State v. Pomeroy

• Citation: 46 P. 797,30 Or. 16
• Parties: STATE v. POMEROY.
• Decision Date: 09 November 1896
• Court: Supreme Court of Oregon

46 P. 797

30 Or. 16

STATE v. POMEROY.

Supreme Court of Oregon

November 9, 1896

Appeal from circuit court, Washington county; T.A. McBride, Judge.

Calvin Pomeroy was convicted of receiving and concealing stolen goods, and appeals. Reversed.

Thos. H. Tongue, for appellant.

C.M Idleman, Atty.Gen., and W.N. Barrett, Dist.Atty., for the State.

WOLVERTON J.

The defendant was indicted and convicted in Washington county on a charge of buying, receiving, concealing, and attempting to conceal stolen property. The errors assigned are: First, the denial of the motion for a change of venue; second, the refusal of the court to instruct the jury that there had not been sufficient evidence produced to sustain a conviction and to direct them to return a verdict of not guilty; and third, the giving and refusing to give certain other instructions. Of these in their order.

The motion for a change of venue is based upon the affidavits of the defendant and his counsel, which show, in substance that, at different times prior to the commission of the alleged offense charged in the indictment, three sons of the defendant had been convicted of petit larceny committed within the county; that, subsequent to such convictions, there had been a great number of similar crimes committed therein; that a great many people, without any knowledge on the subject or touching the identity of the offenders, did not hesitate to publicly assert that they were committed by some member of the defendant's family, and that the defendant himself was guilty of such things, without the slightest evidence upon which to base the assertion; that it had been charged that one of the sons of defendant was concerned in the theft of the goods which defendant is accused of concealing; that in consequence thereof the feeling in the county became so strong that in different parts thereof the people talked quite freely of lynching the defendant, and in some places expressed a determination to do so; that fictitious, false, and exaggerated reports of the manner of defendant's arrest, and of his conduct and demeanor prior thereto, had been persistently and extensively circulated throughout the county; that such things had been talked of in Hillsboro, and, as the informants believe, among the jurors; that by reason thereof a widespread and deepseated public prejudice sprang up against the defendant and his family, to such an extent that it is believed a majority of the people of the county who have heard of the matter, without any knowledge of the facts, have formed an opinion, and many of them have expressed it, to the effect that the defendant is guilty of the crime charged; and that by reason of all these facts and circumstances the defendant could not expect a fair and impartial trial within the county. Counter affidavits were filed by the state, showing, in effect, that the crime of which the defendant is charged was committed in the western part of the county; that, while there had been some discussion of the alleged crime, in and around Greenville, West Union, and Forest Grove, yet there are large sections of the county where the defendant and his family are scarcely known, and the incidents surrounding the commission of the crime but little talked of, if at all; and that many people in the county have never heard of the alleged crime with which defendant is charged. Upon the showing thus made, the motion was overruled. It is usually regarded that such a motion lies largely, if not exclusively, within the sound discretion of the trial court, the exercise of which is judicial in its nature, and is subject to review only when abused to the prejudice of the applicant, and that fact is in some way made to appear. 3 Am. & Eng.Enc.Law, 108. Our statute (Hill's Ann.Laws Or. § 1222) provides that "the court may order the place of trial to be changed *** when it appears by affidavit, to the satisfaction of the court, that a fair and impartial trial cannot be had," etc. Under similar statutes it has been held that the exercise of the power granted by this section is within the sound discretion of the trial court. State v. O'Rourke, 55 Mo. 440-446; State v. Sayers, 58 Mo. 587. In State v. Whitton, 68 Mo. 91, upon a question of alleged prejudice, the finding of the trial court was held to be conclusive. In State v. Guy, 69 Mo. 432, the court say: "The finding of the circuit court on that issue [question of prejudice] is conclusive, and not to be interfered with by this court, unless it appear that palpable injustice has been done." Again, the same court, in State v. Burgess, 78 Mo. 235, say: "The trial of the issue made on a petition for a change of venue is by the court, and, unless manifest error occur on the trial of that issue, to the prejudice of the accused, we cannot interfere with the finding of the court. There was evidence to sustain the finding." In State v. Brownfield, 83 Mo. 451, the court, in passing upon facts very similar to those suggested by the case at bar, say: "In this state of the evidence we cannot say that the court, in overruling the application of defendant, abused its discretion; and it is only when it appears that such discretion has been palpably abused that we can interfere, under the ruling of this court." See, also, State v. Hill, 72 N.C. 352; Watson v. Whitney, 23 Cal. 375; Hyde v. Harkness, 1 Idaho, 601; State v. Hunt, 91 Mo. 490, 3 S.W. 858; People v. Yoakum, 53 Cal. 566; People v. Perdue, 49 Cal. 425; People v. Mahoney, 18 Cal. 180. In the case at bar it does not appear that any difficulty whatever was experienced in obtaining an unbiased jury, a circumstance which leads to the conclusion that the accused suffered, by the refusal to grant the motion, no injustice; so that it is not obvious that there was an abuse of its discretion by the trial court, and its action in that respect will not be disturbed.

