Rehearing granted and former opinion adhered to March 18, 1934 ON REHEARING (30 P.2d 751) IN BANC. W.M. DUNCAN, Judge.
On rehearing.
JUDGMENT OF CONVICTION AFFIRMED. The defendant, Theodore Jordan, a colored man, was tried and convicted of the crime of murder in the first degree. The death penalty was imposed. On appeal the judgment of conviction was affirmed. A rehearing having been allowed, it remains for this court to determine whether such error has been committed as to warrant a reversal of the judgment and a remanding of the cause for a new trial.
Has the guilt of the defendant been established beyond a reasonable doubt? Has he been given that fair and impartial trial which the law contemplates? Or, has he, as his counsel contend, been the victim of a miscarriage of justice? These questions will be given earnest consideration. We are not unmindful of the fact that a human life is at stake. Let us turn to the record. *Page 525
About 11 o'clock on the night of June 3, 1932, F.J. Sullivan, a dining car steward, was assaulted by being repeatedly hit over the head by some blunt instrument while he lay asleep in his berth in a car sidetracked in the Southern Pacific railroad yard at Klamath Falls, Oregon. The injuries were of such serious nature that Sullivan was taken to the Southern Pacific hospital at San Francisco, where he lay for months in a semiconscious condition hovering between life and death. He was never able to talk or to recognize any person, and died on October 15, 1932. That the attack made upon him was the direct cause of his death is not questioned.
On the night of May 28, 1932, Jordan was seen on this same diner as it was side-tracked in the yards after the day's run from Oakland. J.S. Garner, a colored man and an employee of the railroad company, saw Jordan on this occasion and talked with him. When Garner asked Jordan, "Say, what are you doing in this diner?" the latter replied, according to the testimony of Garner, that he "wanted to see one of the Oakland boys — that he used to live in Oakland and I heard he was over here". Eugene H. Love, a yard man, saw Jordan on this same night and talked with him. According to Love, Jordan told him "that he either had a brother working on the diner or else he wanted to ask something about a brother". Jordan in his testimony, aside from his confession, admits being on the diner and talking with Garner. It is the theory of the State that Jordan on this date was looking "the situation over" with the intention of committing a robbery. On the night of the attack, Sullivan had $282.25 in his possession, being dining car receipts.
Mrs. Callie Timms, a colored woman, testified that Jordan left her home in Klamath Falls about 10 o'clock *Page 526 in the evening of June 3, 1932. Elton V. Jackson, a state police officer, testified that he saw Jordan about 10 o'clock on this night, as he was coming out of an alley near the Court View hotel and that "he had a long object wrapped up in a newspaper under his arm". Jackson said that when he turned the lights of his automobile on him, Jordan "pulled the object more in front of him out of my sight". The State claims that this object was a piece of pipe about eighteen inches long used by Jordan when he struck Sullivan over the head. Jordan asserts it was a roll of cellophane which he had purchased from Montgomery Ward Co. The manager of the store testified that no cellophane was carried in stock. Howard C. Short, a yard man for the railroad company, testified that on the night the crime was committed he saw a person of about the same stature as the defendant board the dining car in question. He said that this person "started running along this moving equipment and the door on a car was open but the trap was down, and this man run alongside of the equipment and reached over and laid something up on the trap and stepped on the step, grabbed hold of the grab-handle and crawled over the trap; the trap was level with the car floor, and he laid thisthing in on this trap and then boarded the car and went on in. That was the first time I ever saw anybody board that passenger equipment going out to make the turn around". Howard Hendricks, the locomotive fireman, also testified that he saw a person in a dark overcoat and cap board the car at about 10:38 o'clock on the same night.
Jordan was arrested at about 7:45 on Saturday morning by city police officers Lyon and Arnold. They had been looking for Jordan the greater part of the night but were unable to find him at the usual *Page 527 places where negro people in that community congregated. The officers went twice every hour from 1 a.m. until 6 a.m. to the place at 46 Main street where Jordan roomed, but were unable to find him. Later investigation developed that the bed had not been used that night. After the arrest, Jordan was asked where he had stayed during the night and, according to witness Lyon, the defendant said 625 Plum street. Later, when other officers together with Lyon and Arnold, investigated the house at the last above named street address, the house was vacant and had a "For Rent" sign thereon. It contained a stove, bed, and mattress, but no covers.
After this investigation, Officers Lyon and Arnold took Jordan to see W.G. Chandler, a special agent of the Southern Pacific Company. Chandler testified that he went out from his office to where the car was and said "Good morning" to Jordan and that the defendant told him that he "had the wrong man this time". Chandler, in addressing Jordan, further said, "`You remember you have lied quite a lot before, and I suspect you are lying this time; and if you are guilty of this terrible crime it is going to mean your neck,' and I did draw my hand across my ____." This statement by Chandler is relied upon strongly by the defendant as tending to show that he was under duress and fear at the time he signed the confession of his guilt, to which later attention will be directed. After this conversation with Chandler which occurred Saturday morning, Jordan was confined in the county jail. The investigation of the crime continued.
