Like all others, I deeply deplore the crime which took the life of Martha Virginia James. If it were possible to bring back to life that beautiful young woman, who was in the bloom of youth when death overtook her, by disregarding the errors which were committed during the trial at the expense of this defendant, I would do so; but the restoration of her life is beyond our powers. We can do nothing but answer truthfully the question: Was the defendant found guilty and sentenced to the forfeiture of his life in a trial conducted free from prejudicial error. *Page 637
Every member of this court is satisfied that errors were committed in the trial court. The sole issue before us is whether or not the defendant was prejudiced by them.
The jury was compelled to resolve two issues: (1) Was the defendant guilty or innocent; and (2) if guilty, should his penalty be life imprisonment or execution. As to the second issue, see Constitution of Oregon, Art. I, § 37, and O.C.L.A., § 23-411. Error, prejudicial to the defendant, upon either of those issues must be deemed reversible.
The majority disregard the second of the above-stated issues, notwithstanding the fact that they quote from People v. Stover,317 Ill. 191, 148 N.E. 67, the following:
"A defendant who is fully proved guilty by his own confession, which he does not deny or attempt to invalidate, has no right to complain of error in the trial where the verdict of guilty has nothing to do with the fixing of the penalty."
In my opinion, the erroneous rulings at the trial clearly prejudiced the defendant in the jury's consideration of the issue as to whether he should be imprisoned for life or executed. Before giving my reasons I pause to observe that, although the majority say that the evidence so clearly establishes the defendant's guilt that they are justified in holding the errors nonprejudicial, nevertheless, in their efforts to establish his guilt they lean heavily upon Exhibits K and L, which they hold were inadmissible. Seemingly, they cannot prove the defendant's guilt without resorting to inadmissible evidence. Exhibits K and L are, respectively, the purported Los Angeles and Albany written confessions. Neither bears the defendant's signature; *Page 638 neither was shown to him; and, as the majority concede, neither was admissible in evidence.
The section of our Constitution above mentioned says:
"The penalty for murder in the first degree shall be death, except when the trial jury shall in its verdict recommend life imprisonment. * * *"
Section 23-411, O.C.L.A., is to like effect. In Winston v.United States, 172 U.S. 303, 19 S. Ct. 212, 43 L. Ed. 456, the court, in interpreting a statute similar to our constitutional provision, said:
"The authority of the jury to decide that the accused shall not be punished capitally is not limited to cases in which the court, or the jury, is of opinion that there are palliating or mitigating circumstances. But it extends to every case in which, upon a view of the whole evidence, the jury is of opinion that it would not be just or wise to impose capital punishment. How far considerations of age, sex, ignorance, illness or intoxication, or human passion or weakness, of sympathy or clemency, or the irrevocableness of an executed sentence of death, or an apprehension that explanatory facts may exist which have not been brought to light, or any other consideration whatever, should be allowed weight in deciding the question whether the accused should or should not be capitally punished, is committed by the act of Congress to the sound discretion of the jury, and of the jury alone."
Many other jurisdictions have laws similar to ours and to the one construed in the Winston decision. All courts agree that the determination of the penalty is one for the jury's, not the judge's, discretion. State v. Kelley, 118 Or. 397, 247 P. 146. They also unanimously hold that a judgment, which imposes a penalty greater than the minimum, must be reversed if the trial judge *Page 639 received evidence that the defendant committed crimes in addition to the one charged in the indictment.
The defendant, at the time of the trial, was twenty years of age. If he was ever previously convicted of a crime, that fact was not developed at the trial. If he is the person who took Mrs. James life, his motive remains a matter of speculation.
Now let us determine whether the errors, which the majority concede were committed, prejudiced the defendant in the jury's exercise of its discretion as to the penalty. Exhibit L was received in evidence over objections made by the defendant which the majority admit should have been sustained. One of its pages accuses the defendant of rape and threat to kill; other pages attribute to him such crimes as assault, battery and drunkenness. The state's purpose in reading those parts to the jury was to set the jury against the defendant and thus secure (1) his conviction, and (2) a verdict imposing capital punishment. The majority say that those pages were read to the jury upon the invitation of the defendant. Let us see what the record says about that.
As the majority admit, the defendant made valid objections to the admission in evidence of Exhibit L. He fortified his objections with argument which displayed their merit. Not until the objections had been overruled (erroneously, as the majority concede) do we come to the part of the record which the majority say was "the invitation." According to the transcript, the trial judge retired from the courtroom after he had overruled the above-mentioned objections, but before retiring told the district attorney that he could read the exhibit to the jury. During the judge's absence *Page 640 and while the reading was in progress, the following, according to the record, occurred:
"Mr. Weinrick and Mr. Lomax conferred together.
Mr. Lomax: You started reading it; you might just as well read all of it."
The majority construe those words of Mr. Lomax as an invitation to the district attorney to read to the jury the pages of Exhibit L which recount the questioning of the defendant about crimes and misdeeds which were wholly unconnected with the death of Mrs. James; but when Mr. Lomax spoke the above words the reading had not reached the part of Exhibit L which recounts the questioning about the extraneous crimes. The district attorney came to it later. But, suppose he had already reached that part, had not the court already overruled the defendant's objections? Could not the district attorney have proceeded with his reading whether Mr. Lomax consented to it or not? What could defendant's counsel do at the above juncture except to say, "You might as well read all of it."? All of it was an exhibit. Mr. Lomax had exhausted all available objections. To interpret his helpless reply as an invitation to the state to read inadmissible evidence will cause every attorney who is placed in a like predicament to pray for a sudden stroke of muteness.
