State v. Morris

Mr. Justice Bean

delivered the opinion of the court.

1. The defendant Morris demurred to the indictment upon the ground that it did not comply with the requirements of Chapter 2, Title XVIII, L. O. L., and assigns the overruling of the demurrer as error. Counsel for defendant argue that the indictment does not directly aver the larceny, but merely alleges a conclusion. Section 1894, L. 0. L., provides that if any person shall, purposely and maliciously, but without deliberation and premeditation, or in the commission or attempt to commit any felony, other than rape, arson, robbery, or burglary, kill another, such person shall be deemed guilty of murder in the second degree. The form of an indictment in such a case is prescribed by No. 4, p. 1010, L. O. L., in connection with No. 12, p. 1012. The indictment complies substantially with the forms prescribed by the statute: State v. Hosmer, 72 Or. 57 (142 Pac. 581). The acts constituting the crime are set forth clearly and distinctly, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended thereby, and is sufficient: Sections 1437, 1438, 1439, L. O. L.; State v. Brown, 7 Or. 199; State v. Dilley, 15 Or. 73 (13 Pac. 648); State v. Childers, 32 Or. 122 (49 Pac. 801); State v. McAllister, 67 Or. 480 (136 Pac. 354). The criticism is that the indictment does not’ directly allege that the defendants “took, stole and carried away,” etc. The pleading plainly avers that the killing was done while the defendants were feloniously “taking, stealing and carrying away in a dwelling house” certain described property. State v. Brown, supra, is decisive upon this point.

2. After each of the regular panel of jurors in attendance, except Venireman Groff, had been examined and excused, and before any juror had been accepted, and after Mr. Goff had stated upon his voir dire that he was a juror in the previous trial of Martin Anchoberry, the following question was addressed to him by the district attorney: “Who was the juror who wanted to convict both defendants on the Anchoberry case?” To this remark exception was taken by defendant’s counsel. Upon objection by defendant the court reminded counsel that such conduct was entirely improper and expressed a hope that it would not occur again. The juror was excused and as there was no other juror in the jury-box or shown to be within hearing of the remark we cannot see how the rights of defendant were in any way prejudiced. Thereafter when any juror was called he could be examined as to whether he had heard anything about the occurrence.

3. After a special venire had been summoned upon the examination of Venireman Smith as to his qualifications as a juror he stated in effect that from what he had heard he had an impression that a crime had been committed; that the opinion did not go to the guilt or innocence of the defendant Morris. To the question: “And you think you have reasonable grounds for supposing that a crime has been committed?” he answered: “ Tes, I think I have. ’ ’ Thereupon the district attorney stated: “I think any reasonable man would have that impression.” To this remark of the district attorney exception was taken and error is assigned thereto. Upon the juror stating that he could and would, if accepted as a juror, lay aside the opinion that a crime had been committed and try the case solely upon the evidence, counsel for defendant withdrew their .challenge of the juror and he was accepted. Defendant did not request any ruling of the court upon the matter or ask that the jury be instructed to disregard the same. The statement of the juror, in which counsel for the state by his remark unnecessarily concurred, was not after explanation made by the juror considered sufficient upon which to base a challenge. The mere exception to the remark of counsel without obtaining or attempting to obtain a ruling thereon by the trial court is not of sufficient materiality to be considered upon appeal: State v. Lee Ping Bow, 10 Or. 27; State v. Anderson, 10 Or. 456; State v. Abrams, 11 Or. 169 (8 Pac. 327); State v. Drake, 11 Or. 396 (4 Pac. 1204); State v. Hatcher, 29 Or. 309 (44 Pac. 584).

• We pass next to the main question in this case. Assignments of error Nos. 5 to 8 relate to the reception in evidence over the objection and exception of defendant’s counsel of a written confession of defendant and admissions made by him on the ground that the same were involuntary. Before the admission of the confession testimony was taken to show whether or not the same was voluntary.

