Daily capital journal., April 21, 1911, Page PAGE THREE, Image 3

DAILY CAPITA! J0CTR5AL, SALEM, OREGON,
FRIDAT, APRIL 21, 1911
CASEDAY DIRT IIATJB OtlLESS THE
GOVERNOR C0DTE8 SENTENCE
A CELEBRATED CASE FROM
EASTERN OREGON PASSED
UPON BY SUPREME COURT
Story of a Grant County Lynching, for Which the Defendant,
Joseph Casedy, a Deputy Sheriff, Was Convicted of Con
spiring to Aid the Lynchers, Giving Up His Prisoner to the
Lynchers Without Resistance Would Make Sensational
Dime Novel Story.
OREGON' SUPREME COURT DECISIONS
Full Text Published bj Courtesy of F. A. Turner, Reporter of the
Supreme Conrt
State of Oregon v. Casedny, et ai,
Grant .County.
State of Oregon, respondent, v.
Joseph H. Caseday, jointly Indicted
with Emmet Shields, Earl . Shields,
Albert Green and Ben Hlnton, ap
pellant. Appeal from the circuit
court for Grant county. Hon. Geo.
E. Davis, Judge. Argued and sub
mitted March 23, 1911. Leedy &
Patterson, for appellant. Roy F.
Shields find A. M. Crawford, attor
ney general, for respondent. Bur
nett, J. Affirmed.
Joseph H. Caseday was Jointly In
dicted with Emmett Shields, Earl
Shields, Albert Green and Ben Hln
ton for the premeditated murder of
Oliver Synder. The better to com
prehend the situation it Is proper to
state that Canyon City, the county
seat, is located near the center of
Grant county. About 30 miles to the
northwest Is the village of Hamilton
and Monument is situated about nine
miles further in the same direction.
Some miles still farther on that
course on the evening of December
24, 1909, in an altercation in a sheep
herders' cabin, Oliver Snyder killed
Arthur Green and at once fled, se
creting himself In the woods on the
adjacent hills. Mr. Beymer, an eye
witness, notified the officers and
summoned help. The defendant
Caseday at that time was acting as
deputy sheriff and hearing of the
homicide, took with him a Justice of
the peace for the -purpose of holding
an inquest, borrowed a gun belong
ing to his co-defendant Emmett
Shields and "proceeded toward the
scene of the Wiling. Arriving at
Monument and learning that Snyder
had given himself up, the defendant
left the rifle and went on until he
met some men bringing In the body
et Arthur Green and having Snyder
under arrest. Caseday then took
charge of Snyder and returned to
ward Monument. Soon after the de
fendant started from Hamilton to
ward Monument the defendants, Em
mett Shields, Earl Shields and Albert
Green went together in a buggy to
Monument On returning to Monu
ment with the prisoner, Caseday at
once sought Albert Green and found
him in a saloon, took him out In the
rear of the building and had a pri
vate conference with him out of the
hearing of other persons. He di
rected the man with whom he had
left the rifle to return it to Emmett
Shields. Soon after, meeting Em
mett In the saloon, the latter asked
him for the cartridges belong to the
rifle. Caseday produced them and
when Emmett asked him if that was
all, the former ejaculated: "For
God's sake ain't that enough?" The
parties held a number of private con
ferences In and about the saloon in
Monument and later In the evening
about 8 o'clock Caseday started with
the prisoner to drive to Hamilton,
following two other men who took
with them the body of Green. Ar
riving In Hamilton all the parties
stayed there until between 2 and 3
o'clock the following morning. Also
in Hamilton there were frequent con
ferences In private between the de
fendant Caseday and others of the
defendants. Emmett Shields was
heard to state that they would never
get to Canyon City with Snyder. He
and the defendant Hlnton also solici
ted various persons to assist In hang
ing Snyder. There Is testimony
tending to show that although Case
day had assistance In bringing Sny
der as far as Hamilton he represent
ed to the assistant that they would
stay all night In Hamilton and go to
Canyon City the next day, but disre
garding that arrangement he took the
prisoner alone and left for Canyon
City about 3 o'clock in the morning.
Although warned of plans to lynch
Snyder and advised to take assist
ance, he curtly declined any help.
The testimony also tends to show
that his four co-defendants left Ham
ilton on horseback In advance of him
and took the road leading to Canyon
City. The defendant Hinton was con
victed on a separate trial of murder
in the second degree and testified at
the trial of Caseday, giving the de
tails of taking and killing the pris
oner about two miles out of Hamil
ton towards Canyon City. The fore
going is a statement of only some of i
the salient features of the volumin
ous testimony in the record. The
contention of the state is In substance
that the matter of lynching Snyder
was arranged among the defendants
Shields, Green and Hlnton and that
Caseday was approached on the sub
ject and consented to play the part
of taking the prisoner ostensibly un
der arrest to the place where the
other defendants, by a pretence of
force, should take him away from
the officer and lynch him. The sep
arate trial of Caseday resulted in a
verdict of guilty of murder in the
first degree and from the resultant
judgment he appealed.
