The defendant is under sentence to die because of his alleged violation of the *Page 522 law. On principle, the tribunals, which condemn him, should be required to conform to the procedural law governing the trial of criminal cases before invoking the substantive law as a ground for taking his life.
With due respect for the opinion of the court and for the venerable, experienced and learned jurist, who wrote it, the writer is unable to convince himself that approved procedure was followed in the trial of this case.
Upon the offer by the state of a purported confession of defendant, the question of its admissibility was presented. In the first instance, that is a question to be determined by the judge of the court. If the judge sustains the defendant's objection, the question cannot be considered by the jury at all. When the question is determined, the course taken by the judge in hearing and determining it should not have the effect of enlarging the scope of the testimony which the state is entitled to submit upon the issue of defendant's guilt or innocence. In the opinion of the writer, the trial court gave it such effect.
The defendant did not offer himself as a witness upon the issues joined by the charge in the indictment and his plea of not guilty. Notwithstanding that, after the confession had been admitted, which certainly must have been after the preliminary question of its admissibility had been determined by the judge of the court, the state was permitted to introduce testimony impeaching defendant's statements made while said preliminary question was being tried by the judge; testimony concerning the commission of another crime committed in California; his escape from the officers there; testimony concerning the prison record of scars upon defendant's arm and of his incarceration in the penitentiary in Oregon. There is no rule of law known *Page 523 to the writer which renders any of this testimony so received admissible in a criminal case where the defendant neither offers himself as a witness nor offers the testimony, for the consideration of the jury, which he has given upon the alleged inadmissibility of his confession.
Knowing the loquacious temperament of defendant, the very efficient and experienced district attorney, who prosecuted this case, quite properly requested that the jury be excused when the evidence upon the question of the admissibility of defendant's confession was being heard by the judge; but it is no answer to say that approved procedure was disregarded in reference to the showing addressed to the judge of the court upon the admissibility of defendant's purported confession, and hence, it was proper further to disregard it in reference to impeaching a defendant who does not testify as a witness upon the issues joined.
Neither is it an answer to say that, if the jury had not been present when the preliminary question of the admissibility of defendant's confession was being tried by the judge, the defendant would have offered himself as a witness and thereby would have given the state the right to introduce impeaching evidence. To say this, is to speculate upon what the defendant would have done, but did not do. In a criminal case, especially a capital case, mere speculation alone is not a sufficient basis upon which to receive seriously damaging evidence against the defendant.
Before the hanging of a man may be legally justified, such a man must be given a trial at all points in conformity with the law. The writer is unable to convince himself that such a trial was accorded defendant herein; and, therefore, dissents.
ROSSMAN, J., concurs in the foregoing dissent. *Page 524