STRAHAN
J.
On the
fifteenth day of February, 1887, the grand jury of Multnomah
county returned into the circuit court of that county an
indictment against the defendant, charging him with the crime
of arson. The charging part of said indictment is as follows
"The said Illis Roberts, on the thirtieth day of July
A.D. 1886, in the county of Multnomah and state of Oregon
did willfully, maliciously, unlawfully, and feloniously set
fire to and burn, in the night-time, a barn of another,
namely, the barn of W.S. Ladd, situated in the county of
Multnomah and state of Oregon, with intent to injure thereby
the said W.S. Ladd."
The
testimony offered upon the trial tended to prove that the
defendant and Robert A. Burnys and Charles Gale conspired
together, in the month of July, 1886, for the purpose of
burning this barn. Their reason for doing so was, as stated
by the defendant, Roberts, that "Ladd had no business to
hire Chinamen." Burnys pleaded guilty to an indictment
for the same offense, and was sentenced to imprisonment for
five years. This defendant, after a trial before a jury, was
found guilty, and sentenced to be punished by imprisonment
for six years, from which judgment he has appealed to this
court.
This
case is one of considerable importance, and the rulings of
the court below cannot be properly understood without a
pretty full statement of the evidence given upon
the trial.
Mrs.
Almira Burnys was the first witness on the part of the state,
and she testified as follows: "My name is Almira Burnys.
I am the wife of Robert Burnys, and we lived on the
section-line road when the barn was burned. Roberts came to
our house, and I heard him and Mr. Burnys talking about
burning the barn. I knew two or three weeks before the barn
was burned that they were going to burn it, and I told Mr.
Burnys not to burn it. They went once about two weeks before
the barn was burned to burn it, but didn't. The night
before it was burned, Roberts met Mr. Burnys at our house,
and said Gale was coming; but he didn't come, so they
didn't do anything. The
next day Roberts came to the house in the afternoon, and said
Gale would meet them at the lodge. They talked about burning
the barn, and I overheard them. They were in the front room
while they were talking, and I was in the kitchen. There is
only a board partition between the rooms, and I could hear
every word they said, and see them through the cracks. They
went away about 7 o'clock. Mr. Burnys took some powder
and fuse, and I knew they were going to burn the barn. I
don't think they thought I knew anything about it. It was
not light at this time, and yet it was not dark. I saw them
when they left. They went to the lodge, and, after it was
out, Mr. Burnys, Roberts, and Gale went to the barn. Question
by Defendant. How do you know they went to the barn? Answer.
Mr. Burnys told me so when he came home, and all the
knowledge I have is from conversations overheard by me
between Burnys and Roberts. Q. Was Mr. Roberts present during
the conversation? A. Yes, sir; Mr. Burnys told me that he and
Roberts and Gale set it on fire with the powder. I was
watching the fire when he came home. The roof hadn't
caught fire yet, when he reached the house. He had his hat
and coat and shoes off when he came in, and had been running.
He said he took off his shoes so no one could hear him come
up the steps. I said, 'Roberts, what did you burn that
barn for?' and he said: 'You keep still. If you ever say a word about it I will kill you.'
Afterwards I asked Roberts, 'What made you burn that
barn?' and he said: 'That's all right; Ladd had
no business to hire Chinamen.' Question by District
Attorney. Do you know where this powder that was used to burn
the barn came from? Answer. It came from Beck's
powder-house. Q. Do you know when it came from there? A. Yes;
about a month before the fire. Q. Who brought it from
Beck's powder-house? A. Mr. Burnys and Roberts. Q. What
did they do with it? A. They buried it. Q. Where did they
bury it? A. Under the house. Q. Do you know how much powder
they took? A. They took two twenty-five pound cans, and
several small ones. Q. Do you know what else they took? A.
Yes; they got fuse. Q. Do you know where they got the fuse?
A. Yes; from Beck's powder-house. Q. How much powder and
stuff did they bury? A. All of it; the 25 lb. cans and the
small ones. Q. Do you know where the 25 lb. can is now? A.
Yes; I've got a plant in it. Q. Do you know where the
powder is now? A. I showed it to the detectives, and they
took it away."