Burnett, J.: The first error as
signed Is the refusal of the court to
change the place of trial. The de
fendant filed his own affidavit and
that of one of his attorneys, together
with two others, to the effect that the
killing of Snyder had been generally
discussed throughout the countp;
that several accounts of the homi
cide had been published in the local
papers and that In their opinion a
fair and impartial trial could not be
had in that county. It Is also
eharged that some of the prominent
taxpayers had employed special
counsel to aid in the prosecution.
The state filed counter affidavits, in
substance giving a contrary opinion
as to the probability of getting a fair
and Impartial Jury. The affidavits
amount to no more than the mere
opilonn of the affiants as to the state
of public feeling. On the part of the
defendant there Is no showing of any
overt act Indicating prejudice
against htm except In the employment
of special counsel. Who or how
many of the citizens of the county
participated in that employment Is
'not shown. The newspaper accounts
attached to the affidavits are devoid
of sensation calculated to Inflame the
public mind. The press accounts
were mere statements as matters of
news of the testimony given at the
trial of Hinton and other Incidents
relating to the homicide. The show
ing Is in substance equivalent to the
statement that possibly the public
may have formed- a general opinion
; of the guilt or innocence of the de
fendant from what it has heard or
read. This situation as to the ma
terial available for jurors Is analo
gous to what Is contemplated in
Section 123, L. O. U, to the effect that
such an opinion shall not of Itself be
sufficient to sustain a challenge to
a particular juror, but the court must
be satisfied from all circumstances
that the Juror cannot disregard such
opinion nnd try the Issue Impartial
ly. It is uniformly held that a
change of venue is discretionary with
the trial court The jury in this case
was empaneled after the examination
of 98 men. We cannot say that the
Judicial discretion was abused In de
nying the application to change the
place of trial. The decision of trial
courts denying motions to change
the venue on much stronger showing
than exhibited here was upheld in the
following cases: State v. Pomeroy,
30 Or. 16, 19; State v.- Savage, 36 Or.
191, 198: State v. Armstrong, 43 Or.
207, 211; State v. Smith, 47 Or. 485,
487; State v. Mlzis, 48 Or. 165, 174.
Twenty-live assignments of error
In the bill of exceptions relate to the
manner of forming the jury. At the
beginning of the trial there were
but seven jurors of the regular panel
In attendance. The names of these
were taken from the box at once and
the court directed counsel to proceedi
with their examination, to which the
defendant objected until the full
number of 12 had been drawn. The
court overruled the objection and the
seven were examined with the result
that tour of them were excused for
cause. Afterwards special venires
for 50, 40 and 25 jurors were issued
in succession, from which the re
mainder of the jury was empaneled.
As this progressed the three remain
ing jurors of the original seven were
peremptorily challenged by the state,
so that .is to them no harm was done
the defendant; he lost no challenges
on either of them.
In respect to the formation of the
jury, Section 116, L. O. L., prescribes
that "when the action Is called for
trial the clerk shall draw from the
trial Jury box of the court, one by
one, the ballots containing the names
of the jurors until the jury Is com
pleted or the ballots are exhausted.
If the ballots become exhausted be
fore the Jury is complete, the sheriff,
under the direction of the court, shall
summon from the bystanders, or the
body of the county, so many qualified
persons as may be necessary to com
plete the Jury." According to section
1005, L. O. L., the sheriff summons
persons named in the panel by giv
ing written notice to each of them
personally or by leaving the same at
his place of residence with some per
son of suitable age and discretion.
As each juror from the special ven
ires was examined and the defendant
Inquired of him by whom he was
served and to each one answering
that he wad served by some person
other than the sheriff himself in per
son the defendant objected because
of that. This, in our judgment,
amounts to a challenge to the panel,
which is forbidden by section 117,
L. O. L. The only challanges al
lowed are peremptory or for cause.
Challenges for cause are arranged
under two subdivisions: 1. General,
that the Juror is disqualified from
serving in any action; or, 2. That he
Is disqualified from serving in the
action on trial. The general causes
for challenge are: first, a conrlc
tlon for felony; second: a want of
any of the qualifications prescrlebd
by law for a Juror, and; third, un
soundness of mind or such defect In
the faculties of the mind, or organs
of the body, as renders him Incapa
ble of performing the duties of a
Juror: and the particular causes of
challenge are for actual or implied
bias. L. O. L. Sections 117-123.
These provisions of the code so par
ticularly delimit objections to Jurors
as to exclude almost every quasi Judi
cial feature from the duty of the
sheriff in summoning talesmen. The
mere act of delivering notice Is pure
ly ministerial and it might well hap
pen that the sheriff himself desig
nated the citizens of the county to be
summoned and directed his deputies
or, for that matter, any one else, to
hand the statutory notice to those
selected. There is nothing in the ob
jections of the defendant as reported
In the bill of exceptions to exclude
this hypothesis. There Is no charge
that the sheriff acted otherwise than
fairly In the discharge of his duty.