W. B. Snider, sheriff of the county, testified in part as follows:

“When Tommy arrived at the office in the company of Mr. Caldwell, the deputy, I took him into the private office on the north side of the hall in company with Mr. Binehart and myself and I told him that the Frenchman, Martin Anchoberry, had made a confession in which he implicated him in the murder of that woman, and I asked him if he wanted to see some of his folks or an attorney. If he wanted to he had better call for some of his folks or an attorney and he said'he didn’t. I told bim 'You understand if you make any statements they will be used against you, if you talk at this time.’ In fact, I urged him to talk to some of his folks before he made any statement and he didn’t wish to do it.”

Snider stated that afterwards the district attorney warned the defendant; that no threat or promise was made to Morris by anyone at the time of his examination. On cross-examination the sheriff testified:

“Q. Well, you didn’t say to Tommy, a boy you have known for years, and whom you say you didn’t at that time believe to be guilty, ‘Now, Tommy, it will be better for you to tell all you know about this matter if you know anything about it’?

“A. I may have said it, I don’t know. I would not be positive that I did, but it don’t seem to me, * *

“Q. Did you say to him anything to the effect that it would be better for him to tell you if he knew anything about what happened?

“A. No, I don’t think I told him it would be better for him because I realized that it would not and warned him to that effect.

“Q. Did you say to him at that time, ‘Tommy, you ought to tell all you know about this matter and if you do tell I will do anything I can to assist you’?

“A. I don’t know. Afterwards I did.”

E. E. Binehart, the deputy sheriff, testified to the effect that Sheriff Snider and the district attorney warned defendant that any statement he might make would be used against him; that he did not need to make any statement unless he wanted to, and that the sheriff asked him if he wanted to see his folks or wanted an attorney and he said “No”; that he remained in the office with the defendant during the noon hour while the sheriff and district attorney were out; that he talked to defendant quite a while and Morris asked him some questions about his former'’ reputation. As to the conversation regarding the homicide, Mr. Binehart said:

“As near as I can tell in the exact words, it was just about this way: After we talked a while I told him, I said you heard what Willie Arzner has. said and the Frenchman has made a complete statement and has implicated you and I said, ‘the fact of the matter is you was up there at the death of that woman the other night. ’ He nodded his head and said he was.

“Q. You say you had talked some prior to that,— what was that talk?

“A. He asked me some questions, if I knew anything about his past reputation, if he had ever done anything before.

<£Q. What did you tell him?

“A. I said I didn’t know of anything.

“Q. Was that the extent of the conversation that led up to this ?

“A. Yes. * *

“A. He said £I didn’t kill her. * # I just held her hands.’ ”

On cross-examination Mr. Einehart stated: “I did Bay this, ‘You had just as well tell me.’ ”

C. 0. Gibbs, district attorney, deposed in substance, that:

“I told the defendant, Tommy Morris, that the Frenchman, Martin Anchoberry, had made a confession and had implicated him in the killing of that woman. That we wanted to question him concerning the facts; that he need not answer any questions which were put to him unless he wanted to, but that if he did answer questions which were put to him or made any statements which incriminated himself they would be used against him. * * After I had told Tommy that any statement he might make would be used against him we then began to question him. We questioned him concerning his whereabouts on the night of the crime; what different places he had been; what he had done; who he was with, etc., and we would check up his statement to find out to our own satisfaction whether he was telling the truth or not. Then Mr. Snider would question bim a while; I think Mr. Snider and I did most of the questioning. I believe Mr. Einehart asked a question or two. This examination continued until about noon. During that time we had Willie Arzner in the room confronting the defendant Tommy Morris, and I think Johnny Frakes, hut I am not sure about Johnny Frakes.”

This witness further testified that after they returned to the office from lunch the defendant gave an outline of the things leading up to the crime and its commission, and the district attorney wrote the statement in narrative form; that this was read to the defendant who signed and swore to it. On cross-examination he stated that it was the custom of his office to examine a defendant before the latter consulted an attorney.

