State v. Rogoway

• Citation: 78 P. 987,45 Or. 601
• Parties: STATE v. ROGOWAY.
• Decision Date: 19 December 1904
• Court: Supreme Court of Oregon

78 P. 987

45 Or. 601

STATE v. ROGOWAY.

Supreme Court of Oregon

December 19, 1904

Appeal from Circuit Court, Linn County; George H. Burnett, Judge.

Oscar Rogoway was convicted of arson, and appeals. Affirmed.

H.H. Hewitt and J.J. Whitney, for appellant.

A.M Crawford, Atty. Gen., and C.L. McNary, for the State.

BEAN J.

The defendant was convicted of the crime of arson by burning a building in the town of Lebanon occupied in part by his mother as a storeroom. From a judgment sentencing him to the penitentiary, he appeals. The fire occurred on Sunday night or Monday morning, about 12 or 1 o'clock. The building destroyed was a two- story structure. There were three main rooms on the first floor, two of which were occupied by Jennings Bros. for saloon purposes, and the other by defendant's mother as a dry goods store. Back of the saloon was a small cardroom used by the Jennings Bros. in connection with their saloon, separated by a wooden partition from that part of the building occupied by defendant's mother as a storeroom. Back of the storeroom, and adjoining the cardroom, was a small room occupied by the defendant and his brother-in-law as a sleeping room and for storing boxes and the like. Defendant's mother had been in business about six weeks at the time of the fire. She did not reside at Lebanon, but the store had been in charge of a son-in-law of hers by the name of Gross. The stock of goods consisted according to the testimony of the state, principally of shopworn and secondhand articles, that at the time of the fire were not worth to exceed $200, while it was insured for $500, and a previous policy for $600 had been canceled by the insurance company. About three weeks before the fire the defendant came from San Francisco to Lebanon to assist Gross in the store. After his arrival it was their usual practice as it had been Gross' before, to drive over to Albany after the week's business was over on Saturday night, and remain until Monday morning. On the day before the fire however, for some reason unexplained, Gross went to Albany as usual, but the defendant remained in Lebanon. During Sunday he was back and forth between the place of business of a Mr. Turner, near by, and his mother's store, and Turner says he noticed he was "a little fidgety." He was last seen in Turner's store some time between 9 and 11 o'clock Sunday night. About 12 o'clock, or a little after, he rushed out into the street, partly dressed, and gave the alarm of fire. The evidence of parties who were early at the fire tends to show that it originated in that part of the building occupied by defendant's mother, and in the room occupied by him as a sleeping room. The defendant assisted in the endeavor to extinguish the fire as long as his services were of any use, and then engaged a room at a hotel and went to bed. About 4 or 5 o'clock in the morning he was aroused from his sleep, as he testifies, by two persons, one of whom he recognized as a "twenty-one" dealer at Jennings Bros. saloon, and told that he was wanted at the telephone office. He immediately got up, dressed, and went to the office, but it was locked. As to what occurred afterward and the circumstances surrounding the alleged confession are thus detailed by the parties present: Andy Jennings says that, about 4 or 5 o'clock on the morning after the fire, "Me and my brother was standing in front of the St. Charles Hotel. We was standing there talking, wondering what we would do in the morning; watching our goods. We were standing there talking, and I looked down and see Rogoway come out of the door of the St. Charles, and I said, 'There goes that Rogoway now.' He went down toward the phone office. My brother said, 'I believe I'll go down and see where he is going,' I said, 'Yes.' At that time I was on crutches. I could not walk as fast as he could. By the time I got down, Rogoway was coming out of the phone office door. My brother met him. I don't know what was said. My brother got there before I did. *** Just at that time Mr. Irwin [78 P. 988] --And I would not be sure whether Mr. Irwin and Elkins came together. They came down the street, and my brother said, 'Rogoway, come walk down the street. I would like to talk to you.' He said, 'All right, boys.' My brother turns around to the other boys and said, 'Boys, come walk down with us.' We all struck out down the street, starting from the phone office. *** Down to Lamberson's corner. *** My brother done the talking to him. He says, 'Mr. Rogoway, what do you know about the fire?' He says, 'Boys, I don't know anything about it.' My brother says to him, 'You needn't talk that way. I know better. We are satisfied that you know all about it, and every one in town does, and you might just as well go ahead and tell what you know about this.' He stood there quite a bit with his head down. My brother kept on talking in that manner. Pretty soon he said, 'Boys, I did do that.' " Mr. Irwin says: That about 4 or 5 o'clock in the morning after the fire he was standing in front of the St. Charles Hotel, and that he saw the defendant coming down the street. That Mr. Andy Jennings came along about that time, and Mr. Luke Jennings was there, and Andy said, " 'Better go down and see what he has to say.' So we went down. Luke was standing there in front of the telephone office, and Andy and Mr. Elkins," and that Luke Jennings asked him to step down from the door, and he refused to come at first, but then walked down, and "Jennings asked us to come along and hear what was said." That no conversation was held while going from the telephone office to Lamberson's corner. Jennings asked Rogoway what he knew about the fire, and he said he did not know anything; and Jennings told him that he and everybody in town knew that he burned the store, and Rogoway finally said, "Well, I burned it." "We asked him if he used oil, and he said he didn't; he used paper. Asked him why he burned it. He said, 'For Mr. Gross.' Asked him what he burned it for. He said, 'For the insurance.' Asked him what he got out of it. He said he didn't know." Elkins says: That about 4 or 5 o'clock in the morning he, in company with a man by the name of Lutz, started to go home, and just then he saw Rogoway go by. That Irwin was there, and he said, "Let's go down and see where he is going." That when he and the others came there, Luke Jennings says to the defendant, "Come down here. I want to see you;" and Andy says, "Let's go down, boys, and see what he has to say." That after they got around Lamberson's corner, Luke says, " 'Tell us what you know about this fire,' and he kind of hung his head. He says, 'Tell us what you know about this fire.' He said he didn't know anything. He said, 'We know you do, and everybody else does. You might just as well say you did this. We know it.' He hung his head a bit, and after a little he said he did it." That Jennings then asked him if he would tell the same story to the recorder, and he said that he would. That the defendant was then taken to the recorder's office, where he made the same statement in the presence of the recorder and city marshal, and was by the recorder committed to jail.

Each of these witnesses testifies that there was no force or threats used to extort the statement or confession from the defendant, and no inducement was held out, but that it was a voluntary act on his part. There is testimony, not necessary to particularize, on behalf of the defendant, tending to show that the confession was extorted from him in pursuance of a previously conceived plan of the Jennings brothers, Irwin and Elkins, and perhaps other parties; but the effect of this testimony, so far as the competency of the confession is concerned, was to contradict the evidence of the state tending to show that such confession was a voluntary act, and was therefore for the consideration of the trial court, in determining whether such confessions should be admitted in evidence. It is the settled law in this state that when, upon a trial of a criminal cause, a confession of the defendant is...