State v. Roberts

• Decision Date: 17 May 1887
• Citation: 15 Or. 187,13 P. 896
• Parties: STATE v. ROBERTS.
• Court: Oregon Supreme Court

13 P. 896

15 Or. 187

STATE v. ROBERTS.

Supreme Court of Oregon

May 17, 1887

Appeal from Multnomah county.

Indictment for arson.Defendant was convicted below.

John Burnett and A. Lenhart, for appellant.

N.D Simon, for respondent.

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 JulyA.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.Youdon'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...