After the court reporter's interpolation recited the above incident she next noted that the district attorney continued the reading. When he reached page 32 of Exhibit L he came to the part which recites the questioning to which Lieutenant Howard and Dr. Beeman subjected the defendant about a girl in Los Angeles whom he took to a dance. Of course that incident had nothing to do with the death of Mrs. James. At that *Page 641 point the defendant's counsel stated: "I object to that statement." The trial judge, who, in the meantime, had returned to the courtroom, ruled: "I can't shut it out; it is part of that statement." Defendant's counsel replied:
"For the purpose of the record, any of those statements showing any other actions that he has been in, that the district attorney speaks of, such as a fight with his wife, that is highly improper, and I think the jury should be instructed to disregard it as throwing no light on this case whatsoever."
The objection was overruled. The noon recess then occurred and at its conclusion defendant's counsel again objected. This time he said:
"At this time, if it please the Court, the defense will ask the Court to strike from that statement any of those references concerning the altercations with his wife or any mention of any other kind of offense. It is a lengthy statement, and I do not have all in my mind, but I think they should be inked out and the jury instructed to disregard them."
Seemingly, at that point the district attorney changed his views, for he said:
"No objection to that motion, your Honor."
Thereupon the presiding judge, in the following words, expressed a purpose to strike from Exhibit L the objectionable parts:
"I am going to eliminate those so far as I can from this statement, either delete them or cut them out."
However, the only part that was deleted consisted of four lines from page 34. The defendant was not responsible for the situation; he had objected to the *Page 642 entire document and also to the very parts now under scrutiny. After the deletion was made the remaining parts of the page were fastened together in such a way that the mending acted as a bookmark and called attention to that page of the exhibit. At that place there begin several pages of matter which clearly should never have been placed before the jury. The entire exhibit, as the majority agree, was inadmissible, but those pages were peculiarly damaging. Thus we see that nothing was done with Exhibit L at the defendant's invitation. It was all done over his repeated valid objections.
Before quoting from Exhibit L I shall take note of a few of the hundreds of decisions which hold that evidence is inadmissible which shows that the accused committed a crime not connected with the charge stated in the indictment, or that he is a criminal generally. The following, taken from Boyd v. United States,142 U.S. 450, 12 S. Ct. 292, 35 L. Ed. 1077, is illustrative of the others:
*Page 643"Proof of them only tended to prejudice the defendants with the jurors, to draw their minds away from the real issue and to produce the impression that they were wretches whose lives were of no value to the community, and who were not entitled to the full benefit of the rules prescribed by law for the trial of human beings charged with crime involving the punishment of death. Upon a careful scrutiny of the record we are constrained to hold that, in at least the particulars to which we have adverted, those rules were not observed at the trial below. However depraved in character, and however full of crime their past lives may have been, the defendants were entitled to be tried upon competent evidence, and only for the offense charged."
This court has spoken to the same effect time after time. A few of the instances are: State v. Gillis, 154 Or. 232,59 P.2d 679; State v. Willson, 113 Or. 450, 230 P. 810, 233 P. 259;State v. Brown, 113 Or. 149, 231 P. 926; State v. Casey,108 Or. 386, 213 P. 771, 217 P. 632; and State v. Bateham, 94 Or. 524, 186 P. 5.
The reason for the rule which excludes evidence of extraneous crimes is well stated in State v. Saunders, 14 Or. 300,12 P. 441, as follows:
"Place a person on trial upon a criminal charge, and allow the prosecution to show by him that he has before been implicated in similar affairs — no matter what explanation of them he attempts to make — it will be more damaging evidence against him and conduce more to his conviction than direct testimony of his guilt in the particular case. Every lawyer who has had any particular experience in criminal trials knows this; knows that juries are inclined to act from impulse, and to convict parties accused upon general principles. An ordinary juror is not liable to care about such a party's guilt or innocence in the particular case, if they think him a scape-grace or vagabond. This is human nature. The judge might demurely and dignifiedly tell them that they must disregard the evidence, except so far as it tended to impeach the testimony of the party; but what good would that do?"
See to like effect Wigmore on Evidence, 3d ed., § 194.
All of the authorities condemn the reception in evidence of parts of a confession which speak of crimes not connected with the one mentioned in the indictment. For instance, Wharton's Criminal Evidence, 11th ed., § 598, says:
"A confession made by an accused of an offense different from that with which he is charged, and *Page 644 in no way connected with it, is not admissible on his trial for the offense charged."
A recent recognition by this court of the rule which excludes from admissibility parts of a confession which speak of a collateral crime is State v. Sprague, 171 Or. 372,136 P.2d 685.
I now turn to page 34 of Exhibit L and quote from the exact place where the pasting together of the page summons the eye:
"Q. Going back to this car murder, have you ever killed anyone else on a car?
"A. Killed anybody on a car?
"Q. Yes.
"A. No, no.
"Q. Did you ever get in a berth with a woman on a train?
"A. No, I never seen the inside.
"Q. I am going to ask you if in July of this year — you were making that run around in July, weren't you?
"A. Yes, I was on that run in 1942.
"Q. Last year?
"A. Yes, sir.
"Q. I want to ask you whether or not, Bob, if one night you didn't get into a woman's berth and lay on top of her and put a knife at her throat and tell her you would cut her throat if she didn't lay still, if she screamed, and if you then didn't have sexual intercourse with her?
