Daily capital journal., April 21, 1911, Page PAGE FIVE, Image 5

.ill.
DAILY CAPITAL JOCRJfAL, RAIXM, OREGOX, FRIDAY, APRIL 21, 1011.
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CASEDAY MUST HANG.
(Continued from Page 3.)
a fixed opinion as to the merits of
the case which It would require
strong testimony to overthrow and
which would prevent the parties
starting on an equal race In the trial,
but that If accepted as jurors they
could lay aside such prejudice and
try the case fairly and Impartially.
This court reversed the circuit
court on this point tfith the state
ment that "as we remember the testi
mony given at the former trial by
Mrs. Curtis, who heard the fatal
shots fired that made her a widow,
we do not believe any persons could
listen to her recital of the facts with
out forming such an opinion as to
render him biased as to the merits of
the case. Nor could a person hear
the witnesses or the jurors tell the
story of the homicide, as it was un
folded in court, without forming such
an opinion as to the guilt or inno
cence of the defendant as to render
him prejudiced in the matter."
Intelligent men having any local
interest in such an occurrence as a
supposed murder will usualy form
an opinion about the merits by read
ing newspaper accounts and hearing
the average neighborhood discussion
of the subject. The administration
of Justice would become impossible
if such an opinion of itself disquali
fied a Juror. This is the reason un
derlying section 123, L. 0. L., supra.
An opinion may be satisfactory to
the man being examined as a juror,
considering the fact that hitherto he
has sustained no relation to the case
different from any other citizen of
the county. While he occupies that
standpoint only, he may require tes
timony before changing his opinion.
I'nder such circumstances his opin
ion may be In a sense fixed, because
he has had no occasion to think
otherwise. "When a talesman having
that attitude of mind Is being ex
amined the question is whether, upon
assuming , the particular relation of
juror In the case as 'distinguished
from his previous general relation
as a member of the community, he
will abandon the concomitants of the
latter and submit himself to the con
ditions and obligations of the former.
The doctrine of the statute Is that
the two relations are not necessarily
Incompatible but that to disqualify
such a Juror "the court must be sat
isfied, from all the circumstances,
that the juror cannot disregard such
opinion and try the issue impartial
ly." The examination of Allen, Cook
and Howard reveals a mental state
In them widely different from that of
the Jurors under consideration in the
of State v. Miller, supra. There
they had attended the trial and heard
the testimony, had talked in detail
with witnesses and Jurors of a for
mer trial and had In effect quite
thoroughly tried and determined the
Issue, substantially traversing the
same course to be then pursued in
the new trial. The tentative opin
ions of the Jurors here fall far short
of the standard of actual bias estab
lished in that decision. In the last
analysis, Jury service is voluntary, a
fluty owing from the people to the
government of the people. The pro
cess of the-court may bring before it
any citizen as a juror, but If he is un
Hling to serve, he can with impun
ity easily display such a state of
Special
mind as to disqualify him by any
fair standard. He is .answerable only
to hjs conscience for his dereliction
for no one can look into his mind, as
into his pocket, and ascertain its con
tents. .The lav has left to the court
the estimation of a juror's fitness.
The presiding judge sees and hears
the juror and so can far more wisely
determine his qualifications than the
appellate court can from a case made
upon paper, and unless a strong case
of abuse of discretion by the trial
court is made to appear, its decision
on such a point cannot be disturbed.
If a Juror Is honest enough fully and
fairly to state to the court the sources
of his Information about the case
and the conditional or even satisfac
tory opinion he entertains from that
viewpoint, remembering that usually
the only testimony available on ex
amination of a Juror is his own, we
cannot say that the court erred in
accepting the Juror's pledge to de
cide the issue according to the law
and the evidence as given him upon
the trial, notwithstanding his pre
vious, mental attitude.
The defendant questions the right
of the court to compel him to exer
cise two peremptory challenges to
the state's one until he exhausted the
12 allowed him by section 1523, L.