While in jail, Jordan was questioned at some length concerning the crime charged and on Saturday night made a written confession in the office of the district *Page 528 attorney. The State does not rely upon this confession and the defendant says it was a "damned lie". After making this confession, Jordan was taken to a restaurant in Klamath Falls about 11 o'clock Saturday night to get something to eat. Jordan was returned to jail late Saturday night. On Sunday afternoon, Jordan was again taken to the district attorney's office where, in the presence of the district attorney Gillenwaters, Loyd Low, sheriff of Klamath county, Deputy District Attorney Van Vactor, and a shorthand reporter, Dewey Powell, he dictated the second confession, the one offered in evidence, which the State asserts is the truth. Chandler was not present. Jordan was then brought back to jail. After the shorthand notes were transcribed, the written confession was, on Sunday evening, taken to the jail, whereupon Jordan signed the same in the presence of Powell, the reporter, Gillenwaters, Van Vactor, James A. Wherland, a telegraph operator, and Hardin C. Blackmer, a deputy district attorney, and Rex McMillan, a deputy county sheriff. Chandler was not present. He had, however, previous to the making of the confession, questioned the defendant at length concerning the commission of the crime. All of these witnesses, with the exception of Gillenwaters, testified that Jordan read the confession over before he signed it. Wherland, in response to the question, "What was the demeanor and general attitude of the defendant at that time as you observed it?" answered, "Well, he seemed to be in very good spirits; he seemed to be glad to get something off of his mind. He read it over and Mr. Blackmer asked him if it was okey and he said: `Yes, it is all right', and walked over and signed it. He seemed to be very glad about it." *Page 529
The alleged confession reads as follows:
"I, Theodore Jordan, being first duly sworn, depose and say: That I make the following statement freely and voluntarily, without duress, undue influence, threats or promises of immunity of any kind, nature or description and knowing that the same can be used against me in the trial of any action arising out of the contents of the same, and that I do hereby consent that the same may be so used against me.
"That on the night of the 3rd of June, 1932, in accordance with previous plans made by myself, I went to the railroad yard of the Southern Pacific Company, Klamath Falls, Klamath county, Oregon, with plans to rob the dining car steward when it arrived in Klamath Falls, Oregon, about 10:15 p.m. After having made several attempts to secure a revolver but with no successful results, I decided the appropriate thing then to do would be to hit the steward on the head with something. After searching for some particular implement with which to hit the man, I found a piece of 1-in. water pipe about two feet long. I found this behind the Court View Apartments in the alley. This I wrapped in a newspaper. That pipe seemed to serve my purpose very well and I picked up and hid it in the grass that evening. I came back later on my way to the Southern Pacific railroad yards to rob the steward and secured the pipe and wrapped it in a newspaper. I came out of the alley and turned down back of the jail and went to the yards. I boarded the dining car on the blind side. The door was open but the trap was down so I took hold of the bars and climbed over and had the pipe in my hand still wrapped up. I entered the dining car and sat down, the dining car crew was in bed in the car. I looked around and noticed that the lights were plentiful and decided to put them out which I did. I ran my hand up a row of switches and turned all the fans on and then I turned them off. I was dressed in my dark trousers and an old shirt and an overcoat and cap. After I discovered there was too much light I decided to put them out. I then got up and put out one light in the front end by unscrewing *Page 530 the bulb. Then I went back and sat down and the train started. Finally I got up and went to the steward's berth and looked in. I knew where the steward was sleeping. I began searching around for keys and looked in his coat but they weren't there but I did not look in his pants. I looked under the bed and found his hand bag. I took that down to the kitchen end of the car and searched it. I didn't find any money in it so I brought it back. The train stopped again and I stood behind the steward's berth for about five minutes until the train started again. Then I entered the man's berth by unbuttoning the curtain and the foot of his berth and walked in. I looked at him for about 10 seconds. He was laying on his left side with his face towards the aisle. For some reason the train gave a sudden jerk and the steward turned over on his right side. He was asleep. Then I struck the man with the pipe I had but I took the paper off the pipe before I hit him. He raised up with his left hand slightly raised and I struck him across the hand. He just grunted. I hit him about eight or ten times. I hit him hard the first time and then hit him easy the other blows. The first time there was kind of a thud but the rest of the blows were easy. All of this occurred while the train was moving. I discovered that one of the waiters had been awakened when I looked around to see if anybody was getting up. I could see the lower part of the waiter's body from under the curtain on the opposite side from the steward's berth. When I saw this man I ran out. I never got a thing. I got off the train and let a couple of cars go past and then I got on the last car. I threw the pipe off fairly close to the overhead bridge below Shaw-Bertram's mill. I