, however remote, to establish the probability or improbability of the fact in issue." It is a fundamental rule of evidence, applicable to all trials, that the evidence must be confined to the point in issue. Its sole object is to establish or disprove the disputed facts in issue between the parties; and any evidence not adapted to that end ought not to be received. "Had the case before us," said COWAN, J., "been one of improperly admitting evidence which bore in the least on the general question of guilt or innocence, no doubt a new trial should be granted." People v. Wiley, 3 Hill, 194. In all such cases "the single question presented to the court is one of relevancy or pertinency, and not of force or value as testimony. No matter how slight the inference may be that can be drawn from a particular fact, it is competent to be considered as an element of the entire concrete of facts from which the deduction is to be made." Scott v. State, 56 Miss. 287.

If therefore, the court, in refusing to allow the question asked to be answered, committed such error as affected the rights of the accused, however slight it may have been, the conviction must be set aside and a new trial granted. The controlling and important inquiry, then, is, was the question excluded relevant? For the better understanding of this inquiry some preliminary statement is necessary. It appears from the record that there was evidence tending to prove, previous to the murder, that the defendant had maintained improper relations or intimacy with the wife of the deceased, and had made threats against his life; that after the murder a gun was found in a lot near the place where the murder was committed; that the person who had committed the deed had fled by an unfrequented way, leaving the imprint of his boots in the soft earth, which, by trial, were found to fit the boots worn by the defendant. Upon this state of facts it became important for the state to trace the gun into the hands or possession of the defendant. For this purpose the state proved that a month or more before the murder was committed, the defendant had visited his brother at a place called Jump-off-Jo, some 50 miles distant from Ashland, and while there procured from him a double-barreled shotgun, which corresponded or answered to the description of the gun found near the place of the murder; and, to further corroborate and fix that procurement and possession of the gun by the defendant, the testimony, as to the intermediate points on his return, was introduced and admitted. The state had thus established the fact of the possession of the instrument. It had traced the gun into the hands of the defendant, with the power to control it, and it became necessary for the defendant to get rid of that possession, unless he could contradict the fact of procurement, or show the gun procured was another or different gun. As nothing of this sort was attempted, it only remained to introduce evidence tending to show that subsequently the defendant had parted with the possession of the gun, and thereby lost control over it, thus rendering improbable the inference sought to be established by the prosecution; and this is precisely, in effect, the contention of counsel for the defendant. In the written brief it is said that, to rebut the evidence offered, the object of the evidence rejected was to show that the defendant "was not in possession of the gun,--had parted with it." It is not pretended that the evidence sought to be elicited by the question would have tended to contradict the fact of his procurement and possession of the gun as proved by the state, but it is insisted that it tends to prove that, at a time subsequently and nearer the place where the murder was committed, the "defendant was not in possession of the gun,--had parted with it,"--and in this way would have tended to rebut the inference of the facts as proved by the state. If this is the effect of the proposed evidence, or the proper inference to be drawn from it, then it was relevant, and its rejection was error, which affected the rights of the accused, and the conviction ought to be set aside. But, in my judgment, this is not the effect of the evidence proposed to be elicited by the excluded question. It simply proposed to show that, at...