0. L. The defense relies upon Sec.
125, supra, to support his contention
that beginning with the defendant,
peremptory challenges should be
used one by one alternately between
the parties. That section was adopt
ed substantially from the laws of the
state of "Washington by the legisla
tive assembly of 1909, and reads as
follows: "The full number of jur
ors having been called shall there
upon be examined as to their quali
fications, first by the defendant and
then by the plaintiff, and having been
passed for cause, peremptory chal
lenges shall be conducted as fol
lows, to-wit: The defendant may
challenge one, and then the plaintiff
may challenge one, and so alternat
ing until the peremptory challenges
shall be exhausted. After each chal
lenge, the panel shall be filled and
the additional Juror passed for cause
before another peremptory challenge
shall be exercised, and neither party
is required to exercise a peremptory
challenge unless the full number of
jurors are in the Jury box at the time.
The refusal to challenge by either
party in the said order of alternation
shall not defeat the adverse party of
his full number of challenges, and
such refusal -on the part of said par
ty to exercise his challenge in prop
er turn shall conclude him as to the
Jurors once accepted by him, and if
his right of peremptory challenge be
not exhausted, his further challenges
shall be confined, in his proper turn,
to such additional Jurors as may be
called. The court may, for good
cause, permit a challenge to be tak
en to any Juror before the Jury Is
completed and sworn, notwithstand
ing the juror challenged may have
been theretofore accepted, but noth
ing herein shall be construed to in
crease the number of peremptory
challenges allowed by other provi
sions of law." If it Is correct to as
sume, as counsel for defendant ap
parently contend, that this section
applies to criminal trials, the action
of the court may be (defended on the
principle that having adopted the
statute of another state, we auupi
with it the Judicial construction given
to the statute by the courts of that
state. Crawford v. Roberts, 8 Or.
324; Mclntyre v. Kanim. 12 Or. 253;
Trabant v. Runnell, 14 Or. 17; Ever
din v. McGinn, 23 Or. 15. In State v.
Eddon, 8 Wash. 292, 305, the supreme
court of that state construed their
statute from which section 126, L. O.
L., was taken, to mean that the per
emptory challenges should be used
first by one party and then by the
other in proportion to the number
allotted to each, working out as a
result that where the defendant was
allowed 12 and the state six, the for
mer should use two to the state's one
of such challenges. Similar statutes
have received like construction in
Idaho and Montana. State v.
Browne, 4 Idaho, 723; State v. Sloan,
22 Mont 293.
In our judgment, however, it is
not necessary to rely on this con
struction of the law. The code of
civil procedure has Its origin in the
act of the legislative assembly of
October 11, 1862, while the code of
criminal procedure is embodied in
the act of October 19, 1864, and
amendments thereto. Deady's Code,
pp. 139, 441. They are independent
acts having no relation to each oth
er except as provided by references
from the latter to the former. In the
formation of the Jury the criminal
code declares that "in criminal ac
tions, the trial Jury Is formed In the
manner prescribed in Chapter II of
Title II. of the code of civil proce
dure, except as otherwise expressly
provided in this chapter." L. O. L.
Sec. 1520. The criminal code in the
same chapter excludes the civil chal
lenge for Implied bias (Sec. 122, su
pra) and substitutes one of its own.
(L. 0. L. Sec. 1521) besides dispens
ing with the equality in the number
of peremptory challenges designated
In Sec. 125, supra, and allowing the
defendant In criminal actions double
the number apportioned to the state.
In these respects the criminal code
itself provides otherwise than the
civil code. Section 1520, supra, must
be construed to be a reference to the
civil code as it was at the date of
the enactment of the criminal code. It
Is as If Chapter II. of Title II. of the
act of October 11, 1862, except Sec
tions 122 and 125, were reprtntld in
the criminal qode as part of the lat
ter. It Is a rule of statutory con
struction In this state that where the
provisions of one statute are Incor
porated Into another by mere refer
ence a subsequent change in the
former will not disturb the terms of
the latter. Tillamook City v. Tilla
mook county, 107 Pac. 482; Slka v.
C. & N. W. Ry. Co., 21 Wis. 375; Peo
ple ex rel v. Webster, 28 N. Y. Supp.