We must presume that his offlcIM
duty was regularly performed. The
end to be attained Is an impartial
Jury and this Is finally determined
by the examination of the men them
selves under the sanction of the
court at the trial of the cause. The
result is not affecetd by the question
of whether or not the sheriff in per
son or his deputy delivered the no
tice to the jurors under consideration.
The manner in which they were
served constitutes the only objection
urged by defendant to 10 of the Jur
ors participating In the verdict and
in the absence of any showing of
partiality In the action of the sheriff
there is no merit in that objection.
Except for the order in which the
court required the parties to exer
cise their peremptory challenges the
dispute about the formation of the
jury is narrowed to a consideration
of the rulings on the eligibility of
the last three Jurors examined.
With but one peremptory challenge
left the name of J. W. Allen was
drawn from the box. He testified
that he served "a year ago this
spring" on the jury in that court, but
did not know when he was dis
charged. The trial began June 20,
1910. The statute says that It is a
sufficient cause of ' challenge It a
juror has been summoned and at
tended as such at any term held
within one year prior to challenges.
L. O. L., Sec. 990, sub. 4. "A year
ago this spring" would be more than
one year prior to the beginning of
the trial and there Is not enough in
the record to raise the question on
that ground of challenge. Allen fur
ther testified that he was not ac
quainted with any of the defendants;
that he had read the account of the
killing of Snyder, had heard It dis
cussed some but not to any great ex
tent; that he sometimes took part in
the conversations and had expressed
his opinion in those conversations.
He had heard some of what purport
ed to be the facts developed in the
trial of Hlnton and from what he had
heard he had formed and expressed
a fixed opinion as to the guilt of the
defendant Caseday at the present
time which It would require sworn
testimony to remove. He stated,
however, substantially ' that he could
lay aside his estimate of the case and
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try it fairly and Impartially; ' would
not allow his previous conceptions to
influence him If taken as a Juror;
that bis opinion would' not have any
Influence whatever in making up his
verdict; that the view he had was not
formed from talking with witnesses
or jurors who had participated la the
trial of Hinton, but arose from talk
ing with people about the case and
from reading the papers. The court
overruled the defendant's challenge
for bias of this juror and afterwards
the defendant used upon him his last
peremptory challenge.
The Juror Cook was slightly ac
quainted with the defendants Caseday
and Albert Green, but not with the
defendant Shields. He had heard of
the killing of Snyder and read about
It In the local papers; had talked
some with other people about It but
had not expressed any opinion him
self. He was absent in Portland dur
ing the trial of Hlnton, had not
formed an opinion as to the guilt or
Innocence of Caseday and stated that
he would not take Into consideration
what he had heard or read of the evi
dence In the trial against Hlnton, but
would go by what was produced in
the present trial; that he would not
consider the fact that Hinton had
been convicted unless the evidence
showed a connection between Hlnton
and Caseday, In which event he would
give some consideration to the con
viction of Hlnton, but on examina
tion by the court .he answered that
he would surely go by the directions
of the court not to consider the fact
that Hinton was convicted.
Bert Howard was not acquainted
with any of the defendants; had
heard of the killing of Oliver Snyder,
had heard the name of the defendant
used in connection with it only as a
deputy sheriff at the time; had read
the county paper and had participat
ed in the discussion of the reports but
had not taken enough interest in the
matter to inform himself as to the
facts for his own satisfaction and
had not expressed any opinion aa to
the guilt or Innocence of Caseday.
He was present In Canyon City about
15 minutes while some one of coun
sel was arguing the case of Hlnton
to the Jury, but who it was he did
not remember.
The court overruled the chal
lenges for cause mad by the defen
dant against the Jurors Cook and
Howard and permitted them to par
ticipate In the trial of Caseday. "A'
challenge for actual bias may be
taken for the cause mentioned In the
second subdivision of section 121;
but on the trial of such challenge,
although It should appear that the
Juror challenged has formed or ex
pressed an opinion upon the merits
of the cause from what he may have
heard or read, such opinion shalUnot
of Itself be sufficient to sustain the
challenge, but the court must be sat
isfied, from all the circumstances,
that the Juror cannot disregard such
opinion and try the Issue impartial
ly." It. O. L. Sec. 123. The defense,
to sustain ttjese ' challenges,' relies
upon the case of State v. Miller, 46
Or. 485. In that case some of the
talesmen testified that they were in
court at the former trial when the
widow of the decedent gave her testi
mony; that they had talked to a good
many witnesses who gave testimony
at the former trial and also to some
of the Jurors who returned a verdict
of guilty therein; that they detailed
as nearly aB they could the facta In
volved and having confidence in
what they said, the Jurors had formed
(Continued on Page B.I
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Tomorrow will be a Lucky Day for Some One.
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A pair of the Best High Top Men's
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To the first 50 Ladies, Men, Boys and Girls who enter the Oregon Shoe Co.'s store on Saturday, April 22, will be presented a yellow envelope containing a
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