I concur in the affirmance of the judgment. The opinion of Mr. Justice BRAND adequately covers all the questions raised by the defendant as well as others not so raised, and I should be content merely to record my concurrence, without more, were it not for the fact that there are views expressed in the dissenting opinion of Mr. Justice ROSSMAN, which, it seems to me, call for specific discussion.
It might be well first to state what this case is about as it comes to this court.
The defendant was convicted by a jury of the crime of murder in the first degree. The jury did not exercise its privilege of recommending life imprisonment as punishment, and judgment of death automatically followed. From that judgment the defendant has appealed. The contention of his counsel, as set forth in the briefs filed in this court, is that the defendant was improperly convicted for three reasons, and three reasons only, namely, that certain confessions made by the defendant were involuntary and, therefore, that evidence of them was improperly received; that the stenographers' transcribed notes of two of such confessions were improperly admitted in evidence; and that the court erred in failing to instruct the jury that the oral admissions of a party are to be viewed with caution.
I desire to emphasize the point that these are the only questions raised by the defendant. It is not he, speaking through his counsel, who claims that he has *Page 623 been prejudiced by the admission in evidence of statements regarding other offenses found in the Albany confession. The defendant's counsel is no tyro, but a lawyer of large experience in the trial of criminal cases. If, in a case like this, he thinks these matters of so little significance that he has not even mentioned them in this court, either in his briefs or on the oral argument, I see no reason why any of us should be astute to discover, sua sponte, errors committed against the defendant where he claims none.
For this is not a case where one need have any apprehension that justice has miscarried. The judgment here is supported by the competent evidence of four unimpeached, uncontradicted witnesses that the defendant confessed in their presence that on the morning of January 23, 1943, between three-thirty and four-thirty o'clock, he entered the berth of a Southern Pacific Railway car in which Mrs. James lay asleep and murdered her by cutting her throat with a knife which he had sharpened immediately before the commission of the crime. It was murder in cold blood, so devoid of any circumstances that might appeal for mitigation to even the most merciful heart, that any other verdict than that which the jury returned would be inconceivable.
The defendant made no attempt to meet this evidence of the prosecution. Almost the sole effort on his part in the court below was to keep out the state's evidence that he had confessed. His only contention now, apart from his complaint that the court erred in failing to give the cautionary instruction, is that the evidence was improperly received. That contention, in my opinion, as it relates to the testimony of Captain Rasmussen and Lieutenant Tetrick, of the Los Angeles *Page 624 Police, concerning the confessions made by the defendant at Los Angeles, and the testimony of Lieutenant Howard and Dr. Beeman, of the Oregon State Police, concerning the confessions made by the defendant at Albany, is wholly devoid of merit. No decision of this court has been cited, nor, I venture to say, can any be found, supporting a holding that the trial judge, in view of the evidence before him, did not rule correctly in admitting the confessions as testified to by these witnesses. The dissenting opinion says nothing to the contrary, and I take it that on that point all the members of this court are in agreement. The features which distinguished this case from Ashcraft v.Tennessee, 322 U.S. 143, 64 S. Ct. 921, 88 L. Ed. 1192, are clearly developed in the opinion of Mr. Justice BRAND. The rule of McNabb v. United States, 318 U.S. 332, 63 S. Ct. 608,87 L. Ed. 819, and Anderson v. United States, 318 U.S. 350,63 S. Ct. 599, L.Ed. 829, has never been the law in this state, is not binding on us, since it is not based on constitutional grounds, and, in my opinion, ought not to be adopted, notwithstanding the deference due to decisions of our highest court. The test of the admissibility of a confession in this state is, and has always been, that it must be voluntary. This is so well known that it is not necessary to cite authorities to support it. We have never held that a confession was inadmissible in evidence simply because it was obtained by officers while they were violating their duty to take the accused before a magistrate. Adherence to such a rule would, in my opinion, place unnecessary obstacles in the way of the detection of crime and result in the acquittal of many a guilty man. This is a case in point, because, without the defendant's confessions, he would go scot free. *Page 625
But it seems to be the position of Mr. Justice ROSSMAN that, in so far as this court is concerned, Howard's testimony alone is entitled to consideration. There are said to be circumstances which "call into question the credibility of Captain Rasmussen and Lieutenant Tetrick". "Dr. Beeman", it is said, "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 any crime." And it is argued that, "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 jury, unless the evidence produced by the state is so strong that it possesses an unusually high degree of cogency."