got off the train then and walked down to the burner at the Shaw-Bertram mill. I put the coat cuffs and gloves in the fire and burned them. These had blood on them. I walked down the track a ways maybe a city block and I struck another match and saw blood on my overcoat sleeves. I went over to a little mud hole to wash the blood off in the water. It didn't seem to come off well enough to suit me so I went back to the burner again *Page 531 and threw the coat in and walked back the tracks to the Ewauna Box company. I turned left and went through the lumber yards and went down Commercial street to Seventh street. I went up Seventh street to 625 Plum street. I went in that house and took off the shirt I had on and burned it up and put on a clean shirt and dress coat which I left in that place. I figured I might accidentally get some blood on me so I prepared. On the way to the train I left my dress coat and a clean shirt at the house. I then went over to the Club. I arrived at the Club about five or ten minutes ahead of Mr. Lyons of the Police Force. I came out and met Officer Lyons at the door when he came in. He flashed his light on my face and said `Hello'. I stood there for a little while and the officers were inside and then I decided to ask Alice for a blanket. Her husband's name is Sunny and they live close to the Club. I never saw her before. I stood on the side porch and talked with her. She opened the door and talked through the screen. She inquired about the law and after I asked for the blanket she suggested that I go over and see who was arrested. The Law went away and I went over to see if anyone was arrested. There was nobody arrested. Then I decided to go over to 625 Plum street and spend the rest of the night which I did and I got up the next morning early about 6:30 and came up 7th street and met a police officer and said `Good morning' and he returned the greetings and I turned west on Main and turned at 3rd street to the alley and I passed three State Police officers and said good morning to them. Then I went over to Mrs. Timms house. She offered me some breakfast and asked me whether I had gone to church the night before, to which I said, `Yes'. Then she informed me that the officers had been there the night before inquiring for me and they wanted to know if I lived at that house. She said no that I didn't live there but I had been taking my meals there which was the truth. She also explained that she invited the officers in but they accepted her words as true. She asked me what was the reason they were looking for me. I explained *Page 532 that perhaps it was because I was living on Main street where they didn't want the colored people to live. She then suggested that I take the matter up with Mrs. Dennison in regard to the police officers chasing me around. I agreed to go and see Mrs. Dennison. Just as I left Mrs. Timms' house and arrived at the corner of 2nd and Klamath the police officers drove up and arrested me.
"I was alone on this robbery, it was my own idea and there was nobody connected with it in any way. No one talked to me about the robbery and I went on this robbery alone.
"I went down to the railroad yards on May 16th, the night Earl Carrol's show was in town and the next time I went down was about May 23rd. I just went down and inquired for Spencer Jordan and I got in the day coach with the brakeman and while talking with them the train went out to the `Y'. That is when I first learned that the train took the diner down and turned it around. I have worked on the Southern Pacific all told about three months as a waiter on the dining car and I am familiar with the diners and I know where the crew and the steward sleeps."
Mr. McMillan, the deputy county sheriff, testified that on the same night, after Jordan signed the confession, viz., Sunday evening, June 5th, he had a conversation with Jordan in the jailer's bedroom and that he told him "he had planned to commit this crime and that he had found this piece of pipe in the alley over here back of the Court View Apartments, and that he took the pipe and came out of the alley and went down around the corner of the jail, and went down to the railroad yard and boarded the diner and struck the steward in the head several times, and while the train was returning from the Texum `Y' he got off the train near the Shaw-Bertram Mill; and at that time he went to the burner near the Shaw-Bertram's and burned up his overcoat and gloves". *Page 533
The confession was signed by the defendant on Sunday evening. Mrs. Callie Timms, the colored woman referred to by defendant as his "mother", came to see Jordan in jail on the following Monday. She testified, when called by the State, that on this visit Jordan told her he was not guilty. She said, however, that on the next day, Tuesday, June 7th, she called again on the defendant and "that was when Theodore said he was guilty". This witness was recalled by the defendant and, in response to the question, "Now you just tell the jury, Mrs. Timms, what that last statement that Theodore made to you in the presence of Sheriff Low was; just turn to these people and tell them as best you can", answered, "Well as much as I can remember, he said he went down — he said he was in the middle of it but he did not do it — did not commit the crime, or did not do whatever was done, but he was in the middle of it. He said there was a man by the name of Alex Brown, I think, that was connected with it, and he told me just what — Afterwards, when Sheriff Low came in, he told in my presence that it was not — that he did not do it but he was in the middle of it." The record discloses in cross-examination of this rather unwilling witness:
"Q. He did make the statement, however, to you, he was guilty did he not?
