State v. Wilson

• Decision Date: 27 December 1945
• Citation: 177 Or. 637,164 P.2d 722
• Parties: STATE <I>v.</I> WILSON
• Court: Oregon Supreme Court

177 Or. 637

164 P.2d 722

STATEv.

WILSON

Supreme Court of Oregon.

Argued December 4, 1945.

Affirmed December 27, 1945.

Criminal law

1. Where defendant's first objection to order excluding witnesses from courtroom was made when defendant made a motion to have order rescinded on the following day and after three witnesses had testified for state, state's resistance to defendant's motion was a "request" that witnesses be excluded, and denying motion was proper.

Criminal law

2. Under statute providing that if either party required it judge could exclude witnesses from courtroom, court was not deprived of its discretionary power to exclude witnesses to prevent their testimony from being influenced by others.

Criminal law

3. In murder prosecution, under evidence, court properly excluded witnesses from courtroom.

Criminal law

4. The determination of trial court that defendant's confession was obtained without influence of hope or fear exercised by a third person will not be disturbed on review unless clear and manifest error exists.

Criminal law

5. In prosecution for murder where at time defendant's confession was admitted, court instructed jury that defendant's testimony relative to his condition at time of making confession could be considered in determining weight to be given confession, admitting confession was not error.

Criminal law

6. Affidavits of jurors as to what occurred during their deliberations may not be received to impeach their verdict.

Criminal law

7. In prosecution for murder, where court fully instructed jury on murder and manslaughter, and five forms of verdict read to jury were first degree murder without recommendation, first degree murder with recommendation, second degree murder, manslaughter, and not guilty, denial of a motion for a new trial on ground of alleged misconduct of some of jurors was not error.

                  See 53 Am. Jur. 46
                  23 C.J.S., Criminal Law, § 1012
                

Before BELT, Chief Justice, and KELLY, ROSSMAN, BAILEY, LUSK and HAY, Associate Justices.

Appeal from Circuit Court, Multnomah County.

WALTER L. TOOZE, Judge.

George Wilson was convicted of murder in the second degree, and he appeals.

AFFIRMED.

L.B. Sandblast, of Portland, for appellant.

T.B. Handley, District Attorney, and Philip M. Bagley, Deputy District Attorney, both of Portland, for respondent.

BAILEY, J.

On June 29, 1944, the grand jury of Multnomah county, Oregon, returned an indictment accusing George Wilson of the crime of murder in the first degree and charging him with having, on June 24, 1944, in Multnomah county, Oregon, unlawfully, feloniously, purposely, and of deliberate and premeditated malice, killed one LeRoy K. Logan by shooting him with a revolver. The jury found the defendant guilty of murder in the second degree, and, from the judgment sentencing him to life imprisonment in the state penitentiary, Wilson has appealed.

Defendant and Logan were employed at the Swan Island shipyards and were living in one of the barracks at or near the yards. At about 10:30 or 11 o'clock in the morning on the day the crime was committed, defendant, Logan, and several other employes of the shipyard began shooting craps in one of the barracks. The game continued until evening, the defendant being present only intermittently. At about 6 o'clock in the afternoon, an altercation arose concerning the winnings, resulting in a fight in which defendant, Logan, R.L. Stokes, and others, were involved. Defendant suffered eye and head injuries.

He left the barracks and started for the first aid station. On his way he stopped at the guard office and reported the fight to Sergeant Cribbens. This was about 6:10 p.m. As defendant was about to leave, he asked Sergeant Cribbens what the penalty in this state was for killing a man. The sergeant replied that he thought it was "probably a life sentence". From there the defendant went to the first aid station and had his right eye, which by this time had swollen shut, and other injuries about his head treated. Upon leaving the first aid station, defendant proceeded to his own barracks, procured his revolver and returned to the barracks where the crap game had previously been in progress. When he arrived there he found a number of shipyard employes, including Logan and Stokes, engaged in the game of "cotch", in which playing cards are used and which is similar to blackjack. The players and the spectators were grouped around the bed on which the game was being played. Defendant took a position near by and watched the game for 15 or 20 minutes, according to his testimony, and from 25 minutes to three-quarters of an hour, according to the testimony of other witnesses. Then, without warning, he drew his revolver and shot both Stokes and Logan twice, seriously wounding Stokes. Logan died a few minutes later.

This shooting occurred about ten or fifteen minutes before 8 o'clock. Defendant was immediately arrested and taken to the police station. Some time between 9:30 and 10 o'clock p.m., he was asked by a deputy district attorney if he desired to make a statement and he answered in the affirmative. Thereupon a stenographer was called and in her presence, the presence of two deputy district attorneys, and two detectives, he was questioned concerning the incidents that transpired before and at the time of the shooting. The questions and his answers thereto were reported in shorthand by the stenographer and later transcribed by her. The next morning these questions and answers, as transcribed, were read to and by him, and he stated that they were correct, and he signed each of the five sheets of the transcription.

At the beginning of the trial and after the jury had been selected and sworn, the court ordered that all "witnesses in this case on either side will be excluded from the courtroom during the proceedings except only when they are called as witnesses to testify." On the following day, and after three witnesses had testified for the state, the defendant made a motion "to have the court vacate its ruling excluding witnesses from the courtroom on the ground that it is taking undue surprise advantage of counsel for the defense, and is depriving the defendant of testimony that could be adduced before the jury with these other witnesses present so they could understand and refresh their testimony, * * * depriving the jury of the benefit of a witness refreshing his memory, * * *. The witnesses should be here and hear all the testimony that may be given or introduced, especially where there is a case where many people were present at the time, and the defendant has been taken by surprise and counsel can not readjust his method of trial after the trial has been commenced; no time to get these witnesses assembled and give them any information about what has been testified to, * * *."

Counsel for defendant further stated, as a ground for his motion, that the court had no authority, on his own motion, to exclude witnesses. This motion was resisted by the district attorney. In denying the motion, the court stated that the resistance thereof by the district attorney would be...