Tommy Morris, defendant, testified that Einehart—

“told me to tell the truth, it would be better for me and he would do all he could for me”; that Sheriff Snider said “he knew I was into it for the Frenchman said I was and it would be better for me to own up to it. * * He told me to tell the truth and they would do all they could for me. * * I don’t know as he used them words but that is what I took it for.”

Morris stated that he was in the sheriff’s private office ten or fifteen minutes.

The foregoing is in substance a fair portrayal of the manner in which the confession was obtained.

4. It is elementary that a confession to be admissible against one charged with crime must be shown by the prosecution to be voluntary; that is, that it has not been induced by hope or fear: Section 1537, L. O. L.; Underhill, Crim. Evid. (2 ed.), § 126; State v. Wintzingerode, 9 Or. 153; State v. Spanos, 66 Or. 118 (134 Pac. 6); State v. Garrison, 59 Or. 440 (117 Pac. 657).

5, 6. The testimony shows that before the examination of Morris was begun he was fully informed of the nature of the charge pending against him; that he was advised to consult his people or an attorney before making any statement, and was warned before he made any statement at all and again after he had admitted Ms guilt, that any incriminating statement he might make would he used against him: See State v. Inman, 70 Kan. 894 (79 Pac. 162). The examination throughout was conducted in a quiet and orderly manner, and nothing was said or done which could have raised either fear or hope in the mind of the defendant. The only statement which could possibly have raised any hope in the defendant was that made to him by Sheriff Snider some hours after the examination was over to the effect that he would do what he could for him, but it was impossible for this remark to have induced the confession as it was made long after defendant confessed. The rule is well settled that the determination of the court on a criminal trial that a confession of defendant was obtained from him without the influence of hope or fear exercised by a third person, will not be disturbed on review unless there is clear and manifest error: State v. Rogoway, 45 Or. 601, 607 (78 Pac. 987, 81 Pac. 234, 2 Ann. Cas. 431); State v. Blodgett, 50 Or. 329 (92 Pac. 820); State v. Spanos, 66 Or. 118 (134 Pac. 6). The testimony of Morris conflicts with that of the officers. This is to be expected in the trial of a criminal action where a defendant repudiates his confession. The trial court found that the confession was voluntary, and after reading all the evidence touching upon the matter we believe there was no error committed in admitting the confession.

7. The most favorable statement for the defendant that can be made is that Morris’ confession was made in answer to questions assuming his guilt; but this does not render it inadmissible. The rule is settled that a confession made in answer to questions which assume the guilt of the accused is not on that account involuntary, when the same is made to an officer after notice to the accused that any statement that he may make will be used against him in the trial of the case, if one should develop, and that he is not required to make any statement unless he desires to do so, and there are no accompanying circumstances shown, calculated to produce fear or hope: State v. Blodgett, 50 Or., at page 334 (92 Pac. 820); Wharton, Crim. Evid. (10 ed.), §§ 662, 663; 12 Cyc. 468; 18 L. R. A. (N. S.) 768, 794, notes; State v. Robinson, 117 Mo. 649, 650 (23 S. W. 1066); People v. Kennedy, 159 N. Y. 346 (54 N. E. 51, 70 Am. St. Rep. 557).

8. The warnings given to the defendant by the sheriff and district attorney before he was questioned in regard to what he knew about the commission of the crime were sufficient to inform him that anything he said would be used against him; and the information that he had a right to refrain from making any statement overcomes any possible inference of duress that might otherwise be drawn from the form or manner of the interrogatories that were propounded to him. No threat or promise appears to have been made to the defendant of such a nature that he would be likely to tell an untruth by magnifying the part he took in the commission of the crime or in stating facts prejudicial to himself through fear or hope of any profit. After the sheriff had cautioned the prisoner in the presence of Einehart, the deputy, before he made any admission, it was not necessary for the deputy to make a similar statement to the accused.