With the last statement I am inclined to agree, and I propose to examine the criticisms of the evidence of Rasmussen and Tetrick and to show what testimony Beeman gave respecting the defendant's admissions for the purpose of determining whether there is any good reason for doubting the cogency of the proof of guilt.
It may be well to state first what the record discloses about the history of these four witnesses. Vernon Rasmussen has been an officer in the Los Angeles Police Department for over nineteen years, and for over three years has been captain of the homicide squad, with seventy-five men working under him. He holds the degree of Bachelor of Laws from the University of Southern California and is instructor in criminal law at that institution. E.A. Tetrick has been a member of the Los Angeles Police Department for sixteen years and is a lieutenant, working in the homicide *Page 626 squad. Ray G. Howard has been a member of the Oregon State Police since 1931 and is a lieutenant in that organization. A fourth witness to the confessions, whose credibility, however, is not questioned, is Joseph Beeman, who is by profession a physician and surgeon, a graduate of the University of Oregon Medical School, with post-graduate training in pathology. He was admitted to practice medicine in Oregon in 1938, is director of the Crime Laboratory Department of the Oregon State Police, and as a member of the faculty of the University of Oregon Medical School is instructor in toxology and pathology, the latter including the course in medical jurisprudence. So far as anything in the record reveals, they are all trustworthy men, and competent in their business of bringing criminals to justice. Nothing discreditable in the lives of any of them was attempted to be shown.
Among the circumstances which are said to call into question the credibility of Rasmussen and Tetrick, to the extent that this court should cast their testimony aside when it is considering the cogency of the proof of guilt, are, that they are contradicted by Jessie Wilson and by Clara Folkes, the defendant's mother, in several particulars, namely: that Jessie Wilson and Clara Folkes testified that the defendant was drunk at the former's house; that Clara Folkes denied that the defendant told her that he had killed anybody; and that Jessie Wilson denied that her body was used by the defendant in demonstrating the manner in which he had killed Mrs. James.
It is true that in her testimony the defendant's mother denied that the defendant told her he had killed anyone. But the important question for this court is whether there is any substantial reason for *Page 627 doubting that the defendant voluntarily confessed his crime in the presence of Rasmussen and Tetrick. Of this fact there is no contradiction in the record. I can find no unequivocal testimony from any source that the defendant was intoxicated in Jessie Wilson's room when he confessed. Whether the defendant became intoxicated later is immaterial. There is corroboration coming from Jessie Wilson herself that he did confess, because she testified that the officers "took down the confession".
Rasmussen and Tetrick swore that the defendant was not permitted to have a drink until after he had confessed. The defendant himself did not testify. Jessie Wilson, the only other person present, was not asked whether the defendant took a drink or became intoxicated before he confessed, and volunteered nothing upon that subject, and it is clear to my mind, from reading her testimony, that in the questions framed by counsel for defendant, that issue was evaded. The most that can be gotten out of Jessie Wilson's testimony is that at sometime during the course of the evening the defendant became intoxicated. The defendant's mother testified that he was drunk when she arrived at Jessie Wilson's house, but that was concededly after he had confessed.
In this connection it should be observed that on the morning of January 27, at a time when there is no suggestion that the defendant was drunk or that he was acting under the influence of threat or promise the following took place according to the uncontradicted testimony of Officer Tetrick:
"He (the defendant) made practically the same statement he made the night before, with the exception *Page 628 of naming that supposed man that had offered him $1000.00."
