State v. Von Klein

• Decision Date: 16 June 1914
• Citation: 71 Or. 159,142 P. 549
• Parties: STATE v. VON KLEIN.
• Court: Oregon Supreme Court

142 P. 549

71 Or. 159

STATE v. VON KLEIN.

Supreme Court of Oregon

June 16, 1914

Department 1.

Appeal from Circuit Court, Multnomah County; J. P. Kavanaugh, Judge.

E. E C. Von Klein was convicted of polygamy and sentenced to imprisonment in the penitentiary for the term of from one to four years, and appeals. Affirmed.

Burnett J., dissenting.

W. T Hume and T. B. McDevitt, Jr., of Portland, for appellant. Robert F. Maguire, of Portland (Walter H. Evans, Dist. Atty., of Portland, on the brief), for the State.

RAMSEY J.

On December 13, 1913, the grand jury of Multnomah county returned an indictment against the defendant, charging him with the commission of the crime of polygamy committed as follows:

"The said E. E. C. Von Klein, alias George B. Lewis, on the 12th day of October, A. D. 1911, in the county of Multnomah and state of Oregon, then and there being, did then and there knowingly and feloniously live and cohabit with a woman, to wit, one Ethel Newcomb, as his wife, he (the said defendant) then and there having a wife then living, to wit, Louise Illstrup Von Klein, contrary to the statute in such cases made and provided and against the peace and dignity of the state of Oregon."

The defendant was arraigned upon said indictment, and he pleaded not guilty. He was tried and found guilty by a jury on the 23d day of December, 1913. On December 27, 1913, he was sentenced to imprisonment in the penitentiary for the period of from one to four years. The defendant has brought this case here on appeal, and asks for a reversal of the judgment for several alleged errors.

1. The first point made by the defendant is that the court erred in permitting the witness E. J. Carpenter to testify as to the identity of Ethel Newcomb, as complaining witness against the appellant, charging him with the larceny of about $3,300 worth of property, for the reason that the said evidence, if it tended to prove anything, tended to prove another crime, and did not tend to prove the charge contained in the indictment. The witness Carpenter, having referred to Mrs. Lewis, and having stated that she was known also as Ethel Newcomb, was asked by the state this question:

"Is that the same Ethel Newcomb who complained against the defendant, charging him with larceny of some $3,300 worth of diamonds?"

Counsel for the defendant objected to this question, alleging that it was incompetent and irrelevant and tended to prove another crime. The attorney for the state represented to the court that he was asking said question for the purpose of proving the identity of the woman. The court overruled the objection, and the witness answered that it was the same woman. We think that said evidence was admissible for the purpose of identification. We do not think that to say a person is the same person that accused another of larceny tends to prove that the person so accused was guilty of larceny, especially when the statement was made for the purpose of identification.

2. There was some evidence given in this case that tended to show that the defendant stole some valuable jewelry from Miss Newcomb at the Portland hotel at the time that he was living and cohabiting with her as his wife, as charged in the indictment. The defendant contends that the admission of said evidence was error. On the other hand, the state contends that such evidence was admissible to show the motive that prompted the defendant to marry Miss Newcomb and take her to the Portland hotel, and there cohabit with her as his wife. The evidence showed that the defendant had a lawful wife in Minnesota; that, only a few days before he was living with Miss Newcomb as his wife at the Portland hotel, he illegally married her in San Francisco, and took her to Portland, and went to the Portland hotel and registered as "Mr. and Mrs. Geo. B. Lewis," and they were assigned to room 637 of that hotel; that the defendant remained there only two or three days, and during that time lived with Miss Newcomb as his wife and called her his wife, and introduced her to persons about the hotel as his wife; that Miss Newcomb had jewelry valued at $3,300 which she wore at the hotel and at a theater; that, after they had been at the hotel about two days, the defendant exhibited a lot of jewelry, wrapped in a lady's handkerchief, to some persons in the hotel barber shop and told them that it belonged to his wife, and that he was going to have it cleaned; that he went down town ostensibly to have the jewelry cleaned and disappeared, leaving Miss Newcomb and taking her jewelry with him, and leaving the hotel bill unpaid; and that he was arrested in Chicago and brought back to Portland.

