State v. Warren

Mr. Justice Wolveeton,

after making the foregoing statement of the facts, delivered the opinion of the court.

1. This resume contains the chief features of the evidence going to connect the defendant with the commission of the crime charged. When the state rested, the defense moved the court to direct the jury to return a verdict of acquittal, and the denial of such motion constitutes one of the assignments of error. If there was evidence in the case fairly tending to show the defendant’s guilt, it was properly submitted to the jury. To justify an instruction to acquit, there must be a total failure of proof, or it must be so weak that a verdict based upon it would manifestly be the result of passion, prejudice, or partiality: State v. Pomeroy, 30 Or. 16, 24 ( 46 Pac. 797 ); State v. Couper, 32 Or. 212 ( 49 Pac. 959 ); State v. Glahn, 97 Mo. 680 ( 11 S. W. 260 ). It is urged that the condition of the mate produced by the blow received at the hands of his assailant must have rendered him incapable of rising from the couch or reaching his bunk where he was subsequently found; and that he could not have answered the night watchman intelligently when called by him at 11 o’clock at night, and again in the morning at 6, and that therefore the deed could not have been committed until after the latter hour, at a time when it is not shown that the accused was upon the ship or in the vicinity. The theory of the state is that the assault was committed prior to 8 o’clock, Tuesday evening, — the hour when the accused was seen to leave the ship, as testified to by Byrne. This involved Byrne’s testimony in some apparent discredit, because he testified that he saw the mate at 10 standing in a stooped position, and reaching down as if to adjust the lanqo used for heating the room, and again, an hour later, reclining on the lounge; Dr. Wheeler being of the opinion that he could not have reached his berth without assistance. The fact is shown, however, that the mate was apparently not entirely without intelligence, because when being removed from the ship he gave a direction, and made inquiry, which unmistakably indicated as much, and when irritated or aroused he was able to make reply; so that it is possible, and not at all improbable, *355 that he was able to answer the night watchman, in the manner described, at 11, and again at 6 in the morning. It is possible that Byrne might have been mistaken about seeing the deceased standing in the room at 10, or unon the lounge later. He says he just glanced in at 10 o ’clock, the light being turned halfway down or more; but at 11 he must have taken more pains to satisfy himself as to his condition, because after looking in at the porthole he passed around to the door, and succeeded in arousing him, and received an intelligent and satisfactory answer; and yet he may have been mistaken, also, as to seeing him on the lounge. And again, it is not beyond possibility that the mate had strength and intelligence enough left to have gotten into his berth and drawn the covering over him of his own volition. But these were all matters for the jury. There was an adequate motive shown for the deed, and the subsequent actions of the defendant were of such a character, when wholly unexplained, as they were, to lead to a strong distrust of him, so that there was evidence ample, under the theory adopted by the state, from which the jury might reasonably have inferred the defendant’s connection with the crime, and hence his guilt in the commission thereof. The motion to direct a verdict was therefore properly denied.

2. Another ground of error assigned is that the court permitted the state to examine witnesses at the trial, against the accused, over his objection, whose names were not inserted at the foot of the information or indorsed thereon when filed. Preliminarily to the permission of such witnesses to testify, it was developed that the names of the only persons examined before the district attorney prior to filing the information were duly indorsed thereon; these being Erickson, Olsen, and Mc-Lauchlan. The district attorney, however, had learned what some of the witnesses would testify to through their examination before the coroner’s jury, which was conducted on the part of the state by the deputy of his predecessor; and it is insisted that, having acquired such knowledge through this means, the names of all such witnesses should have been indorsed on the information; otherwise they should not have *356 been permitted to testify against the accused. The statute provides that the name of each witness examined on oath or affirmation by a district attorney in support of any information shall be inserted at the foot of such information or indorsed thereon before the same is filed; otherwise the testimony of such witness cannot be heard against the defendant at the trial: Laws, 1899, pp. 100,101, § 5. This statute was enacted for a purpose, and that was evidently to afford the accused an opportunity of ascertaining the names of the witnesses with whom he would probably be confronted at the trial, and thereby be the better enabled to prepare for his defense. Such statutes are mandatory in character, and should be observed to the letter by the executive officers of the law, that the defendant may receive the full benefit designed for him by the legislature: State v. Smith, 33 Or. 483 ( 55 Pac. 534 ); State v. Andrews, 35 Or. 388, 391 ( 58 Pac. 765 ); Stevens v. State, 19 Neb. 647 ( 28 N. W. 304 ); Parks v. State, 20 Neb. 515 ( 31 N. W. 5 ); and State v. Stevens, 1 S. D. 480 ( 47 N. W. 546 ). We are of the opinion, however, that the examination of witnesses before a coroner’s jury at an'inquest, touching the cause of the death, is not such an examination in sxipport of the information as is contemplated by the statute, and hence that the witnesses objected to were properly permitted to testify. We are inclined to give to the statute the broadest and most comprehensive application possible in furtherance of the statutory and constitutional right of the accused, to a fair trial, and to enable him to prepare his defense intelligently, and to proceed therewith without any surprise being sprung upon him; and any practice tending to its resti’iction should be discountenanced.