"A. I never did that."
Would not questioning of that kind, if conducted in the presence of the jury, call for a mistrial? Yet Exhibit L, from which I have just quoted, was not only read to the jury, but it was sent with the jury *Page 645 to the juryroom. There was no justification whatever for placing before a jury accusatory questions of that kind.
Surely the above part of Exhibit L prejudiced the defendant, at least upon the issue concerning the penalty. It is true that the above excerpt is in the form of accusatory questions and did not constitute proof that the defendant, in 1942, entered a berth and, under the threat of a knife held against the throat of his victim, raped her, but undoubtedly the jurors, under the circumstances, accepted the accusation as proof. Would they not reason that the police would not have asked those questions, that the district attorney would not have read those pages to the jury, and the trial judge would not have refrained from deleting them from the exhibit if the accusations were unfounded? Naturally, after the presiding judge had told the jurors that he would remove from the exhibit all improper parts, they understood that they should consider the parts he submitted to them. SeeBates v. Preble, 151 U.S. 149, 14 S. Ct. 277, 38 L. Ed. 106.
Every court which has spoken upon the subject has held that the rule which excludes evidence that the defendant committed another crime, unconnected with the one mentioned in the indictment, likewise excludes evidence accusing the defendant of another crime or showing his intention or willingness to commit one. InPeople v. Argentos, 156 Cal. 720, 106 P. 65, the court said:
"The principle contended for by the appellant, would however, apply even to proof of an accusation of crime as well as proof of its actual commission, because the injury to an accused lies in the fact that proof of either actual commission, or accusation *Page 646 of another crime, is calculated to prejudice the defendants in the minds of the jury."
In Fabacher v. United States, 20 F.2d 736, the Circuit Court of Appeals said:
"Another rule is that evidence that the accused had been charged with the commission of another crime is not admissible against him. Coyne v. United States (C.C.A.) 246 F. 120."
In 22 C.J.S., Criminal Law, § 682, it is said:
"The rule extends to proof of an accusation of another crime, as well as to evidence of its actual commission, to proof of a threat or intention, or of willingness, to commit another crime, and to a confession or admission by accused of the commission of another crime."
The majority indicate that the part relating to the extraneous crimes was rendered harmless by the fact that when the trial judge ordered the deletion, he said:
"I want to say to this jury that those references in that statement concerning any other offense, no matter what it was, major or minor, have no place in this case, and should not be considered by you or any one of you in making up your minds as to what verdict should be rendered. I am going to eliminate those so far as I can from this statement, either delete them or cut them out."
But after the deletion was made and the exhibit was handed to the jury, did not the jurors have the right to believe that what was left was proper for their consideration, especially in view of the fact that the trial judge permitted the district attorney to read it to them? The truth of the matter is that jurors can not lawfully disregard a document admitted in evidence. In Boyd v.United States, supra, the court, in passing upon a similar matter, held that an instruction similar *Page 647 to the one just quoted did not suffice. In State v. Saunders, supra, this court, speaking of evidence similar to that now under scrutiny, said:
"The judge might demurely and dignifiedly tell them that they must disregard the evidence * * *; but what good would that do?"
Common observation tells anyone that the above instruction did not suffice. In view of the fact that the material was handed to the jury and was read to them, with the approval of the presiding judge, every juror must have inferred that the instruction above quoted related only to the part actually deleted.
I again quote from Exhibit L:
"Q. Did you ever threaten her?
"A. What do you mean?
"Q. In other words, did you ever have a knife against her throat?"A. No. One time I knocked her out. She stabbed me with an ice pick, and I knocked her out."
Quoting further from the questioning, we have:
"Q. You didn't hurt her?
"A. No.
"Q. Did you have a desire to kill her?
"A. I didn't have none too much to drink that night."Q. Whenever you have too much to drink you have a desire to kill, is that right?
"A. I guess so because my wife told me a month ago, first and last she expected me to kill somebody.
"Q. Why did she tell you that?
"A. I didn't try to find out; but I said, `Maybe it will be you.'"
The above are only samples of the questioning to which he was subjected about a girl whom he termed a "mere schoolgirl", about a fight he had with Jessie Wilson and about his attitude toward others. The *Page 648 questioning prompted him to say something about "a lot of killings" in Los Angeles, and, in response to the officers' questions, he told about some fallen victims he saw in alleys. He was asked about other matters that likewise had no relationship to the present charge against him. Very little of that matter pertained to actual misdeeds of the defendant and some of it consisted of what he, under the spur of his questioners' prompting, thought he would do if intoxicated. Some of it, as is evident from the parts above quoted, consisted of accusatory questions. The first impression one receives from reading this extensive material is that the defendant was a killer and that he had a bad criminal record. Upon careful examination, however, it is seen that the impression is erroneous. But even after the truth is perceived, the accusatory questions and their damning effect remain. The damaging effect of false aspersions against a man under indictment is never fully erased. The mind can readily picture the effective use which the prosecutor's tongue made of these erroneously admitted pages. The defendant was undoubtedly branded as a felon whose life was worthless.
Particularly is evidence showing that the defendant committed other crimes deemed prejudicial where the jury fixed the penalty and may have been influenced by the inadmissible evidence.