The state contends, and the evidence tends strongly to prove, that the defendant planned to steal Miss Newcomb's jewelry, and that, to obtain an opportunity to steal said property, he illegally married her, took her to the Portland hotel, and lived with her as her husband two or three days, obtained possession of her jewelry on a pretense that he would have it cleaned, and immediately absconded, taking the jewelry with him.

The state contends that the motive for marrying and living with Miss Newcomb was to obtain an opportunity to steal her said property, and the evidence tends to support that contention. The state contends also that the marrying of Miss Newcomb, the living with her at the Portland Hotel, and the stealing of her jewelry were so closely connected as to form one transaction.

In State v. Roberts, 15 Or. 195, 13 P. 899, the court says:

"All of the acts of the parties, done in the furtherance of the common design, though separated by time, and not continuous, constitute one entire transaction, and may be shown upon the trial."

In State v. O'Donnell, 36 Or. 225, 61 P. 893, the court says:

"If the facts and circumstances tend to show that the prisoner committed an independent dissimilar crime, to enable him to perpetrate or conceal an offense, such evidence is admissible against him upon an indictment charging the auxiliary crime, when the intent to perpetrate or conceal such offense furnished the motive for committing the crime for which he is put upon trial."

In State v. Start, 65 Or. 185, 132 P. 514, 46 L. R. A. (N. S.) 266, the court says:

"Under the third exception, an illustration would be where a burglar stole tools from a foundry with which to break the safe burglarized. Evidence of one crime could in such circumstances be given to support an indictment for the other. On the trial for burglary, the stealing of the tools could be shown as preparation for the crime charged, and, on an indictment for larceny of the tools, the commission of the burglary with them would supply the motive for stealing them."

In 2 Wharton's Criminal Ev. (10th Ed.) 1667, the author says:

"But the evidence of other crimes is admissible to show motive, and, where relevant for this purpose, the admissibility is not affected by the fact that such evidence may prove other crimes."

We think that the evidence supports the state's contention that, when the defendant illegally married Miss Newcomb, he did so for the purpose of obtaining an opportunity to steal her jewelry, and that his living with her at the Portland Hotel was a part of the same scheme, and that the state had a right to prove the larceny of her jewelry by him to show the motive for his living and cohabiting with her at the Portland Hotel as his wife. The illegal marriage, the cohabitation at the hotel, and the larceny of the jewelry formed one connected transaction or scheme.

3. The second assignment of error asserts that the trial court erred in sustaining the objections of the state to questions asked J. H. Marble concerning "Jack Lewis." This assignment is too general to raise any question for review.

However, we have examined the cross-examination of the witness Marble that is set out in the bill of exceptions, and we find that the questions there set out all asked whether Marble had read accounts supposed to have been published in the Oregonian concerning the arrest of the defendant. We cannot see the competency or relevancy of newspaper accounts of the defendant's arrest. The court properly ruled them out.

4. The fourth, fifth, sixth, and ninth assignments of error raise similar questions and can be properly considered together. The defendant was indicted for larceny of the jewelry of Miss Newcomb, and he was tried upon said charge, and the jury failed to agree upon a verdict and were discharged. On the trial of the defendant on said charge of larceny, Miss Newcomb was present and testified. At said trial the Rev. E. R. Dilley was a witness and testified. The evidence of both of these witnesses was taken down in shorthand by J. F. Wood, the official reporter of the court. When said witnesses were examined in said case, the defendant was present in person and by his attorney, W. T. Hume, Esq., and the defendant had an opportunity to cross-examine said witnesses. His attorney, Mr. Hume, did cross-examine each of them at that time, and the defendant "met them face to face." These witnesses were absent from the state when this case was tried, and the evidence given by them in the larceny case, so far as it was relevant to the issues in this case, was admitted in evidence and read to the jury. When the evidence of E. R. Dilley, given in the larceny case, was offered in evidence, counsel for the defendant objected thereto for the following reasons: "Objected to as incompetent, irrelevant, immaterial, and no foundation laid," etc.

When the evidence of Miss Newcomb, given in the larceny case, was offered, counsel for the defendant objected thereto, for the reason that said evidence was "incompetent, irrelevant and immaterial," etc. These objections were...