646; Shull v. Barton, 58 Neb. 741;
Schwenke v. Union Depot, etc., 7
Colo. 512; Ex parte Crow Dog, 109
U. S. 556; Wick v. Ft. Plain Ry. Co.,
50 N. Y. Stipp. 479. We conclude
that the legislative assembly in
amending section 126 In 1909 must
have had in mind the autonomy of
the criminal code as a separate act;
that it was otherwise provided there
in about the peremptory challenges;
and that on account of the disparity
between the number allowed to each
party In criminal cases It would be
Impracticable to have them alternate
one by one. Thus the criminal code
was left Intact. Strictly speaking,
the court could have required all
challenges to be taken by both par
ties as to each juror before another
was drawn from the box( but they
were Indulged by the court in making
their peremptory challenges to par
ticular Jurors after the others wre
examined. The defendant's rights
were not abused. He was not de
prived of any of the means by which
the law allows him to exclude Jur
ors from the panel. The trial Jury
was legally and properly selected.
It Is Impossible within the limits
of an ordinary opinion to notice In
detail each one of the 14 assignments
of error noted In the bill of excep
tions. The principal contention of
the defendant Is that the court erred
In admitting testimony about the ac
tions and private conferences be-
tween the defendants Shields, Green
and Caseday in Monument and Ham
ilton the evening before the killing
of Snyder and of the declarations and
threats of Shields and his conduct In
trying to get different parties to help
hang Snyder. This theory of objec-
tlon runs throughout the case and is
the foundation of most of the excep
tions to the charge of the court. It
is rare that a criminal conspiracy
can be proven by direct and positive
testimony. Most generally the pro'
ecutlon is compelled to rely on cir
cumstantial evidence. It Is within
the discretion of the court not only
by virtue of our statute but also in
pursuance of numerous cases to reg
ulate the order of proof and it ma,y
well happen that the delineation of
the res gestae will disclose acts and
sayings of co-consplrators In ad-
vance of any showing of the connec
tion of a particular defendant with
that conspiracy, all without error. A
careful perusal of the testimony
which is reported in full with the bill
of exceptions convinces us that at
least prima facie case of participa
tion in the conspiracy is shown as
against Caseday.
After the formation of a conspir
acy to commit crime, any act or
declaration of one of the conspirators
which occurs before the actual com
mission of the contemplated crime,
and which tends to prove the guilt of
that conspirator is equally admlssl-
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ble In evidence against any one of his
confederates in a separate trial of the
latter. If not connected with the
deeds of those who actually gave
Snyder his le,thal wounds the defen
dant Caseday did nothing criminal in
itself. Taking the prisoner to the
scene of his death was innocent
enough when considered alone. It
therefore became necessary to the
conviction of the defendant to show
that this ostensibly blameless act
was by him made a Dart of a crimi
nal scheme in which he and his co-
defendants, or some of them, partici
pated with the design to slay Sny
der. Hence arose the- requirement of
proving a conspiracy for that pur
Mse. i Further, if the state would Im
part "criminality to this apparently
Innocent act of the defendant Case
day It was, important to prove not
only that he thus aqted his part In
the tragedy but also that the others
of the cast, or some of them, per
formed theirs and to that end any
thing that tended to show the guilt
of any of them was admissible
against htm provided it happened
during the existence of the conspir
acy. In the presence and hearing of
his brother. Earl, armed with a rifle,
having in bis possession the : car
tridges returned to him by the de
fendant saying: "For ., God's sake,
ain't that enough," Emmett Shields
declared: "I bet you that man never
gets to Canyon." This was surely
admissible against the declarant and
In conjunction with the other evi
dence tending to show guilty confed
eration between him and Caseday It
was also competent as againBt the
latter. This is but an illustration of
other like circumstances disclosed by
the testimony.
- It is contended that some of these
declarations of Caseday's co-defend
ants were made before there was any
showing of participation on his part
In the alleged conspiracy. This can
not affect the case If in fact Caseday
did participate in the conspiracy and
aided In bringing about the fatal con
summation. . If a . conspiracy is In
fact formed and progress is made
towards Its consummation, when a
defendant actively participates In
such conspiracy he adopts the pre
vious acts and declarations of his
fellow 'conspirators. In a sense he
finds the conspiracy a going concern
adds his ability to its criminal capi
tal and so becomes as much a part
of the enterprise as if he were one of
its founders. Hence the declarations
ef a fellow conspirator, although
made before defendant joins the law
less association, are admissible In the
trial of any one of them. Smith v,
State, 21 Tex. App. 96; State v. Crab,
121 Mo. 554; Sands v. Commonwealth,
21 Gratt 871; Keely'v. People, 55 N.
Y. 575; Commonwealth r. Waterman
122 Mass. 43; Krens v. State, 75 Neb.
2S4; Barrego v. Territory. 48 Pac.