"A. Well he said he was in the middle of it.
"Q. Well you made the statement on the State's case that Theodore told you he was guilty?
"A. Well, he might have worded it like that, I don't remember, but I know he said he was in the middle of it."
Sheriff Low testified that Mrs. Timms told him in the presence of the defendant that "Theodore said he was guilty and wanted to tell her about it and she did not *Page 534 want to be alone and be the only witness to it. And she called for Mr. Van Vactor and I; and Mr. Van Vactor had stepped out, so I stayed in there while he told her he had committed the ____". Due to interruption by the court, the witness never completed the answer but it is obvious what it would have been had he been permitted to proceed. Low said that in subsequent conversations Jordan told him "a couple of times about pulling the job" and had made a proposition to him to enter a plea of guilty and receive a sentence of twenty years in the penitentiary. The sheriff told him that he would not accept his proposition and told him "it was impossible for him to do it". It will be recalled that Sullivan was still alive at this time. Could it be that the defendant was seeking a bargain? Jordan took the sheriff to the place near the Timms house where he got the piece of water pipe and also to the place near the Shaw-Bertram Lumber Company's mill for the purpose of showing where "he had throwed the pipe and where he burned the coat up". Referring to this matter the sheriff said that Jordan told him "he burned the cuffs off the coat and went back and burned the coat; after he tried to wash it off and could not wash it off to suit him, he took it back and burned it up, right across the tracks from the factory" and that he "rode down, hanging on the back end of the car until he came in sight of the sign of the Shaw-Bertram Lumber Company and he dropped off, and that was where he threw the pipe as quick as he dropped off". It will be recalled that the matter of burning the clothes to destroy the blood stains and the throwing away of the water pipe were mentioned by Jordan in his alleged confession. Further, Jordan in his confession said that after he came back from burning his clothes he went to the *Page 535 house at 625 Plum street and "took off the shirt I had on and burned it up and put on a clean shirt and dress coat which I left at that place. I figured I might accidentally get some blood on me so I prepared". The State introduced evidence that the ashes from the stove in the house at 625 Plum street were examined and found to contain some burned shirt buttons. Human blood stains were found on the trousers of the defendant when his clothes were removed at the jail.
A.M. Gilbert testified concerning a conversation with the defendant on June 1, 1932, wherein the latter tried to get him to help in robbing the dining car. Gilbert said Jordan told him "that he had studied it out in the penitentiary and had it in his mind, and we could go out there; and they left Oakland with a certain amount of money and when they got here the money would be around two hundred dollars, and he said we would go down and get it; and I told him I did not participate in it, while I let him talk for a long time; I told him I would not, so he asked me to loan him my gun and he would go and get the money". According to the testimony of Gilbert he refused to lend Jordan the gun and undertook to persuade him not to do the job. It was developed on cross-examination that Gilbert was a professional gambler and the common law husband of a colored woman. The credibility of the witness was a matter for the consideration of the jury.
Ethel M. Mestas, who admitted on cross-examination that she had been convicted of a felony, testified concerning a conversation with Jordan on May 28th or 29th at 46 Main street. She says that "during this conversation he verbally diagrammed his intention of visiting the S.P., of which he had formerly been employed; he stated that he knew the routine of the *Page 536 S.P.; that he was familiar with that the deceased, Sullivan, returned with an amount anywhere between two hundred and fifty or three hundred dollars, balance of his run; also on his leaving Klamath Falls he usually carried the sum of one hundred dollars". Consider the following portion of the record relative to her testimony:
"Q. Now I will ask you whether or not, Mrs. Mestas, the defendant Theodore Jordan asked you if you had a gun.
"A. He did.
"Q. Did he explain to you what he wanted to do with the gun?
"A. He said he intended robbery.
"Q. Did he tell you who he was going to rob?
"A. He said he was going down to the S.P. train which arrived in here somewhere after the hour of ten o'clock, and he stated to me how he would go and what he would do; he stated either the deceased would have the money on his person or in a drawer somewhere on this diner, and that if he interfered in any way he would `bump him off', or anybody else who interfered.
"Q. Now, did you loan him a gun?
"A. I did not. When he asked me for a gun I told him I had no gun or never had one in my possession."
She also testified concerning a later conversation with the defendant on the morning of June 3, 1932, at the same place. In this conversation he is alleged to have said "he was going to go through with the plan he had planned to do, and I told him to go on, he was `nuts', and left him there; that was the expression I used".
In the light of this evidence to which attention has been directed, the jury was evidently convinced beyond any reasonable doubt as to the guilt of this defendant. *Page 537 The jury undoubtedly believed that the confession introduced in evidence was not obtained through duress, coercion, or promise of immunity.