In People v. Lane, 300 Ill. 422, 133 N.E. 267, the defendant had been convicted of murder, and in his trial the prosecution was permitted to introduce evidence showing that he had committed other crimes. I now quote from the opinion:
"It is argued that the evidence amply sustained the verdict, and that there is no question of the *Page 649 defendant's guilt, but this argument is of no weight in this case, in which the jury have not only the determination of the guilt or innocence of the defendant, but also a wide discretion in fixing the punishment to be inflicted. The defendant had a right not only that his guilt or innocence should be determined without the introduction of irrelevant evidence of other crimes which it could be shown he had committed, but also to have his punishment, if he were found guilty, fixed with reference only to the circumstances of the crime of which he was convicted, and not upon the consideration, also, of other serious and inexcusable crimes which he had confessed. As was stated in the case of Farris v. People, supra, it is impossible for us to know what the jury would have done, and much less our province to say what they should have done, in the absence of this incompetent evidence. Its necessary effect was to close the minds of the jury to any consideration of mercy or leniency, it introduced an element into the case which ought not to have been permitted, and it was prejudicial to the plaintiff in error."
In People v. Heffernan, 312 Ill. 66, 143 N.E. 411, the defendants had been convicted of murder. In reversing their conviction and in refusing to hold that inadmissible testimony was nonprejudicial, the court said:
"The jury in every instance, not only passes upon the question of the guilt of a defendant charged with murder, but are the sole judges of the turpitude of the crime and the proper punishment therefor within the above limits. The defendant is therefore entitled to all material evidence that may tend to mitigate the crime and lessen his punishment. It is also his legal right to have the court exclude all evidence that has no material bearing in his case and which may have the effect of causing the jury to make his punishment greater than they otherwise would if the evidence were limited to the legal and competent evidence in the case. The defendants *Page 650 in this case were practically tried, not only for the crime of murder as charged in the indictment, but also for the other five robberies admitted in evidence, proof of which was not competent under any legal theory of the case. It is therefore not possible for this court to say that they were not greatly prejudiced by the admission of the evidence aforesaid. We have positively held that a verdict finding a defendant guilty of murder and fixing his punishment at death cannot be sustained, even though there is competent evidence in the record to support it, where incompetent evidence has been admitted which shows the commission of other crimes by the defendant and that have a tendency to influence the jury in fixing the degree of punishment."
In People v. Meisner, 311 Ill. 40, 142 N.E. 482, the defendants had been convicted of murder. The prosecution made the same claim that the majority in the present case have sustained; that is, that the evidence conclusively established the appellants' guilt. In rejecting that claim, the court said:
"Even if it could be said that so far as Meisner is concerned the evidence that he was guilty of murder was so complete that without regard to the incompetent evidence there could have been no other verdict than guilty, it cannot be said that the evidence was not prejudicial to him. The jury had the right to fix the penalty, and they did fix it at the extreme limit authorized by law. Nobody can know what the jury would have done if they had fixed the penalty on the evidence of this crime alone. It is not for us to say what they ought to have done. The defendant had the right to have his case tried on competent evidence applicable to the crime for which he was tried and to have the penalty fixed with reference to that crime, alone, without having all his evil deeds submitted to the *Page 651 consideration of the jury in fixing the penalty for this one crime."
From Hurst v. State, 86 Tex.Cr. 375, 217 S.W. 156, I quote:
"The jury gave appellant eight years for murder. The proposition here may be again stated, that where evidence of an illegal character may have entered into the verdict it will be error if it led to a conviction, when without the error the conviction may not have been obtained, or, conceding the guilt of the accused, that it led to a higher punishment than may have been given but for the error. This character of testimony was not admissible, and the jury did decide against him on his self-defense proposition, and not only failed to give him manslaughter but give him three years in excess for murder."
From Long v. State, 98 Tex.Cr. 85, 263 S.W. 1058, I quote:
"Under these conditions, the receipt of the improper testimony upon an important phase of the case cannot be regarded as harmless error, in view of the verdict assessing the extreme punishment for the offense."
The following taken from United States v. Dressler,112 Fed. 2d 972, it will be observed, presents many parallels to the facts before us:
"The defendant, both in his confession and in his testimony before the jury, described several offenses committed by him during the course of his flight from prison and up to the time of the death of Hamilton. But the fact that there is before a jury legitimate evidence of the commission of offenses by the defendant other than the one for which he is on trial, ordinarily, would increase the chance of prejudice to the cause of the defendant from permitting illegitimate evidence of still other *Page 652 crimes to go to the jury. Furthermore, reviewing courts frequently have emphasized the duty of trial courts to exercise special caution to keep from the minds of jurors extraneous influences during the trial of a defendant who is charged with a crime which is particularly shocking. It was such situations that drew from the Supreme Court the warning in Boyd v. United States, supra, that proof of other offenses only tended to prejudice a defendant with the jurors, `to draw their minds away from the real issue, and to produce the impression that they were wretches whose lives were of no value to the community'; * * * The further statement of the Supreme Court in the Boyd case is especially applicable to the situation in the present case: `However depraved in character, and however full of crime their past lives may have been, the defendants were entitled to be tried upon competent evidence, and only for the offense charged.'"On the basis of the record before us, it is impossible to say that the jury was not substantially influenced by the information which was improperly before it in arriving at its conclusion to recommend the death penalty."
