State v. Saunders

• Decision Date: 15 December 1886
• Parties: STATE v. SAUNDERS.
• Court: Oregon Supreme Court

12 P. 441

14 Or. 300

STATE v. SAUNDERS.

Supreme Court of Oregon

December 15, 1886

Weatherford & Blackburn and John Burnett, for appellant, Saunders.

J.J. Whitney and William M. Ramsey, for the State.

THAYER, J.

The appellant was indicted, tried, and convicted of murder in the first decree before the circuit court for the county of Linn. From that conviction he has appealed to this court, and alleges several grounds of error for which he claims the judgment should be reversed and a new trial granted. The main errors assigned are: First, the admission of the dying declaration of the party whom he is alleged to have murdered; second, permitting improper questions to be asked the appellant when on the stand as a witness in his own behalf, and compelling him to answer them; third, erroneous instructions given by the court to the jury in regard to the manner of their deliberations, of the necessity of their agreeing upon a verdict, and remarking to them in the charge that they would be kept together until they had agreed upon their verdict; and, fourth, error in the court in overruling certain challenges made for cause to certain of the jurors drawn to try the appellant upon the charge. We have examined these various grounds with a considerable diligence, and will briefly state the conclusions at which we have arrived.

In regard to evidence of dying declarations in such a case, it is contended by the appellant's counsel that they are not admissible at all, in view of the constitutional immunity that a party accused of an offense shall have the right to be confronted by the witnesses against him; and that, if receivable at all, it must be in a case where no other evidence of the killing is obtainable; that their admission as evidence is only upon the ground of necessity, which did not exist in this case, as the killing was admitted. This character of testimony has been regarded as competent for a very long time,--long before the adoption of the constitutional guaranty in favor of accused parties above referred to, and has universally been admitted since,--and we could not determine that the bill of rights contained in the constitution of this state had changed the rule without exhibiting great arrogance upon our part. The appellant's counsel seemed to think that the declaration that "in all criminal prosecutions the accused shall have the right to meet the witnesses face to face" could have been nothing less than that they should be living and present in court when their testimony is delivered. But the right to offer that character of proof is not restricted to the side of the prosecutor; it is equally admissible in favor of the party charged with the death. 1 Greenl.Ev. § 159. The objection to it, therefore, might, if sustained, operate very injuriously to an accused; and the clause in the bill of rights, if construed as the counsel contended it should be have the effect to deprive the latter of an important right. The rule, although sanctioned by constitutional declaration like all general rules, has its exceptions. It does not apply to such documentary evidence to establish collateral facts as would be admissible under the rules of common law in other cases, (Cooley, Const. Lim. note 2, 318;) and the exceptions to it, as Judge Cooley says, at same page of that work "are of cases which are excluded from its reasons by their peculiar circumstances." The admission of dying declarations has uniformly been held to be one of the exceptions; and it would be folly for this court to attempt to overthrow the numerous decisions to that effect. There being other evidence of the killing would not, necessarily preclude the admission of such declarations. They are admitted upon the presumption that there is no other evidence as satisfactory, though, doubtless, the origin of the rule was the inability to prove the act by any other testimony. The trial judge has so much better opportunity than this court to determine questions of that character that it would not be proper to interfere with the decision of the former unless a clear case of error is shown to have been committed.

Complaint is made, also, that the declarations of the party slain in the present case were not as to facts entirely, but embraced conclusions,--that part of them, particularly, in which the deceased said: "He shot me down like a dog." Declarations of a party in extremis, in order to be admissible, must be as to facts, and not to conclusions. They are permitted as to those things to which the deceased would have been competent to testify if sworn in the case. 1 Greenl.Ev. § 159. But I do not think the expression of the deceased a conclusion. It was given as part of his narrative relating to the affair, and I think it was merely intended to illustrate the lack of provocation, and the wantoness in which the appellant did the act. It was descriptive of the manner in which the act was committed. It conveyed the idea that the appellant disregarded the claims of humanity, and, without giving him any warning, wantonly shot him. It was the statement of a fact made by way of illustration.

The overruling of certain of appellant's challenges to jurors called to try the case is another question left largely to the discretion of the presiding judge at the trial. Cases of homicide are calculated to create excitement and comment; and, where information is so readily and generally diffused throughout the entire community as in this age of newspapers, the acts and circumstances attending such an affair are liable to be known and understood extensively. It becomes difficult, therefore, to select a jury in a community where it has occurred, without drawing jurors who know more or less about the case. The person accused of a crime is entitled to a fair and impartial trial. But does it necessarily follow that because men read and are informed in regard to the current events of the day, that they are thereby disqualified to act as such jurors? This depends much upon the credulity of the person, and the tenacity with which they adhere to preconceived notions. It hardly seems possible that a sensible person would allow impressions from such a source to affect his deliberations and verdict as a juror in so important a matter. The judge who tries the case determines the sufficiency of the challenge to the juror. If made, as in this case, for actual bias, and is denied by the opposite party, testimony is given upon the question, and upon that testimony the sufficiency of the challenge is determined. The point to be determined is whether there exists such a state of mind upon the part of the juror, in reference to the party challenging, that he cannot try the case impartially, and without prejudice to the party's substantial rights; and this, the statute says, must be determined by the exercise of a sound discretion. The evidence in this case upon the question of the qualification of the jurors challenged, showed that they had, to some extent, formed an opinion as to the guilt or innocence of the accused which they said would require evidence to remove, but thought they could try the case impartially. The trial judge heard their testimony, had an opportunity to observe their manner, and deemed them qualified to sit in the case. Unless, therefore, we conclude there has been an abuse of discretion, we have no right to interfere in the decision upon that point. It was a question of fact to be determined. The impression or opinion the jurors had formed was from newspaper accounts and general rumor, and the circuit court had a better understanding of the extent of the opinion than we can obtain from the bill of exceptions. This court ought not to reverse a judgment upon such grounds, unless the evidence of the juror's incompetency is pretty clear and certain,--at least shows some cogent circumstances against it,--circumstances of a nature calculated to impress upon the mind of the juror a conviction, such as having heard the testimony in the case, read a detailed statement of it, or been told it by some one claiming to know.

The objection to the instructions to the jury, as to their duties, telling them the effect of a disagreement at common law, and of how juries were kept together until they did agree, the mitigation of the rule in the United States, and remarking to them that they would have to remain together, and could not separate, until they agreed on a verdict, and brought it into court, cannot be entertained. It was proper for the court to inform the jury respecting their duty; advise them how they should consider the matter before them, and the course to pursue in reaching a conclusion. Nor should the concluding remark in the charge be construed as any determination to keep them together until they had agreed, or an indication that the case, in the mind of the court, was so plain that they would not be justified in failing to agree. The court was evidently endeavoring to administer the law fairly and honestly, and I am satisfied that the apprehension of counsel that the course pursued was improper arises from a zeal for their client, and an overzealousness that his rights, under the law, have been disregarded. The court had a responsibility to discharge, and, so far as anything appears in the transcript, did it conscientiously. The jury must have understood that they would be discharged if not able to agree from what the court expressly told them.

The next and last ground of error involves the right of the attorney for the state to examine the appellant while on the stand as a witness. This presents the most serious question in the case by far. It appears that the appellant offered himself as a witness in his own behalf, and testified to the circumstances of the killing. After having...