Before the confession was introduced in evidence, the state offered testimony in the presence of the jury, tending to show that the defendant was not promised any leniency or immunity, nor was he subjected to duress, coercion or threats in order to induce him to make a confession; that he was warned that any statement made by him would be used against him; and that the confession was free and voluntary. The defendant thereupon, through his counsel, requested permission of the court to take the stand and testify relative to the facts and circumstances surrounding the dictation and execution of the confession. Such permission was granted by the court and the defendant, in the presence of the jury, gave a long, weird and rambling story as to how he was subjected to abuse and mistreatment to compel him to confess. He told the jury that there was no quarrel between him and the state of Oregon but there had been a feud between him and Chandler for "over a period of nine years". He thereupon exhibited to the jury certain scars on his arm which he claims resulted from the use of an electrical appliance which he called a "truth tester". He said that while he was in jail Chandler put this appliance on him and that "he put my arm back of my back and attached it to a light socket and there was heat in it and he burned me". He said that they took all his clothing away from him and that he "had no food, no water, no nothing" during Saturday and that "the fireworks" were started in the presence of "Mr. Van Vactor, Mr. Gillenwaters, Chandler, Mr. Low, and Chief Merrill". Jordan testified that Chandler said "Are you going to come clean?" "I said: `Before I admit I pulled any robbery *Page 538 job or attempted robbery I will commit suicide first.' This man said `Do you want to kick off?' I said `You bet, before I admit to you'. He went in his holster and pulled out this automatic. He said: `Do you want this?' I said, `Yes, give it to me.' He said: `Maybe I had better use it first.' I said: `Pull the trigger if you want to.' He said: `It would be doing you a favor.' I said: `Maybe it would.' He put the gun away. I guess he got cold feet. I looked around at Chandler and he had one about that long (indicating). He said to me — of course, I don't like to use this language because it is not my custom, but if you want to hear it I will say it. He said, `you black son-of-a-bitch, are you going to come clean with the goods, or I will let it go?' I pulled up my sleeve and showed him where he had done it before. This (indicating) is where Mr. Chandler shot me in jail, in 1924 inDunsmuir, in the little wooden jail, when I was handcuffed and onthe floor and knocked out. Here is what happened, if it is of any interest to you people; I was working on a job with a company from the state of Louisiana." Thereupon the court interposed a question, "What is all of this about?" and when Jordan answered, "I'm going to show you how Mr. Chandler worked those third degree methods on me", the court said, "You mean something that happened before this? If you do, they can cross-examine you on it and we will have to try this whole matter out." Counsel for defendant then cautioned him that he had better confine himself "to what happened here". However, Jordan continued, "I showed them wherehe shot me and showed where he hit me with a blackjack and also showed the fillings, where he broke my tooth out and kicked me once in the mouth when I was down. I told them what he had done. He forced me to admit I stole two revolvers and eight dollarsin *Page 539 cash and some whiskey. That was what I was sent to San Quentinfor. I threw it up to him and he did not like it; I threw it up to him (indicating) that he had helped double-cross me and that the defendant's attorney had helped to double-cross him, and I had gave him fifty dollars to oil his mit and he went to Goldendale, Washington, for Christmas with this man." Again the court admonished the defendant that he had better not go into all of these matters, but in response thereto the defendant said, "There is some double-crossing in this matter" and proceeded to tell about Chandler hitting him with a "sap" and injuring his thumb, stating that Van Vactor then "jumped up and got between us and said `Nix on the rough stuff'." The defendant said that during this alleged mistreatment Van Vactor was behind the desk and Gillenwaters was sitting in a chair. After injecting a great deal of matter wholly irrelevant and immaterial to the issue of the confession, the defendant continued, "When Mr. Chandler told me to stand up the second time Mr. Van Vactor had sat down behind his desk and I was arguing with this man (indicating), Mr. Gillenwaters, about letting Mr. Chandler beat me up; and at that time Mr. Chandler kicked me in the testicles, and, if this Jury doubts it, I will submit my body for examination. I fell down to the floor, and Mr. Van Vactor and Mr. Gillenwaters helped me in a chair, and at that time Mr. Chandler put that back on my arm, what they called the `truth tester' and he fixed it up to the light socket and he would sit behind me and ask me questions and he worked something on it and would go `buzz, buzz,' and it burned me. * * * * * * * * I did not commit the robbery onAlfred Gould. I was double-crossed. Mr. Van Vactor assured me if I would plead guilty with assault not being armed with a dangerous *Page 540 weapon, although they could not find a dangerous weapon, I would get fifteen years. He said, `You are young — twenty-three. You can do fifteen.' I do not know if it was on the square or not, but I do know he made some awful propositions to me and they have some awful jokers." Jordan thus related how he tried to fasten the crime on another person: "I picked out Alexander Dexter, because if I did not, I knew I was scheduled for another beating and a good one. I knew Alexander Dexter had been on the diner before, and he did not hear he died in 1927; — If I give them the description of a man who was dead they would let me alone, when they searched the records and found he was a dead man. That was why I picked him out. * * * I also told him I was pretty sure he pulled the job." Jordan said that Chandler "sat on the sidelines and dictated the confession", referring to the one which has been introduced in evidence. Jordan claimed that, at this time, Chandler "put the gun on me". The direct examination of Jordan covers twenty pages of the transcript and it is indeed impracticable to set forth in further detail what he said not only about the manner in which the confession was obtained but as to what he did both before and after the alleged commission of the crime. The statements made by the defendant relative to his alleged mistreatment were strongly contradicted by witnesses for the state.