S49; Collins v. State, 138 Ala. 57;
Trevlno v.' State, 41 8. W. 609; Wll
kerson v. State, 57 S. W. 958; Mer
cer v. State, 74 Am. St. Rep. 135;
State v. Dllly, 87 Fac. 133; State v.
Darling, 199 Mo. 168.
The court refused the following In
structlon reauested by defendant:
"Where a conviction for a criminal
offense is sought upon circumstantial
evidence alone, the state must show
beyond a reasonable doubt that the
alleged facts and circumstances are
true and they must be such facta and
circumstances as are absolutely in
compatible upon any reasonable
hypothesis with the innocence of the
accused and Incapable of explana
tion upon any reasonable hypothecs
other than that of the guilt of 'he ac-
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cused. If all the facts and circum
stances relied on by the state to se
cure a conviction can be reasonably
accounted for upon any theory con
sistent with the Innocence of thede
fendant, such facts and circum
stances are not sufficient to sustain
a conviction." This instruction, tak
en as a whole, Is erroneous. The
term "absolutely" implies a mathe
matical demonstration which is a de
gree of proof impossible In any mat
ter involving the actions of human
beings. The law does not contem
plate such a degree of certainty but
requires only moral certainty to the
exclusion of reasonable doubt of the
guilt of the defendant. State v.
Glass, 5 Or. 73. The latter part of
the Instruction directing in substance
a verdict for. the defendant If any
reasonable theory consistent with his
innocence could be derived from the
testimony was otherwise given in the
court.
The court also gave this instruc
tion: "Notwithstanding the admis
sions and confessions of a defendant
may be given against him on his trial
for crime, such admissions or con-
fesslons are no alone sufficient to,rul Bct witnoui aue care or circum
warrant a conviction without some
other proof that the crime has been
committed." The defendant contends
that this part of the charge is erro
neous because It does not state the
degree of proof necessary to supple
ment the original admission or con
fession. The language is practically
that of the code (L. O. L. Sec. 1537)
and in that respect differs from the
statute of the state of California
from which altatlons are made In sup
port of this assignment of error. The
degree of proof, or, in other words,
the effect of the evidence is for the
Jury and under our statute the court
cannot weigh the testimony for the
Jury independent of the admissions
or confessions.
The- defendant further complains
of the following Instruction:
"The testimony of some witnesses
has been offered by the state to show
certain oral statements made by the
defendant now on trial, after the
death of Oliver Snyder. In criminal
law a statement voluntarily made by
a person of a fact only, which Is as
consistent with his Innocence as with
his guilt, and Is made exculpatory, or
In explanation of any suspicious or
Incriminating circumstances, Is an
admission; but when the statement
carries with it a suggestion of guilt,
either as to the character of his in
tent, or the quality of his act, and
the statement is made inculpatory,
such statement is In the nature of a
confession." Taken in connection
with the whole of the court's charge,
the learned Judge was simply distin
guishing between confessions and
admissions with a view of explaining
the latter to the Jury. There is abun
dant evidence In the record to author
ize an Instruction about admissions,
for the witnesses detailed several
things stated by the defendant after
the killing of Snyder and the distinc
tion made by the court was quite
proper within the meaning of State
v. Heldenrelch. 29 Or. 381, and State
v. Porter, 32 Or. 135. Some questions
about cross examination of witnesses
are raised in defendant's brief, but
none of them are meritorious or show
any erroneous exercise of the court's
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authority over those features of the
trial as defined by our code. L. 0.
L. Sec. 856.
At the close of the charge counsel
for defendant asked that the jury be
instructed as to the, crime of man
slaughter. Sections 1897, 1898,1899
and 1900 of our code separately de
fine manslaughter as the same may
be committed under different cir
cumstances. 'The request was gen
eral In its terms anil did not indicate
what particular kind of manslaughter
the defendant wished to be explained
to the Jury. The only indication we
find in the brief of the appellant on
that point Is the "quotation of Sec.