On
cross-examination, the witness testified: "The first
person I told about the burning of the barn was Mr. Ladd. He
gave me ten dollars. That is all the money I have received
from him. I told him about it about four weeks ago. It was
just after Mr. Burnys and I had a quarrel. The trouble was
about my children. He put me out of doors, and I went with
it, and I have not lived with him since. Mr. Arthur Kelly
carried a letter from me to Mr. W.M. Ladd, which he opened
and read. I told Mr. Ladd that I did not want to go to my
grave with that secret in my possession without disclosing
it."
J. Barry, a witness for the state, testified that he
went to Burnys' house, and searched the premises.
"Question. Did you find any powder? Answer. Yes. Q. What
powder did you find? A. This twenty-five pound can, and those
small cans and fire-works." The cans of powder were then
offered in evidence.
Charles
Gale, also a witness on the part of the state, testified
substantially as follows: "My name is Charles Gale. I
live in East Portland. I have lived there about fifteen
months. We burned the barn July 30, 1886. Burnys and Roberts
and myself were present. Roberts planned the burning of the
barn. I said to him, when he first began talking about it:
'What's the use; it's fully insured, and Ladd
won't lose anything?' He said he would find out
whether it was insured or not, and some time afterwards told
me that it was not insured to amount to anything. After the
lodge was over we three went together from the lodge, and
burned the barn. We climbed the fence, and
went through the field towards the barn. When we got nearly
there, I stopped. They told me to stay and watch. They went
around on the east side of the barn, where there was a stack
of hay. Roberts split the fuse, so it could be lighted, and
put the can of powder in the hay, and Burnys touched the
match. Question. Do you know where that powder came from?
Answer. Yes; it came from Beck's powder-house. I was not
present when the powder was obtained, but Roberts and Burnys
both told me that they got the powder there. Q. Do you belong
to the secret lodge of I.W.A.? A. Yes. Q. What principles do
they advocate? A. The opposite of the Knights of Labor. Q.
Did Mr. Roberts tell you anything about Mrs. Burnys,--how she
would keep her secret? A. He said he would make her join the
lodge, and she would not dare to tell. Q. What are the
principles of the I.W.A.'s? A. They are somewhat like the
anarchists. Q. Is it not a fundamental principle
that they will perjure themselves, or do anything, to help a
member out, and is it not a fact that they threaten death to
any one who divulges any of its secrets? A. Yes; that is what
they will do."
Robert
Burnys, after he had pleaded guilty to the indictment against
him, and before he was sentenced, was also called as a
witness on the part of the state, and testified, in
substance: "I know Gale and Roberts. I have known them
eight or nine months. Roberts lived about a mile from me, and
Gale about half a mile. I was at the lodge the night the barn
was burned. Either Gale or Roberts went from my house to the
lodge with me. I don't know which it was. We had arranged
to burn the barn that night. Question. Did you ever make an
attempt before. Answer. Yes; about two or three weeks before
this we arranged to burn it. We all went by the barn, but saw
the door open, and passed on by. We thought some one was
inside. There was generally a watchman around. Q. Where did
you go after that? A. Roberts and I met at my house the
evening before the barn was burned, but Gale didn't come
so we put it off. The next night, after lodge was out, Gale
and Roberts and I went to burn the barn. When we reached the
fence around the field in which the barn stands, we climbed
over, and lay down to listen if any one was about. We may
have been there half an hour, and we may have lain an
hour,--I cannot tell; and, not hearing anything, we went up
to the barn. I had some powder and fuse and matches in my
pockets. I gave them to Gale and Roberts. They went around
between the barn and the hay-stack, and I stood off as guard.
I did not see who set the fire. When they came out we started
and ran. I cut through the fields towards my house, and Gale
and Roberts started in the direction of theirs. My wife never
told me not to burn the barn, or opposed me in any way. I
never threatened to kill her if she told. Q. Where did you
get that powder you used to fire the barn with?
A. From Beck's powder-house. Q. Who was with you? A.
Roberts. Q. How did you get in? A. We broke the lock. Q.
State whether you recognize that powder. [Exhibiting powder
in evidence.] A. Yes; that's the powder we got. Q. What
did you do with it? A. Took it down, and hid it in some
brush. Q. You don't know how many cans you got? A. We got
two large twenty-five pound cans, and some small ones,--I
don't know how many; and some fuse. When we divided them
I remember I had two cans more than Roberts. Q. What did you
do with that powder after taking it from...