It is asserted that the trial court erred in allowing testimony to be offered in the presence and hearing of the jury relative to whether the confession was freely and voluntarily executed. No authorities in point from this jurisdiction have been cited to support this contention and none can be found. In the instant case, it was the district attorney and not the defendant who requested the court to exclude the jury during the preliminary *Page 541 hearing concerning the giving of the confession. Be that as it may, whether or not such evidence be heard in the presence of the jury is a matter resting in the discretion of the trial court:State v. Roselair, 57 Or. 8 (109 P. 865); State v. Spanos,66 Or. 118 (134 P. 6); State v. Morris, 83 Or. 429 (163 P. 567). The defendant has no cause to complain.
The procedure to be followed by trial courts was clearly stated by Mr. Justice HARRIS in a concurring opinion in State v.Morris, supra, and has, without dissent, been approved by this court in the later cases of State v. Stevenson, 98 Or. 285 (193 P. 1030), and State v. Green, 128 Or. 49 (273 P. 381). Mr. Justice HARRIS said:
"If the judge tries out the preliminary question of admissibility of the confession by hearing all the evidence onboth sides in the presence of the jurors and if he receives the confession and allows it to go to the jury then the triers ofthe facts have a right to consider all the evidence indetermining how much weight and credibility should be given tothe confession; and so, too, if the preliminary question is decided in the absence of the jury, either party is entitled upon demand to have the jury hear the witnesses tell about the circumstances which relate to the voluntariness of the confession."
In State v. Roselair, supra, a request by the defendant was made to exclude the jury while the preliminary examination relative to competency of the confession was made. This request was denied by the trial court over the objection and exception of the defendant. On appeal it was held that no error was committed, as it was a matter resting in the discretion of the lower court. Also to the same effect see State v. Spanos, supra. *Page 542
Counsel for defendant assert that the trial court erred in permitting the district attorney to cross-examine the defendant relative to his conviction of the crime of robbing Alfred Gould in 1928. It will be recalled that this matter was first brought to the attention of the jury by the defendant. He testified on direct examination that "he did not commit the robbery on Alfred Gould". Was the State bound to remain mute and let the defendant thus impress the jury with the idea that over a course of years he had been the victim of double-crossing and unfair treatment by some of the officers involved in the instant case? Was it not, under such circumstances, permissible for the State to show that the defendant did, in fact, plead guilty in 1928 to the crime of robbing Alfred Gould? Certainly it was a matter affecting the credibility of the defendant.
It is argued, however, that the defendant took the stand solely to testify relative to the voluntariness of the confession and that the evidence should have been confined to this issue. We quite agree. It does not follow, however, that the State is bound to remain mute when the defendant, against the admonition of the court and his counsel, takes advantage of the opportunity to inject irrelevant and immaterial matters into the case to prejudice the jury. He failed to take the stand after the State had closed its case in chief.
The State was obliged to establish prima facie that the confession was freely and voluntarily made by the defendant. The evidence relative to this issue was primarily for the consideration of the court. When it held that a prima facie case had been established and that the confession was admissible in evidence, it still remained for the jury to determine whether the confession was voluntary or not and the weight to be *Page 543 given it. In the consideration of the voluntariness of the confession, the jury was entitled to know all the facts and circumstances surrounding its execution and had a right to consider the credibility of the witnesses: State v. Stevenson, supra; State v. Morris, supra; State v. Roselair, supra;State v. Spanos, supra.
When defendant testified that he was tortured by an electric appliance or "truth tester" and that it had caused scars on his arm which he exhibited to the jury, it was not only proper to cross-examine him about such matter but to refute his testimony by calling J.S. Murray, chief clerk in the identification office at the Oregon state penitentiary, who testified that these same scars were on defendant's arm when he was "dressed in" at the penitentiary in January, 1929. Likewise, when the defendant testified that "Mr. Van Vactor took a knife and cut me under the fingernails. He said `I'm going to show you a trick with holes in it' and cut me under all my finger-nails", the State was not bound to remain silent but had the right to refute this story. In so doing, the defendant was not being impeached upon a collateral matter.