Many other authorities to like effect could readily be cited. I shall quote from only one more. In People v. Paisley, 288 Ill. 310, 123 N.E. 573, the court spoke as follows:
"It is repeatedly urged in the brief and argument of the state that the defendants' guilt is so clearly established that they are not entitled to a new trial, even if it be conceded that all the errors assigned are well founded. This assertion must come from a misconception of the law of this case, wherein the jury are judges, not only of the question of guilt or innocence, but of the amount and character of punishment that should be imposed. The defendants in this case have been given the greatest penalty in the way of imprisonment that is fixed *Page 653 by the statute, when it was entirely a discretionary matter with the jury as to whether or not imprisonment should be imposed as part of the penalty. No fair-minded man can say, it seems to us, that the errors in this record are not such as to demand a reversal of the judgment."
A few recent decisions are Solsona v. State, 140 Tex.Cr. 305,144 S.W.2d 270; People v. Moskowitz, 38 N.Y.S.2d 189;Wright v. State, 141 Tex.Cr. 265, 148 S.W.2d 197; People v.Mangano, 375 Ill. 72, 30 N.E.2d 428. No decisions taking the contrary position have been found. I believe that all of the above decisions were correctly decided.
By reverting to the provision of our Constitution previously quoted, it is seen that the penalty for first degree murder is not necessarily death. The penalty is determined by the jury and may be life imprisonment or capital punishment. By reverting to the foregoing authorities, it is seen that the trial judge must not permit the state to influence the jury in favor of capital punishment through receipt in evidence of other criminal charges against the defendant, or evidence tending to show that the defendant is possibly a miscreant whose life is not worth much. The above authorities, as well as common experience, render it clear that the parts of Exhibit L which recited the questioning about other crimes prejudiced the defendant upon the issue concerning his penalty. Since evidence of that kind in all of the foregoing cases called for a reversal, it no less requires one in this case. And since in future cases this court will not tolerate evidence of that kind, we ought not to condone it in this case. Although first degree murder in most instances is an atrocious crime, capital punishment *Page 654 is not the universal penalty. No one can say that the jury would have imposed the death penalty if Exhibit L, with its accusations of extraneous crimes, had not been sent to the juryroom.
Not only am I satisfied that the defendant was prejudiced by the manner in which the issue of life imprisonment or execution was submitted to the jury, but I am also convinced that the rulings during the trial prejudiced him upon the issue of whether he was guilty or innocent.
The facts showing the defendant's guilt, apart from the purported confessions, consist of evidence indicating nothing more than (1) the defendant was aware of Mrs. James' presence in the train; (2) the defendant was in car D shortly before the homicide occurred; (3) the murderer, after inflicting the mortal wound, fled in the direction of the diner; and (4) when the defendant was seen in the kitchen of the diner a few moments after the homicide he was perspiring. Those facts, of course, could not warrant the defendant's conviction. Thus, the state was compelled to lean heavily upon the purported confessions. It is clear that the defendant was properly in car D at the time he was seen there, for all of the dining car crew were instructed to use the lavatory in car D. He was properly in the kitchen when he was encountered there shortly after the murder because, as second cook, it was his duty to be in the kitchen at that hour.
Exhibits K and L were nothing but the memoranda of the two stenographers who wrote them: State v. Brake, 99 Or. 310,195 P. 583; State v. McPherson, 70 Or. 371, 141 P. 1018; and Wigmore on Evidence, 3d ed., § 1669. *Page 655
Exhibit L bore this heading:
"This is a statement of Robert Folkes taken in the Circuit Courtroom, Dept. No. 2, Linn County Court House, Albany, Oregon, at 7:10 P.M., in the presence of Dr. Joseph Beeman, District Attorney H.L. Weinrick, Lieut. R.G. Howard of the State Police, and Kathleen K. Miller, Court Reporter."
Exhibit K also bore a heading which gave it a false official cast. The headings were not removed when the papers were sent to the jury. These two exhibits were deemed at the trial the defendant's written confessions. The instructions repeatedly referred to both documents as "statements made by the defendant." All members of this court concede that the two papers should not have been received in evidence. The majority's efforts to show that the defendant waived his objections to the exhibits by cross-examining as to them are unavailing: Wallace v. AmericanLife Ins. Co., 111 Or. 510, 225 P. 192, 227 P. 465.
The intimations of the majority that the substance of Exhibits K and L was proper evidence and that it was duplicated by testimony actually given by the witnesses, in my opinion, can not be substantiated. The majority after making those statements conclude that the defendant's objections pertained, not to the facts which Exhibits K and L placed before the jury, but only to the manner in which the evidence got before that body. In the first place, the recitals of Exhibit L, which set forth the questioning to which the defendant was subjected about extraneous crimes, were, in all events, inadmissible evidence. Then, too, Exhibit L contains several pages of material which no witness mentioned and which the majority leave unmentioned. Thus, it is seen that the only information which the *Page 656 jury received about the material set forth upon those pages came from the inadmissible exhibits, not from any witness.