9. The confession was reduced to narrative form at the defendant’s dictation and was read over and signed by him. It is not inadmissible because it fails to be a verbatim statement of his. It is sufficient that it contains what was said in substance by the defendant, the recital of his exact words being unnecessary. The rule is settled that a confession taken down by someone else and read to and signed by the accused is as much bis written declaration as one entirely prepared by bis own hand would be; and this is true although his exact language is not reduced to writing. By signing it and adopting its language, he makes it his own: State v. Berberick, 38 Mont. 423 (100 Pac. 209, 16 Ann. Cas. 1077); People v. Giro, 197 N. Y. 152 (90 N. E. 432). The ruling of the trial court that the confession of the defendant was voluntary is approved. We believe this disposes of the pivotal question in the case.

10, 11. Before the confession of Morris was introduced in evidence Dr. E. H. Smith was called by the state and qualified as a medical expert. He testified to the purport that about thirty minutes after the homicide he was called and made an examination of the body of the deceased and that there were finger marks on the throat, three on the left side and one on the right; that some of the small blood vessels inside the .throat were ruptured and there was a slight hemorrhage from the inside and also under the skin; that from the examination it was his opinion that the woman came to- her death from strangulation; and that it was not self-inflicted. Over the objection and exception of defendant’s counsel the witness was allowed to state further that “my opinion was it was not accidental.” This is assigned as prejudicial error. The confession and statements of the defendant Morris showed plainly that upon the proposal of the defendant Anchoberry it was planned by the two to go to the place of the victim and “choke her down” and take the money which she had in the house; that pursuant to the plot they did so, and that Morris held the decedent’s hands during a part of the time that Anchoberry was choking her. As we have stated, the case turns upon the admissibility of Morris’ confession and admissions to which we have referred. The jury was just as competent as the physician to say from the facts and circumstances delineated by the witnesses, whether or not the strangulation was caused accidentally: State v. Jennings, 48 Or. 483 (87 Pac. 524, 89 Pac. 421); Pacific Ry. & Nav. Co. v. Elmore Packing Co., 60 Or. 534 (120 Pac. 389, Ann. Cas. 1914A, 371); State v. Barrett, 33 Or. 194, 196 (54 Pac. 807); Knoll v. State, 55 Wis. 249 (12 N. W. 369, 42 Am. Rep. 704); Underhill, Crim. Ev., § 312, p. 373. When the matter under consideration before a jury is of such a character that anyone of ordinary intelligence, without any peculiar habits or course of study, is able to form a correct opinion of the same, expert testimony as to such matter is inadmissible; but when, upon the whole case, it is manifest that if such testimony had not been introduced, the jury could not have reached a different conclusion from that expressed in the opinions of the experts, the admission of such evidence will be regarded as a harmless error: Fisher v. Oregon S. L. etc. Ry. Co., 22 Or. 533 (30 Pac. 425, 16 L. R. A. 519). The statement of the defendant Morris, which we think was properly admitted in evidence, was practically a plea of guilty or a full admission that he was guilty of the crime, and the jury could not from the evidence, other than that of the opinion of the Doctor which was excepted to, reasonably have found that the death was caused by an accident. Therefore, it is impossible for the evidence to which exception was taken, to have changed the verdict, or in any degree to have prejudiced the rights of the defendant, and the assigned error was harmless. It would not justify a reversal of the judgment: Fisher v. Oregon Short Line etc. Ry. Co., 22 Or. 533 (30 Pac. 425, 17 Am. Neg. Cas. 227; 53 Am. & Eng. R. Cas. 539, 16 L. R. A. 519); Article VII, Section 3 of the Constitution of Oregon; Longfellow v. Huffman, 57 Or. 338, 343 (112 Pac. 8); Obenchain v. Ransome Crummey Co., 69 Or. 547 (138 Pac. 1078, 139 Pac. 920).