The defendant Jordan, who requested the privilege of testifying in the presence of the jury, also brought out in his direct examination his previous conviction in California and claimed that he was shot by Chandler while he was in jail at Dunsmuir, before he was taken to San Quentin. Did the State not have the right to refute this testimony and to cross-examine the defendant? Was the State bound to remain silent and let the defendant undertake to show that he was "railroaded" to the penitentiary? As well stated by Mr. Justice BEAN in the opinion on original hearing:
"If the charges of force and violence by the same officers in the previous prosecution were permitted to *Page 544 go unchallenged to the jury, it would, in effect deny the state the right to show that the confession in the instant case was voluntary, and the right to show the circumstances surrounding the obtaining of the confession so that the jury could correctly determine the weight and credibility to be given the confession."
In all the argument of counsel for appellant relative to the cross-examination of defendant concerning his commission of other crimes, they fail to take cognizance of the fact that Jordan brought these matters to the attention of the jury. In State v.Stilwell, 109 Or. 643 (221 P. 174), it is said:
"Under our statute, upon the trial of criminal action a defendant who elects to testify in his own behalf waives the constitutional protection guaranteed by Article I, Section 11, Constitution of Oregon, as to all matters germane to the facts to which he has testified upon his examination in chief: State v. Deal, 52 Or. 568-570, (98 P. 165). In the cross-examination of a defendant in a criminal action, the state should not be held to a rigid rule which would restrict the cross-examination, so as to prevent inquiry as to any matters which would throw light upon the testimony given in chief and germane thereto. Subject to the limitation that the cross-examination shall pertain to the testimony given upon the examination in chief the accused subjects himself to the same liabilities on cross-examination as do other witnesses: Wharton Crim. Ev. § 430. The prosecutor is not required to frame his questions in the language used by counsel upon the examination in chief. The inquiry upon cross-examination may extend to facts and circumstances apparently germane to the facts testified to in chief. Such cross-examination may be as searching and broad as the foundation upon which it rests."
The scope of the cross-examination in the instant case was considered carefully in the original opinion (State v. Jordan, supra). We adhere to the law in this respect as declared therein. *Page 545
Since it was ultimately for the jury to determine the voluntariness of the confession and as Jordan had testified concerning such issue, it was proper for the State to impeach his credibility by showing that he had been convicted of crime:State v. Goodloe, 144 Or. 193 (24 P.2d 28); State v.Gilbert, 138 Or. 291 (4 P.2d 923), and numerous authorities cited therein. Also see exhaustive note 6 A.L.R. 1626. When Jordan took the stand he placed in issue his credibility as a witness.
As the confession was a part of the State's case in chief, what difference did it make whether such impeachment came before or after the introduction of the confession in evidence? It was not error to offer evidence relative to the confession after it was received in evidence. Did the State not have the right to strengthen its prima facie case? In what way was defendant prejudiced? The order of proof rested in the discretion of the court.
No exceptions whatever were taken by counsel for defendant relative to the instructions of the trial court. Neither have they complained about the same either in oral argument or in their printed briefs. Apparently they were satisfied that the issues and the law of the case had been clearly and accurately stated. However, it is now urged for the first time that the judgment of conviction should be reversed because the court erred in giving the following instruction:
"Although the confession of the defendant, which was properly received in evidence, admitted not only the fact of the killing but also facts tending to show that the act was committed by him with such deliberation and premeditation as to constitute murder in the first degree, yet, that is not conclusive on the defendant. The accused is not estopped to deny and disprove the statements in this confession. He may show, when he confessed, that his confession was not voluntary. *Page 546 The rule that a confession is to be considered in its entirety does not compel the jury to give the same belief to every part of it. The jury may attach such credit to any part of it as they deem it worthy of, and may reject any portion of it which they do not believe. All of it must be carefully weighed by the jury, and upon all the circumstances surrounding the case they must determine how much of it they will receive and how much of it they will reject.
"The competency of the evidence is, however, for the Court, while the weight and credibility of a confession as evidence are to be determined by the jury upon the same principles that they determine the weight and credibility of any evidence; that is, upon the consideration of all the circumstances connected therewith.