Based upon § 2-1001, subd. 4, O.C.L.A., defendant's counsel requested the trial judge to instruct the jury that the defendant's oral admissions should be viewed by the jurors with caution. The instruction was not given; nor was any equivalent of it given. The request was proper in view of the following facts: (1) The state, in its efforts to prove the defendant's guilt, was compelled to rely almost entirely upon the purported confessions which, of course, are admissions within the purview of subd. 4 of § 2-1001; (2) the witnesses gave varying accounts of what the defendant said; either (a) he failed to express what was in his mind or (b) they failed to understand him or (c) they failed to repeat correctly, as witnesses, what he said; and (3) there is reason to believe that the defendant was intoxicated when he made the first of the alleged confessions. In sustaining the refusal to give the requested instruction, the majority explain that the error was harmless because "stenographers took down in shorthand a verbatim report of questions and answers in the case at bar. * * * The accuracy of their work is in no way challenged. Their credibility is in no way impeached." And, referring to the testimony of the police officers, which in some particulars does not harmonize with the transcribed stenographic notes, the majority say: "The memory of the officers could not be as detailed as the verbatim report of the stenographers." All of those words refer to Exhibits K and L, which the majority hold were erroneously admitted in evidence. Thus, by the words just quoted the majority deem the erroneously admitted exhibits *Page 657 highly reliable sources of the truth. The inadmissible exhibits have, indeed, achieved for themselves a superior caste and, in the estimation of the majority, are the Brahmin of the case. Clearly, the error of refusing to give a valid requested instruction can not be rendered harmless through the erroneous receipt of inadmissible evidence. The requested instruction should have been given.
I am satisfied that errors, prejudicial to the defendant, were committed in the three following particulars: (1) The purported written confessions were nothing more than the memoranda of the stenographers and should not have been received in evidence; (2) the purported criminal record of the defendant certainly should have been excluded from the jury's eyes and ears; and (3) the jury should have been charged that the purported oral admissions of the defendant should be viewed with caution.
The result of those errors would be a reversal of the attacked judgment were it not for a proposition to which the majority resort, and which I will now consider. It was not advanced by the state. The majority claim that all of the above errors were harmless and nonprejudicial. No contention of that kind has been made by the state. Since the attorneys for the state, who are the authors of the state's brief, were both present at the trial and familiar with its atmosphere, they are a safer index to the character of the errors, harmless or otherwise, than one who has no knowledge of the case except that acquired from the cold record.
The majority, in their effort to show that the errors were harmless, cite State v. Foulds, 127 N.J.L. 336, 23 A.2d 895;State v. Lustberg, 11 N.J. Misc. 51, *Page 658 164 A. 703; and State v. Donato, 106 N.J.L. 397, 148 A. 776. None of those decisions supports the majority. In the Foulds case the confession bore the defendant's signature, as he himself conceded. He challenged its admissibility on the sole ground that he confessed before his victim died. In the Lustberg case, defendants' counsel expressly conceded the accuracy of the statements contained in the unsigned confession. In the Donato case the transcribed stenographic notes were shown to the defendant as soon as they had been run off on a typewriter. He offered no objection to them, but, according to the decision, did not wish to sign "`until he sees his counsel' or `on the advice of counsel.'" It is evident that those cases afford the majority no support. None of them deals with the effect of error. In all of them the court found no error.
After the majority make the above citations they say:
"Where guilt is conclusively proved by competent evidence, and no other rational conclusion could be reached, conviction should not be set aside because of unsubstantial errors."
That statement is followed with citations to several decisions. One of them was a civil action for money had and received amounting to $591.50. In another the defendant was tried for murder, but was found guilty only of manslaughter. The error of which he complained affected the charge mentioned in the indictment but not the crime of which he was actually found guilty. In another of the cases cited, the accused, who was found guilty of procuring an abortion, could point to no error except a ruling which was later cured by the reception of proper evidence. In another the penalty was only six months imprisonment *Page 659 in a jail. In another the judgment of conviction was reversed. In still another the error was so slight that the decision does not describe it. In one of the cases the court was much impressed with a feature wholly absent from this case; that is, the presence of reliable, competent eye-witness evidence. In the present case the three eye witnesses who saw the murderer leave the scene of the crime could not identify the defendant as that person. Nothing is gained by comparing the slip-ups in minor cases with the irregularities in a case where the life of a human being is at stake.
In my opinion, none of those decisions shows that the above errors were harmless or indicates that procedure of the kind which was pursued in this case ought to be deemed nonprejudicial. It was Bacon who said, "Set it down to thyself, as well to create good precedents, as to follow them." It is my opinion that the majority are not following the precedents, and I fear the effect of the one which they are creating.
I believe that the errors aforementioned did not fail to exert an influence adverse to the defendant upon the issue of his guilt or innocence. To believe otherwise would be to go contrary to the uniform course of human nature. The statement made by the majority in various forms that the effect produced by Exhibits K and L was no different than if their substance had been given orally by witnesses ignores a phenomenon perceived generally by attorneys — the power of print. More than two and one-half centuries ago John Ray, in compiling English proverbs, found this one: "If it is in print it must be true." A century prior to that a French satirist wrote: "The thing is written. It is true." Exhibits K and L were typewritten. Both bore imposing headings which gave them an official appearance; *Page 660 both went to the juryroom. The very fact that the purported confessions were placed in that form possibly made the mind of some juror conclude "it must be true." To say that the documents were not more effective than the spoken word is to ignore the fact that what is written goes to the juryroom where it can be read and reread. I repeat, that in my opinion, the errors were prejudicial.
The majority say that the evidence against the defendant is so strong that no conclusion can be drawn from it except that the defendant is guilty. In determining whether the defendant is clearly guilty, a member of this court must surely ignore the inadmissible evidence; that is, Exhibits K and L. Then, too, he must not take into account the fact that the jury found in favor of the state; for we do not know what the jury would have done if the inadmissible evidence had been excluded. Finally, a judge of this court — as distinguished from a juror in the circuit court — in passing upon the guilt of the defendant can not take into consideration contradicted evidence nor testimony which was given by a witness whose veracity is challenged by substantial evidence. The reason for that is that if a judge took into consideration evidence which is not manifestly correct and truthful, he would be engaged in the jury function of weighing evidence, passing upon facts and determining credibility. Our Constitution says:
"In all criminal cases whatever, the jury shall have the right to determine the law and the facts, under the direction of the court as to the law * * *."