* * *
"Then Finneran and I and Folkes were there alone. The girl had stepped out of the room, and I asked him, I said, `Bob, why did you kill that girl; why did you get in the berth with her?' and he said, `Why, I saw her standing there, and she looked like my type of woman, and I just couldn't get her off my mind.'"
With reference to the claim that Jessie Wilson contradicted the officers concerning "demonstrations" on her body, the record shows that Rasmussen previously had testified that the defendant showed upon Jessie Wilson the manner in which he pulled the knife across his victim's neck, and in doing so put one leg practically on top of Miss Wilson's body while she was lying in bed and took a pencil and showed a cut across the neck. The officer, in his testimony, did not use the word "demonstrate" or "demonstrations", and Jessie Wilson's attention was not specifically called to his testimony. I think it is fair to say that it is extremely doubtful whether she understood that she was being asked about the truth of his testimony in this respect when the following question was put to her:
"Q. Were any demonstrations conducted there? I refer to any demonstrations upon your body in any manner whatever."
To this she answered "No"; and that is all there is on the subject.
It is further said, "How it happened that the trip was made to Miss Wilson's house also calls into question the veracity of the officers". The reason given for this statement is that the officers testified that *Page 629 the defendant several times asked to be taken to Jessie Wilson's house, and that Exhibit 2, which consists of the transcribed notes of a statement given by the defendant in Los Angeles on Tuesday afternoon in which he was protesting his innocence, contains no reference to such a request. The record with respect to this contention is as follows:
Lieutenant Tetrick testified that about 2:00 P.M. on January 25, 1943, he was in a room in the city hall in Los Angeles with some other officers and the defendant; that Miss Bechtel, a stenographer, was brought in and they started to take a statement from the defendant, but the defendant stopped and asked to be taken to the toilet; that he went to the toilet with the defendant, and it was there that the defendant requested that he be taken to his house so that he could talk to his wife, get a drink of whisky and have something to eat, promising that then he would tell more about the case. Captain Rasmussen testified that on the morning of January 25 and the morning of January 26, and again at about five o'clock in the afternoon of January 26, the defendant asked to be taken to his home, the last time in the following language:
"If you will take me to my home on East 25th Street and let me talk to Miss Taylor (another name used by Jessie Wilson) I will tell you exactly what happened, and I will give you the murderer."
On this last occasion, which was in Rasmussen's office, several officers being present, the defendant said that he wished to speak to Rasmussen alone. Thereupon, on Rasmussen's suggestion, the other officers left and the defendant then made the request to which the officer testified. *Page 630
Tetrick differs with Rasmussen as to the hour of the evening of January 26 when the defendant talked to Rasmussen alone. He testified that "at seven o'clock he (the defendant) kept insisting on going out there" (i.e. to Jessie Wilson's house), and that he took the defendant to Rasmussen's office and "let him talk to Captain Rasmussen alone".
Exhibit 2 was introduced in evidence by the defendant himself and contains the only evidence in the case of the time when it was taken. It recites at its beginning that it was taken at 5:15 P.M., January 26, 1943, and that the stenographer who took the notes of the defendant's statement and transcribed them was Jean Bechtel.
The foregoing review of the evidence discloses that on six separate occasions, the first being on the morning that the defendant arrived in Los Angeles, he requested of one or the other of the officers that he be taken to the home of Jessie Wilson, and that Jean Bechtel was not present on any of these occasions. The fact, therefore, that there is no mention of this request in her transcribed notes is without significance. It is a very inadequate reason, as I view it, for the attack on the officers' testimony.