12. Exception was saved to an instruction that “voluntary” intoxication is not available as a defense on behalf of the defendant, for the reason that the instruction assumes that he was intoxicated and that the same was prejudicial. Section 1527, L. O. L., directs that:

“No act committed by a person while in a state of voluntary intoxication shall he deemed less criminal by reason of his having been.in such condition; but whenever the actual existence of any particular motive, purpose, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the defendant was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act. ’ ’

The only evidence before the jury of any intoxication upon the part of the defendant is that contained in his confession which recites that within an hour or so immediately before the killing he took several drinks of whiskey. The degree to which he was intoxicated does not clearly appear; hut from the number of drinks taken he must have been intoxicated to some degree. The evidence, however, tended to show that it was entirely voluntary. It was sufficient to warrant the instruction complained of: 11 Enc. of Plead. & Practice, 181; State v. Zorn, 22 Or. 591 (30 Pac. 317); State v. Hansen, 25 Or. 401 (35 Pac. 976, 36 Pac. 296.)

13, 14. Section 1894, L. O. L., provides that if any person shall (purposely and maliciously, hut without deliberation and premeditation) or in the commission or attempt to commit any felony other than rape, arson, robbery, or burglary, kill another, such person shall be deemed guilty of murder in the second degree. The court charged the jury by instruction No. 19, in effect, that:

“Under this indictment it is not necessary to prove expressly either a purpose to kill, or deliberate and premeditated malice,

“The indictment having alleged murder while engaged in the commission of larceny in a dwelling house, it is only required that the larceny and the killing, in the manner alleged during the larceny be proven to make out the case: * * ”

■ — and that under proof of such a case the intent to kill is implied.

By instruction 12%, in explaining to the jury that upon the prosecution for murder in the second degree alleged to have been committed during the commission of larceny in a dwelling-house, the clause “purposely and maliciously,” etc., contained in Section 1894, included above in parentheses, did not apply, the court used the words ‘ ‘ specific intent ’ ’ apparently in the sense of purpose. See Webster’s International Dictionary, for definition of the words “intent” and “purpose.” Voluntary intoxication cannot reduce a homicide to manslaughter: State v. Weaver, 35 Or. 417 (58 Pac. 109). This instruction, taken together with number 19, is not subject to misunderstanding by the jury.

15. Where a killing of a human being is done in the commission of a felony described in Section 1894, L. O. L., the ultimate purpose may be to effect the larceny or felony, and although there may be no purpose or specific intent to kill, if the killing is done in the commission of the alleged felony it will nevertheless be murder in the second degree: 21 Am. & Eng. Ency. Law (2 ed.), pp. 133, 165, and 169; State v. Brown, 7 Or. 198, 199.

16. Further exception was saved to instruction No. 19, because it fails to include the element of reasonable doubt. The instruction complained of does not constitute ground for reversal when considered in connection with five or six others which had already been given and which correctly defined reasonable doubt. The court instructed the jury as to the essential elements of the crime charged and informed them that they could not convict the defendant, unless every such element had been proved to their satisfaction beyond a reasonable doubt. The instructions should be considered as a whole and when they are substantially correct and could not have misled the jury to the prejudice of the defendant, the judgment will not be reversed because some instruction considered alone may be subject to criticism: State v. Anderson, 10 Or. 462; State v. Morey, 25 Or. 241 (35 Pac. 655, 36 Pac. 573); State v. Hansen, 25 Or. 401 (35 Pac. 976, 36 Pac. 296.); State v. Megorden, 49 Or. 259 (88 Pac. 306, 14 Ann. Cas. 130). In accordance with this rule it is apparent that no reversible error was committed.