Art. I, Sec. 16. Of course, where error has been committed no court ought to refrain from ordering a reversal, carrying with it a right to retrial before a *Page 661 jury, unless the evidence produced by the state is so strong that it possesses an unusually high degree of cogency.
As already indicated, the only evidence of the defendant's guilt consists of the purported confessions. The only persons present when the defendant is said to have confessed were Miss Lyman, Captain Rasmussen and Lieutenant Tetrick, as to the Los Angeles confessions, and Miss Miller, the district attorney, Lieutenant Howard and Dr. Beeman as to the Albany confession. I believe that the majority agree that Miss Lyman and Miss Miller made no effort to indicate what the defendant said in their presence. Hence, one can gain no inkling as to the purported confessions by reading their testimony. The district attorney did not become a witness. Dr. Beeman disclosed very little of what the defendant said in his presence concerning the death of Mrs. James. His brief references to the defendant's statements render it impossible to know whether the defendant admitted the commission of a crime. Those who are left are Captain Rasmussen and Lieutenants Tetrick and Howard. There are circumstances which, in my opinion, call into question the credibility of Captain Rasmussen and Lieutenant Tetrick. The majority concede that the testimony of those men, in one particular at least, was contradicted by witnesses produced by the defendant. I do not believe that any court should base a finding of conclusive guilt upon the testimony of those two witnesses.
I shall now state briefly three or four of the circumstances which place in issue the veracity of the two witnesses just mentioned. Tetrick and Rasmussen swore that, although they purchased for the defendant *Page 662 a bottle of H H whiskey on their way to Jessie Wilson's house, the defendant had not had a drop of liquor before he made his confession. They were positive that the bottle remained unopened in the pocket of Captain Rasmussen until after the defendant had confessed. According to Captain Rasmussen, the telephone rang while the defendant was in the midst of his confession and before he had made a demonstration of the manner in which he took the life of his victim. It was the defendant's mother who was telephoning and the officers permitted the defendant to speak to her. I now quote from Tetrick's testimony:
"He talked to his mother on the phone. He said, `What you read in the papers is true, and I am the murderer.' He said, `I have just finished telling the officers about killing the girl in berth 13, and all you read in the newspapers is true.' He said, `I am the man.'"
Shortly the mother came to the home and then, according to Tetrick, the following occurred:
"He again told her he was a murderer, and he was going back to Oregon to take his medicine."
Referring to what he claimed the defendant told his mother on the telephone, Rasmussen testified:
"He said to his mother, he said, `You have been reading in the papers about the killing in Oregon;' he said, `I done it.' He said, `I am going back up there and this is probably the last time you will ever see me.'"
The mother, referring to exactly the same incident, testified thus:
"Q. Now, did you see Mr. Folkes at her room on the 26th day of January, 1943?
"A. I did. *Page 663
"Q. And what time of the day was it, Mrs. Folkes?
"A. Well, it was about 8:30.
"Q. About 8:30?
"A. Yes, sir.
"Q. Now, can you tell the jury what his condition was as to being intoxicated?
"A. Well, he was intoxicated.
"Q. Tell the jury how he acted.
"A. Well, he acted like he was highly intoxicated; he acted very funny. He was highly intoxicated, or something was wrong with him."Q. Did he at any time call you from this house you referred to as Jess' house?
"A. No, he did not; I called over there.
"Q. Did you talk with him?
"A. Yes, I did.
"Q. Tell the jury whether or not his voice was thick over the phone.
"A. It was.
"Q. Did he at any time tell you he had killed anybody or murdered anybody?
"A. He did not.
"Q. Did you go over to Jess' house to see him?
"A. I did.
"Q. What was his condition when you went in there to see him?"A. Well, he didn't look natural. He was intoxicated, and his face looked like it were bloated or something wrong with it.
"Q. Did Robert ever make the statement to you, `This may be the last time I will see you alive.'?
"A. No, he did not."
It appears to me that the above is a direct contradiction of the testimony given by the officers that the defendant, in their presence, told his mother that he was the person who killed Mrs. James. *Page 664
Bearing in mind that the officers swore that the defendant had not had any liquor whatever before he confessed, and that Captain Rasmussen kept the bottle in his pocket until the defendant had completely confessed, I now turn to Jessie Wilson's testimony. She swore:
"Q. Can you tell the jury in whose company the defendant was at the time you saw him?
"A. Detective Tetrick and Capt. Rasmussen.
"Q. Were you in bed at the time?
"A. Yes, sir.
"Q. Will you tell the jury the condition the defendant was in at the time you saw him?"A. Well, he was very intoxicated and looked very bad and looked as though he was beaten and his face was swollen.
"Q. Did you see him have any intoxicating liquor in your presence?
"A. Yes, sir.
"Q. Who gave him the intoxicating liquor?
"A. I don't know; he had it himself."
I believe that testimony is fairly susceptible to the interpretation that the defendant was intoxicated when he was brought to Jessie Wilson's home.