It is true that, with respect to incidental and unimportant details, the officers are not in exact agreement as to everything the defendant told them. Had they been, it might have afforded reason for suspecting that they had gotten together and agreed on a story, in which case their credibility would have been affected. The defendant's story was a detailed account of his actions from early in the evening of January 22, 1943, until about 4:00 A.M. of the following morning. It would not be strange if two honest men who heard *Page 631 that story, attempting to retell it some two months later, should not be in perfect accord as to its every particular. But in respect of the defendant's unforgetable account of the murder itself, and his preparation for it, Rasmussen and Tetrick are in substantial agreement, and Howard, who heard the same story from the defendant later, is in substantial agreement with the Los Angeles officers.
As to Dr. Beeman, it is true that he was not asked to repeat the defendant's confession, made in the presence of himself and Howard, and to which Howard testified in some detail. The record, however, shows the following from Dr. Beeman's testimony:
"Q Did the defendant make any statement to you regarding his connection with the crime in issue here?
"A Yes, sir.
"Q And what was the occasion of the first statement of that kind by the defendant?
"A Lt. Howard had left the room, leaving the defendant alone with me and — no, the first statement in regard to the crime was at one time we asked him if he struck any bone on the neck of Mrs. James and he stated he had and immediately retracted that statement."
* * *
"Q What occurred at that time?
"A Lt. Howard left the room and left me alone with the defendant, and I suggested to the defendant that he might be mentally sick, and he then asked me two or three questions and briefly told me that whenever he got drunk that he heard voices and then described briefly the details of the killing of Mrs. James."
At this point it seems desirable to set forth the substance of the confession made by the defendant to *Page 632 Howard and Beeman, as testified to by the former. Howard swore that the defendant made a statement to him and Dr. Beeman before Exhibit L was taken, and he pointed out in great detail minor discrepancies between the first and second statements. His testimony covers the conduct of the defendant as related by him from the time he became intoxicated on the evening of January 22 in a hotel in Portland until he entered Mrs. James' berth and cut her throat. It includes the defendant's statements that he talked to Mrs. James at her berth; that he then went to the galley and sharpened a French knife and a boning knife; that the boning knife was the one he used in killing Mrs. James; that he set his alarm for 3:15 A.M., and, on awakening, lay in his berth "thinking about the occupant of Lower Berth 13". It goes on with an account of the defendant's movements in Car D and his encounters with Porter Hughes and Chief Petty Officer Kelso, and tells how he obtained a knife from the galley and unfastened the buttons of the curtains to Mrs. James berth, and got his overcoat and put it on "for the purpose of concealing his identity", and entered Mrs. James' berth. That is the substance of what Howard testified the defendant told him occurred before he killed Mrs. James. Then Howard, using the body of the sheriff on which to demonstrate, described in minute detail how the defendant cut his victim's throat, as the defendant, using Dr. Beeman as the subject, had demonstrated and described the crime to Beeman and Howard.
In addition to the foregoing, as pointed out in the opinion of Mr. Justice BRAND, on cross-examination Howard was asked by counsel for the defendant concerning many of the statements admitting guilt which *Page 633 are found in Exhibit L, and affirmed the fact that these statements were made by the defendant.
I do not suppose it would be argued that Beeman's testimony above quoted means that the defendant described the killing of Mrs. James by any other person than himself; and I think it not open to doubt that the "details of the killing" were the same details to which Howard swore.
If a voluntary confession be of any value as proof of guilt — and to my mind it is evidence of the highest order — then it would seem that the proof of the defendant's guilt of murder in the first degree is not only cogent but absolutely conclusive. What should be said about the case, if it depended on Howard's testimony alone, need not be discussed; four witnesses, as the foregoing review of the evidence demonstrates, testified to the confession; they were not contradicted or impeached; there is no evidence to the contrary. In addition, Jessie Wilson, the defendant's paramour, called by him as a witness, testified that in her room the officers "took down the confession." In addition, also, the confession itself is corroborated in significant particulars by the uncontradicted evidence of witnesses who were in the Pullman car when Mrs. James was murdered — not the least important of which is the testimony of three witnesses that the murderer wore a long overcoat. The defendant, it will be remembered, told the officers that before the crime he put on his overcoat in order to conceal his identity.