The evidence adduced at the trial tended strongly to show that John Pomeroy, a son of the defendant, and one John Holcomb stole the goods, which defendant is charged with concealing from the store of Briggs Bros., in the town of Dilley, Washington county, on the night of March 21st, or the morning of the 22d, 1895; that on the morning of the 23d, these parties took the goods to the defendant's barn, where they were found about noon of the same day, covered with straw. The thieves were traced to this locality by the track of a horse and buckboard, supposed to be the property of one Lousignont. The horse was found in the barn, and the buckboard under a shed close at hand. E.B. Sappington, a constable, one of the persons instrumental in the apprehension of the accused, being called as a witness for the state, testified as follows: "I took a track of the vehicle that came out of the gate (at Lousignont's) and tracked it as far as Mr. Pomeroy's field or pasture, or a gate that goes into his pasture, in sight of his house. I didn't go any further then, but went back to Greenville." After stating that he procured the assistance of Joseph and Andrew Vaughn, the witness continues: "We went down on the track to the gate, and tracked the vehicle inside, and, just as we got inside, Joe called my attention to a man coming down from the barn on a ladder. Then we rode as fast as possible. We had probably two hundred yards to go to get across a ravine to the barn, and, when we got there, I got down, and opened the gate, and there was a man standing right on the inside,--Mr. Pomeroy [the defendant]. He went on the inside of the house, and I heard Joe Vaughn ask him who drove that rig in there, and he said he didn't know, *** and he went on towards the house, and I caught up with him, and told him we were hunting for Holcomb, and asked him if he was there, and he said he didn't know whether he was or not, and it was none of our business. He went inside the house, and came out with a shotgun, and told us not to come in, he had enough of that kind of foolishness around there, and for us to get out of there. Just then Andrew Vaughn, who had gotten off the road, come across hallooing to us, and I turned around, and saw two men running from behind the barn across the field going west." The witness recognized one of them as Holcomb. After relating his experience in giving chase to the fugitives, he continues: "I took up my watch between the barn and the house. After a while Mr. Pomeroy came out, and said he would go and fix his barn,--something, I don't know what. He went on the inside, and I kept on the outside. I got as close to the barn as I could, and I heard him go around to that corner [in proximity to the goods], and work in the straw. Of course, I couldn't see. He would work there a little while, and he would come out with a board, and throw it down, and go back in again. He made several trips, and I could hear him in this straw. I heard the straw moving, and him going in there; and after a while he came out and said he would have to go to Greenville." After the accused left the witness went into the barn and found the goods. Among them were a hat and two overcoats belonging to John Pomeroy and John Holcomb. Joseph Vaughn gave testimony of a like nature, except he describes the accused, when they first saw him, as being well up to the top of the ladder in an open gable of the barn; that he turned around, and looked over his shoulder towards them, and came tearing down. H.P. Ford, the sheriff, who had come up while the accused was at Greenville, testified: "When he returned home, I asked him whose horse and wagon that was, and he disclaimed any knowledge of knowing whose it was,--said he didn't know. I asked him who had been there, and he said there hadn't been any one there. I asked him directly if his son John and John Holcomb had not been there, and he said...