It will be recalled that the officers swore that the defendant, after confessing, climbed upon the bed in which Jessie Wilson was lying and using her as a demonstration victim portrayed the manner in which he brought death to Mrs. James. Upon that phase of the case, Miss Wilson testified:
"Q. Were any demonstrations conducted? I refer to any demonstrations upon your body in any manner whatsoever.
"A. No."
How it happened that the trip was made to Jessie Wilson's house also calls into question the veracity *Page 665 of the officers. They claim that Tuesday afternoon the defendant repeatedly importuned them to take him there, and that they did not yield until just before the trip was made. The state's brief says:
"At various times (T.E. 433, 472) during the latter period of the questioning he indicated to the officers that he would tell the truth and all he knew about the killing if they would take him to his home."
I now quote from page 433, Transcript of Evidence — the witness is Tetrick:
"Q. What was the reason or occasion to take him to his home?
"A. He asked us to take him out there.
"Q. When did he ask you to take him out there?
"A. He asked us several times that afternoon.
"Q. That is Tuesday afternoon?
"A. Yes."
At page 472 Tetrick described the circumstances of one of these requests. He swore that while the defendant was making it he excused from the room three officers who had been there up to that time. Exhibit 2, a transcription of the questioning to which the defendant was subjected Tuesday afternoon, contains not a word which indicates that the defendant requested to be taken to Jessie Wilson's home. It was prepared by Jean Bechtel, a stenographer in the employ of the Los Angeles Police Department and was produced at the trial by the state. The nineteen pages of that exhibit show that, although the defendant was plied with scores of questions from 5:15 p.m. of Tuesday by several officers, he constantly maintained his innocence. In all likelihood, that questioning must have continued until about 7:00 p.m., the hour when the officers swore they took the defendant to Jessie Wilson's house. The *Page 666 fact that Exhibit 2 contains nothing indicating a request upon the defendant's part to visit Jessie and have some drinks of liquor, in my opinion, can be fairly said to call into question the officers' testimony.
According to the officers, they reached Jessie Wilson's home fifteen minutes after they left the questioning room where the defendant had been maintaining his innocence. On the way there they stopped at a liquor store and purchased a bottle of liquor. A very few minutes after they entered Jessie's room the defendant, according to the officers, made the first of the purported confessions.
I shall not review other of the incidents which place in issue the credibility of the two officers. Our code, in reference to charges which should be given to the jury, says:
"A witness false in one part of his testimony is to be distrusted in others; * * *" § 2-1001, subd. 3, O.C.L.A.
It may be that Captain Rasmussen and Lieutenant Tetrick spoke the truth and that those who contradicted them perjured themselves. It may be that if I had been on the jury and had seen and heard Rasmussen and Tetrick, I would have deemed them truthful men and would have believed them. If I knew that the jurors accepted their testimony as the truth, I, too, could accept it. But I was not and am not a juror. I do not know what the reactions of the jurors were to these two men. It is possible that the jurors disbelieved them. It is my belief that this court ought not to base a finding of conclusive guilt upon their testimony, although, of course, the jury could do so. In so saying, I place no black mark opposite their records — I merely *Page 667 yield to Art. I, Sec. 16, Oregon Constitution, above quoted. We have no right to weigh the evidence, accept some of it and reject other parts. Evidence which is contradicted must be ignored by this court in a determination of the issue as to whether or not the defendant is conclusively guilty.
Although Lieutenant Howard conceded that there were "some discrepancies" between the testimony which he gave as to the Albany confession and the recitals of Exhibits K and L, we can safely brush the discrepancies aside. But after we have accepted the testimony of Lieutenant Howard as that of a truthful man, I still do not believe that this court ought to base a finding of conclusive guilt upon it alone. It is the evidence of one man only. A jury, I concede, could do so; but we, unlike a jury, do not see the witnesses or know the atmosphere of the trial. As a matter of fact, we have no means of knowing whether or not the jury accepted Lieutenant Howard's testimony. Section 2-1001, subd. 2, O.C.L.A., speaking of the instructions which shall be given to a jury, says:
"They are not bound to find in conformity with the declarations of any number of witnesses, which do not produce conviction in their minds, against a less number, or against a presumption or other evidence satisfying their minds; * * *"
Art. VII, Sec. 3, Constitution of Oregon, I am sure, does not warrant the course taken by the majority. If the previously mentioned errors were nonprejudicial, the attacked judgment ought to be affirmed; but if they were prejudicial — and I maintain that they were — the attacked judgment certainly ought to be reversed. The affirmance of a judgment fraught with reversible error is an infraction of the Fourteenth Amendment which *Page 668 prohibits the states from depriving any person "of life, liberty or property without due process of law."
If the defendant is guilty, his guilt should have been established in the way prescribed by law. He ought not to have been handicapped through placing in the scales of justice prejudicial matter which weighed heavily against him and which consisted of (1) several accusations of crime (rape, assault, threat to kill, etc.) of which he was not guilty; and (2) stenographers' memoranda which the defendant never saw, signed or approved, but which were submitted to the jury as his written confessions. He should have had the benefit, uniformly accorded all others accused of crime, of having the jury instructed that his oral admissions should be viewed with caution. If the evidence showing his guilt is as overwhelming as the majority indicate, the state will have no difficulty in proving his guilt. A judgment of death, which is infirm through grave error, ought not to be affirmed. The cause should be remanded to the circuit court for another trial.
For the above reasons, I dissent.
KELLY, J., concurs in this dissent.
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