Our authority to examine the whole testimony and to determine therefrom whether the evidence of guilt is so conclusive that errors occurring on the trial, which otherwise might be ground for reversal, ought to be disregarded, is sustained by numerous decisions, some *Page 634 of which are cited in the opinion of Mr. Justice BRAND; and it is in the setting of a case where the only denial of guilt is by a formal plea of not guilty that we are called upon to consider the errors relied on by the defendant and to determine whether we should, on our own initiative, notice other alleged errors which the defendant has not, apparently, deemed of sufficient importance to call to our attention.
In my view it is an unwarranted construction of the opinion of the majority to say that it deems the contents of the erroneously admitted stenographers' transcripts of the defendant's confessions highly reliable sources of the truth. The question whether the defendant was prejudiced by their admission in evidence cannot be intelligently discussed or rightly determined without referring to their contents, and, when it is shown that the confession of the defendant contained in these exhibits is in substance the same confession that the two officers from Los Angeles testified to and that Lieutenant Howard and Dr. Beeman of the Oregon State Police testified to, and it is further shown that their testimony stands undenied, that Jessie Wilson did not deny that he made the confession in her room to which the officers from Los Angeles testified, but swore instead that "they (the officers) took down the confession" — then it may be concluded that the rights of the defendant were in no way substantially affected by a ruling of the court which permitted proof in the wrong manner of facts which were established in the right manner. The purpose of considering the contents of State's Exhibits K and L is to show that they contained evidence that was relevant and material; that is to say, evidence of the defendant's confessions which were otherwise established by competent *Page 635 proof and remain undisputed in the record. From that the conclusion rightly follows, in my judgment, that the error in admitting these documents was not, and could not have been, prejudicial to the defendant's interests — a conclusion which becomes the more apparent when it is considered that had the state followed the technically correct method of proof, the very evidence which we find it necessary to hold incompetent would have been properly before the jury.
As to the failure of the court to give the cautionary instruction concerning the oral admissions of a party, in addition to the reasons stated in the opinion of Mr. Justice BRAND, I think that the error was not prejudicial because no jury having regard to its oath could have come to any other rational conclusion than that the defendant, not once, but several times, confessed, with a wealth of circumstance, the plan which formed in his mind to invade Mrs. James' berth armed with a newly whetted kitchen knife, and the manner in which he carried out his purpose and murdered her.
As to the asserted error in admitting evidence of other misconduct contained in Exhibit L, it is entirely clear from the record that defendant's counsel consented at one time that these matters be read to the jury, though later he objected to them. He had seen the exhibit and informed himself of its contents, and when it was offered in evidence his only objection was that it was a mere memorandum, not that any part of it was irrelevant or immaterial. When he told the district attorney to "read it all", he did not waive the only objection that he had made; he did, however, waive the objection now asserted on his behalf. This, it may be suggested, is technical, and courts should not concern themselves with nice procedural questions where *Page 636 a man's life is at stake. I agree that ordinarily this is so; but this is a technical appeal in which it has not even been suggested to us that there is any doubt concerning the defendant's guilt. For that reason, and having in mind the atrocious character of the crime, and the conclusiveness of the proof, and the fact that the defendant has made no complaint here concerning the alleged error, I see no occasion for our noticing it.
It was the defendant's privilege to rely upon the presumption of innocence and upon the rule that no inference unfavorable to him should be drawn from his failure to take the witness stand; but when he chose to do so and to let the testimony for the state go unchallenged, I am not prepared to say that we should reverse the judgment unless we are able to see that, in view of the entire record, some erroneous ruling on the trial may have influenced the verdict. To my mind it is so clear that the errors complained of could have had no such effect, that the orderly and effective administration of criminal justice requires affirmance of the judgment.