1898, L. O. L viz.: "If any person
shall, in the commission of an un
lawful act, or a lawful act without
due caution or clrcnmspectlon, in
voluntarily kill another, such person
shall be deemed guilty of man
slaughter." We are at a loss to per
ceive how this section applres to the
rase in hand unless It- be . claimed
that in proceeding towards Canyon
City with his prisoner alone after be
ing warned of a plot to lynch Sny-
dflr the defendant performed a law-
spection on account of which the
death of the prisoner occurred.
In our judgment this section does
not apply even to Biich a hypothesis.
If the death of Snyder was the direct
result of the negligent act of Case
day without the voluntary Interven
tion of any other human agency or,
In other words, If his negligence
operating as a proximate cause in
conjunction only with natural
causes resulted In Snyder losing his
life, the section quoted would be ap
plicable, otherwise not. There Is no
theory of the evidence supporting or
giving color to such a situation. If
we consider the conduct of the de
fendant as only negligent still it was
not the proximate agency which ac
complished the death of Snyder. The
voluntary act of other persons In
shooting him was 'the Immediate
cauBe of his demise bo that the ac
tions of the defendant will not oper
ate to Increase his mere heedlessness
to manslaughter or to reduce to that
grade a more serious homicide.
The rule Is well setletd, that on
a trial of a person for the crime of
murder, if there is no evidence tend
ing to reduce the homicide to man
slaughter, It Is not Incumbent upon
the court to charge with reference to
the lesser crime." State v. Magers,
35 Or. 520; State v. Megorden, 49 Or.
259. If the defendant honestly
thought the alleged threats of his co
defendants were drunken bluff and
go started alone with his prisoner,
although against the Judgment of
cooler heads, and the tragedy ensued
without his consent, he ought to have
been acquitted. Again, If from mere
bravado he went on his way intend
ing to overcome all attempts against
his charge and at the critical moment
his courage failed and he weakly
gave up Snyder to his death, still he
did not violate the law. But If, on the
other hand, having knowledge of and
being a party to the alleged conspir
acy to kill Snyder, the defendant
agreed or consented to take him to
the scene of the killing, ostensibly In
the performance of a duty enjoined
upon an officer of the law, but In
real truth as a part the defendant
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was to act In the tragedy, he was
guilty of a degree of homicide great
er than manslaughter.
In our opinion upon .the whole
case there is no half way ground for
the defendant to occupy between in
nocence and murder. The trial
court went as far as proper In his
favor in advising the Jury about the
degrees of homicide. There ' being
no theory of the evidence upon which
to predicate manslaughter, the court
was right in refusing an Instruction
upon that point To accede to de
fendant's request in that respect
woWld have been turning - the jury
loose to speculate outside of the evi
dence and, as the slang goes, to "re
turn a verdict on general principles."
It would have exposed the defendant
to a danger not at all Justified by the
evidence or the law applicable to the
case. The alternative of the defen
dant's Innocence or his guilt of the
only species of homicide which could
be derived from any reasonable
theory arising from the testimony
was fairly submitted to a jury of his
peers and that jury has decided the
dilemma against him,
The judgment Is affirmed.
Tull For Bids.
Notice is hereby given that the un
dersigned will receive bids up to 5
o'clock p. m. on Monday, May 1st,
1911, for the Improvement of 13th
street, from the North line of Ferry
street to the South line of Marion
street, with concrete pavement, ac
cording to the plans and specifica
tions adopted for such improvement.
The council reserves the right to
reject any and all bids and waive
any and all irregularities in the
manner of submitting bids in the In
terest of the city.
- CHAS. F. ELGIN,
4-19-3t City Recorder.
o
'otle to Property Owuers.
Property owners on Ferry, street,
North Liberty street, South 12tU
street, North 13th street, and North
Summer street, are hereby notified
that they must make their water and
gas main connection immediately.
Done by order of the Common
Council, April 17th, 1911. )
CHAS. F. ELGIN J
4-19-3t City Recorder.
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