"Subject to the control of the Court, you are the exclusive judges of the effect or value of evidence addressed to you. However, your power of judging of the effect of evidence is not arbitrary but is to be exercised with legal discretion and in subordination to the rules of evidence. * * *"
It is asserted, in effect, that the trial court, in the giving of the above instruction, shifted the burden of proof to the defendant. We do not so construe it. The court was not talking about the burden of proof but was advising the jury that, although the confession had been admitted in evidence, the weight to be given to it, or to any part of it, remained ultimately for the determination of the jury. The instruction was taken almost verbatim from State v. Blodgett, 50 Or. 329 (92 P. 820), wherein the court said:
"Although the confession of defendant, which was properly received in evidence, admitted not only the fact of the killing, but also facts tending to show that the act was committed by him with such deliberation and premeditation as to constitute murder in the first degree, yet that is not conclusive upon defendant. `The accused is not estopped to deny and disprove the statements in his confession. He may show that when he *Page 547 confessed he was intoxicated, and may disprove by independent evidence of any sort any incriminating fact confessed by him. The rule that a confession is to be considered in its entirety does not compel the jury to give the same belief to every part of it. The jury may attach such credit to any part of it as they deem it worthy of, and may reject any portion of it which they do not believe. All of it must be carefully weighed by the jury and upon all the circumstances surrounding the case they must determine how much of it they will receive and how much of it they will reject': 12 Cyc. 484. The competency of the evidence is, however, for the court, while the weight and credibility of a confession as evidence are to be determined by the jury upon the same principles that they determine the weight and credibility of any evidence; that is, upon the consideration of all the circumstances connected therewith. * * *."
It has ever been the law in this jurisdiction that the State has the burden of showing that the confession was voluntarily made.State v. Blodgett is not to the contrary and has never been impliedly or expressly overruled by State v. Howard, 102 Or. 431 (203 P. 311), or State v. Morris, supra.
However, even had the instruction in question not been clear, the matter of burden of proof is concisely covered in the following instruction given by the court:
"You are instructed in this case that the defendant is not required to prove himself innocent for the reason that he is, at the outset of the trial, presumed to be an innocent man, and this presumption goes with him throughout the entire trial and stands as a shield to protect him, unless the state has proven to your satisfaction and beyond a reasonable doubt each and every material allegation of the indictment, and, therefore, the truth of the charge; and in this case the burden of proof nevershifts, for the reason that the *Page 548 defendant has entered a plea of not guilty, which puts in issue every material allegation of the indictment."
It is argued, but not by counsel for defendant, that since Sullivan was still alive at the time the alleged confession was made in June, 1932, the defendant therefore did not confess to the crime charged in the indictment. No citation of authority is given to support this contention. Defendant undoubtedly was responsible for the consequences of his unlawful act. If his signed statement is true, the defendant deliberately and premeditatedly planned to rob Sullivan and, in order to accomplish the same, struck him several times over the head with a piece of water pipe. As a result of this unlawful attack Sullivan died. What difference does it make, so far as the essential elements of the crime are concerned, whether Sullivan was killed instantly or died several months later as a result of this unlawful assault?
It is not assigned as error in the briefs, but is nevertheless urged, that the trial court erred in failing to instruct the jury that evidence relating to the character of the defendant should be considered only by it in determining the credibility to be given defendant's testimony. No request was made for such instruction. The authorities cited in support of the above contention are cases wherein the court failed to give requested instructions. This court has never held it to be incumbent upon the trial court to give such an instruction unless requested so to do.
It has been established beyond a reasonable doubt that Jordan is guilty as charged. His confession of guilt rings true. The evidence strongly corroborates the recital of facts as made by the defendant in his confession. No member of this court has argued to the contrary. It is not contended by my brothers on the *Page 549 bench that Jordan was subjected to abuse and mistreatment. Yet error is urged, not assigned in the briefs nor advanced by counsel for defendant in oral argument, as ground for reversal of the judgment. In a long line of decisions beginning with the leading case of Kearney v. Snodgrass, 12 Or. 311 (7 P. 309), this court has adhered to the guiding principle, "that it is not error simply, but error legally excepted to that constitutes ground for reversal". In State v. Kelley, 118 Or. 400 (247 P. 146), a case involving capital punishment, the court, in referring to Kearney v. Snodgrass, supra, said, "That case is firmly implanted in our jurisprudence as a guiding principle and has never been disturbed from that date to this. We must, therefore, decline to consider exceptions not embodied in the bill". To avoid the force and effect of these decisions, however, Rule 12 of this court is invoked, which provides that, "* * * The court reserves the right in furtherance of justice to notice on its own initiative a plain error of law apparent on the face of the record". We inquire where, in the instant case, is the plain error of law which would justify the application of this rule? The object and purpose of the rule is clearly stated in State v.Laundy, 103 Or. 443 (204 P. 958, 206 P. 290). We see no reason to invoke it in the case at bar, for we are convinced there has been no miscarriage of justice.
Other assignments of error have been previously considered to our satisfaction in the opinion on original hearing, and we see no need to restate the law applicable thereto.
Finding no error prejudicial to the rights of the defendant, it follows that the judgment of conviction is affirmed.
KELLY, J., dissents. *Page 550