17. It is asserted on behalf of defendant that the evidence did not show that a crime had been committed, as alleged in the indictment, for the reason that the evidence shows that the building in which the homicide occurred was a bawdy-house. Several assignments of error refer to the giving, or refusal to give, instructions with reference to the character of the house in which the homicide was committed. The evidence shows that for two months previous to the murder the woman had constantly lived, slept, and eaten her meals in the house in which she was killed. She occupied two rooms therein and it was in one of these that she was killed. A dwelling-house is a building, any part of which is usually occupied by some person lodging therein at night: Sections 2389, 2390, L. O. L.; 10 Am. & Eng. Enc. Law (2 ed.), 353, 354; 3 Words & Phrases, pp. 2288, 2294; State v. O’Neil, 21 Or. 170 (27 Pac. 1038); People v. Horrigan, 68 Mich. 491 (36 N. W. 236); State v. Warren, 33 Me. 30. That the woman may have used the house for immoral purposes does not alter the fact that it was her dwelling. The cases all hold that a building, any part of which is usually occupied by some person lodging therein at night is a dwelling-house within the meaning of the law, in regard to arson, burglary or larceny in a dwelling-house notwithstanding the building is used for other purposes. By the same reason, therefore, a house in which a woman lives and makes her home is her dwelling-house within the meaning of the statute notwithstanding she may have been guilty of immoral practices therein. The law protects the dwelling of the ungodly as well as that of the righteous.

18, 19. The court charged the jury under Section 1540, L. O. L., to the effect that a conviction cannot be had upon the testimony of an accomplice unless he be corroborated by other evidence: See section noted. In order to be sufficient to warrant a conviction such corroborating evidence must not merely show that a crime, had been committed or the circumstances of its commission, but it must be such as tends to connect the defendant with the crime charged. Counsel for defendant saved a general exception to the charge because there is no issue in the case to justify it. It was not specifically pointed out to the trial court wherein the instruction was not justified by the issues. There was no request that it be withdrawn: See Carroll v. Grande Ronde Elec. Co., 52 Or. 376 (97 Pac. 552); Kearney v. Snodgrass, 12 Or. 311 (7 Pac. 309). John Frakes according to his testimony had planned to undertake the robbery of the house in conjunction with defendant Tommy Morris and one Martin Anchoberry, but withdrew from the plan and stated to them that he would take no part in it; and the evidence tended to show that a new design with the same thing in view was carried out by Morris and Anchoberry some days after the time that Frakes was to participate. Counsel for the state conceded that it does not seem that Frakes was an accomplice in the commission of the alleged crime. The instruction complained of was favorable to the defendant. The only possible effect that such part of the charge could have upon the minds of the jury would cause them to discredit the damaging testimony given by John Frakes against the defendant. Therefore, instead of having misled the jury to the prejudice of the defendant the instruction was in his favor. The instruction was in strict conformity with Section 1540, L. O. L., and entirely in accord with the law. While the charge to the jury should be confined to the facts in the case the defendant could not have been prejudiced thereby although it was outside the issues. It being favorable to the party complaining we are convinced that the charge criticised did not mislead the jury. It is not ground for reversal: State v. Weaver, 35 Or. 415 (58 Pac. 109); State v. Selby, 73 Or. 378 (144 Pac. 657); 1 Blashfield, Inst. to Juries, § 91; 38 Cyc. 1621, 1622.

20. The defendant criticises several of the instructions because they repeated to the jury definitions of murder in the second degree. It is not contended that either of these instructions is erroneous in that they do not correctly state the law. From a reading of them it is apparent that they were all necessary to fully advise the jury of the crime charged and instruct them with reference to the law in order that they might intelligently apply the evidence which had been .adduced before them. No undue prominence appears to have1 been given to any phase of the case by these instructions and we find no error committed therein: See Gran v. Houston, 45 Neb. 813 (64 N. W. 245); Commonwealth v. Snelling, 32 Mass. (15 Pick.) 321. The charge to the jury fairly submitted the questions of fact in the case to them.

Prom a careful examination and consideration of the record in the case we find no reversible error in the trial thereof. The judgment of the lower court is therefore affirmed. Affirmed. Behearing Denied.