3. On the cross-examination of Erickson, a witxiess for the state, the defense elicited the fact that witness and the defendant had a fight, in which the defendant’s face was bruised; and on redirect examination witness was allowed to state, over the objection of the defendant, that the difficulty was started by the accused applying an opprobrious epithet to the witness; and the disregard of the objection is assigned as error. The *357 fact that a fight had occurred between the parties was elicited by the defendant on the cross-examination of the state’s witness, which was pertinent and relevant in order to show the bias of the witness towards the defendant. The bare fact of a difficulty being thus established, it was not altogether irrelevant to show how it came about, as it had a bearing upon fixing the extent of the bias, and for which purpose alone it was admissible. As is said, in Ellsworth v. Potter, 41 Vt. 685 , 689: ‘ ‘ This testimony was not intended or calculated to show which party was in fault, but only the degree-of estrangement between them. It is impractical by any general rule to fix the precise limit which should govern the admission of such evidence, and necessarily it must be left, to a considerable extent, to the discretion of the nisi prius court. ’ ’ The trial court was duly careful in guarding defendant’s rights, and exercised a commendable discretion in the particular complained of, so that there was no error in allowing the state to show the origin of the estrangement, under the circumstances. See, also, State v. Sargent, 32 Me. 429 , and Beasley v. People, 89 Ill. 571 .

4. After the existence of the clot of -blood upon the lounge had been established, the state sought to show by Dr. Wheeler the probable length of time necessary to acquire the consistency in which it was found, which the court refused to permit over the objection of the defendant. When the defendant came to offer his testimony he called Dr. Biei-sdorf, who testified that it takes from five to ten minutes for hlood to form into a jellied condition; and then some further matter was elicited as to the length of time it would take for decomposition to set in. Dr. Wheeler,, in his examination for the state, had described the clot as being in a jelly-like condition, and of such consistency that it could be lifted with the hands, and, being called in rebuttal, was permitted to testify, over objeelion, that, in his opinion, it would take from nine to twelve hours for blood to get in the condition in which it ivas found; and error is predicated on the ruling. The reason given for the objection was that the testimony sought to be introduced was touching a matter that should have been shown before the *358 state rested, but the court exercised its discretion and allowed it to go to the jury as a part of the state’s case in chief, stating to the defendant at the time that he would have a reasonable opportunity to produce such evidence as he desired in rebuttal thereof. In our opinion, the testimony was properly admissible in the first instance, Dr. Wheeler being a competent expert in the premises (State v. Magers, 35 Or. 520, 538 , 57 Pac. 197 ; State v. Knight, 43 Me. 11 ; Linsday v. People, 63 N. Y. 143, 158 ; People v. Smith, 106 Cal. 73 , 39 Pac. 40 ); and the trial court exercised a proper discretion in permitting it to be given at that time, especially as it had been excluded when offered in its regular order upon the objection of the defendant. The further inquiry as to the time when decomposition would begin to take place was suitable in the development of the subject which the defense had introduced.

.5. One 'Scott Morrill testified that he kept a place of business in Portland in January, 1900, and that on the 23d of the month there was no keno game running; the purpose being to contradict a witness produced by the defendant who gave testimony tending to show that the defendant had been lucky and won $10 or $12 at witness’ place of business on the night of the homicide. On cross-examination it was elicited that the witness had a memorandum in which he kept an account of his winnings from night to night, and that none were shown for the night of the 23d, and, after a critical inquiry touching the memorandum, the defendant moved to strike out his testimony on the ground that he was speaking from the book, and not-from his recollection. But the witness did speak from his recollection, either from being refreshed by an inspection of the book, or independently of it, when he was examined in chief, and the production of the book or memorandum was a matter called for by the defendant himself; and the fact that he spoke on cross-examination as to other matters exclusively from the memorandum constituted no valid reason for taking the evidence introduced by the state from the jury.

6. Another assignment of error goes to the introduction by the state of testimony tending to show the whereabouts of the *359 other members of the crew the night of the assault, with the purpose of diverting suspicion from them as perpetrators of the crime. The testimony was not intended to show an alibi as to the crew in particular, and thereby raise- a collateral issue, but to show with greater emphasis the absence of persons other than the defendant on shipboard, whose place of abode was there, and thus increase the probability that defendant was the guilty party. The testimony was therefore admissible.

There are many assignments of error based upon instructions asked and refused, all of which we have examined with care, both with reference to the argument of counsel and authorities cited; amd suffice it to say they are not attended with sufficient merit to require further discussion. All matters in controversy having been resolved in favor of the state, the judgment will be affirmed. Affirmed.