State v. Olds

Strahan, J. The defendant was indicted by the grand jury of Multnomah county for the crime of murder in the first degree, and upon a trial before a jury of that county, he was found guilty as charged in the indictment and duly sentenced to suffer the penalty of death, from which judgment this appeal is taken. Upon the argument on the appeal counsel for the prisoner argued with much force and ability two rulings of the trial court which were adverse to the appellant. The first was the refusal-of the court to continue the case for the term on account of the excited and inflamed state of the public mind in the county, alleged to have been caused by the comments of the Daily Oregonian and Telegram in reference to the killing charged in the indictment and the circumstances surrounding the event; and the other was the method pursued by the trial court in obtaining a jury for the trial of this particular case. But in the view we have taken of some other questions presently to be noticed we have concluded to express no opinion on the two points above suggested. 1. The main error relied upon by the appellant is the ruling of the trial court in the admission of evidence. One Thomas Williams, who was called as a witness on the part of the defense, gave evidence tending to prove that both he and the deceased Emil Weber were gambling men; that he had known deceased about five years; that about two hours before the killing he had a conversation with the deceased, in which, amongst other things, the deceased said, speaking of his eye, which had been hurt in a previous fight with-the appellant, “lam pretty near ready for another battle, and it will not be a fist fight this [442] time.” “He,” meaning appellant, “can lick me in a fist fight, and I will have no fist fight next time; I will, just kill the son of a bitch,—that is what I will do with him.” The witness also testified in substance that he knew the general reputation of Weber in the community with reference to his being a peaceable and quiet or a quarrelsome and dangerous man, and that such reputation was bad, and that the defendant’s reputation for peace and quietude was good. On his cross-examination this witness testified in answer to questions by uhe district attorney, and without objection, that he had collected money in Seattle, Tacoma and Portland to assist in the defense; that he had raised between eight and nine hundred dollars for that purpose; that the witness had contributed about five .hundred dollars. The district attorney then asked the witness who were the parties here in Portland that had contributed towards that fund, to which an objection was made but overruled. An exception was taken and the witness said “Sliter.” The witness then testified, under like objections and exceptions, that Sliter and McNamara contributed $100; that John Russell kept a saloon on Washington street and contributed to the fund; that “ The Mascot” also contributed; that Paul Puhr also contributed $100, but not in Portland; that Prenchy Grattan contributed in the neighborhood of two hundred dollars, and that his business was gambling. None of these parties inquired about by the district attorney were witnesses in the cáse nor were they. in any manner connected with the trial. The State had the right, on the cross-examination, to ask this witness anything that would show his interest in the result of the trial, and anything he did in aid of the defendant about the trial, for the purpose of enabling the jury to properly weigh his evidence, and to intelligently pass upon his credibility. This was done without objection. Upon the argument here the district attorney conceded that the examination by which the-above facts were elicited from the witness, Williams, was not cross443 examination, but that in asking these questions he made the witness his own, and that the facts were to be regarded as original evidence introduced on the part of the State, and this presents the real question to be determined by this court. Was it competent for the State to prove, as independent facts, that certain saloon-keepers and gamblers in the city of Portland contributed in making a defense in this case? This question may be answered by referring to one or two of the plainest and simplest elementary rules of the law of evidence: “And it is an established rule, which we state as the first rule governing in the production of evidence, that the evidence offered must correspond with the allegations, and be confined to the point in issue.” 1 Greenleaf Ev., § 51. A few cases may be cited in which this rule has been indirectly or incidentally applied: Campbell v. State, 8 Tex. App. 84; Watson v. The Commonwealth, 95 Penn. St. 418; Cesure v. State, 1 Tex. App. 19; Pinkard v. State, 13 Tex. App. 468; State v. Lapage, 57 N. H. 245; Farrar v. State, 2 Ohio St. 54; State v. Miller, 47 Wis. 530; Commonwealth v. Campbell, 7 Allen, 541; Hall v. State, 51 Ala. 9; Brock v. State, 26 Ala. 104; Rogers v. State, 62 Ala. 170. And it is equally as well settled that this rule excludes all evidence of collateral facts, or those which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute; and the reason is said to be that such evidence tends to draw away the minds of the jurors from the point in issue, and to excite prejudice and mislead them; and, moreover, the adverse party having had no notice of such a course of evidence, is not prepared to rebut it. 1 Greenleaf Ev., § 52. The evidence objected to did not in any manner relate to the killing of Emil Weber by the defendant, or have any connection whatever with that event; and it in no manner tended to connect the prisoner with the killing or accounted for his actions or motives. To make the absurdity of such a rule as the State tries to apply in this case more apparent, let us'suppose that a [444] considerable number of the best people of the city of Portland, or of the whole State, saw proper to raise a fund to hire lawyers to assist in conducting this prosecution; could those facts be shown by the State for the purpose of throwing the moral force of their influence with the jury against the prisoner? Or, let it be supposed that the same class of people contributed a fund to assist the appellant in his defense; could the fact be proven on his behalf for the purpose of exciting sympathy in his behalf with the jury? If such evidence as this would not be admissible, on what principle can it be claimed that the fact that saloon-keepers and gamblers contributed money to assist the defense may be proven by the State against the prisoner? For what purpose was such evidence offered? Manifestly for the purpose of arousing a prejudice in the minds of the jury against the prisoner, and of exciting a feeling of hostility against him, growing out of the fact that lawless and immoral people were actively interesting themselves in his defense. Of course we cannot say that such evidence did have that effect upon the minds of the jurors, but such was its tendency, and it is sufficient for this case that it might have had that effect. When illegal evidence is allowed to go to the jury, and particularly in a criminal case, and more especially where life is involved, we will not speculate upon its possible consequences. Such an error, presumptively, injures the party against whom such evidence is admitted, and ordinarily entitles such party to a new trial. 2. The court did not err in refusing to charge that the brass weight offered in evidence by the defendant was a dangerous weapon. That depended, I think, on Weber’s’ ability to use it in such a manner as to cause death, or great bodily harm. If he was capable of so using it, and was armed with it at the time of the killing, then the jury would have had the right to have found that he was armed with a dangerous weapon, but this was a question for the jury exclusively. It was not such a weapon as the court [445] could declare to be a dangerous weapon as a matter of law. State v. Godfrey, 17 Or. 300. It follows that the judgment must be reversed, and the cause remanded to the court below for a new trial.