STATE v. LELAND
190 Or. 598 (1951)
227 P.2d 785
STATE OF OREGON v. LELAND
Supreme Court of Oregon.
Petition for rehearing denied February 28, 1951.
Thomas H. Ryan argued the cause for appellant. On the brief were Ryan & Pelay and Donald McEwen, of Portland.
John R. Collier, Deputy District Attorney, of Portland, argued the cause for Respondent. With him on the brief were John B. McCourt, District Attorney, and J. Raymond Carskadon, Deputy District Attorney, of Portland.
Before LUSK, Chief Justice, and BRAND, ROSSMAN, HAY, LATOURETTE and WARNER, Justices.
The defendant, Morris Leland, was indicted for first degree murder. He entered a plea of not guilty and also gave notice of an intention to prove insanity. Upon the trial the jury returned a verdict of guilty without recommendation of life imprisonment. The death penalty automatically followed, and the defendant has appealed assigning twenty alleged errors.
The circumstances of the crime, as revealed by the defendant's confessions, were as follows: At about the hour of a quarter after four on the morning of
At about two o'clock on the morning of August 11 the defendant was arrested for the theft of an automobile and brought to the Portland police station. There he told a sergeant of police that he wished to talk to a homicide officer because he had killed a girl. He led the police to the scene of the crime, freely telling them the story of its commission. Later in the morning he was questioned by John R. Collier, deputy district attorney for Multnomah County, and Captain William D.
The defendant did not testify, and there is no contradiction in the evidence of the foregoing facts save minor discrepancies in the defendant's own statements. What the officers found at the scene of the crime corroborated the defendant's confessions.
The defendant being without funds, the court appointed counsel to defend him. In the best tradition of the Bar these gentlemen discharged their duty to their client with zeal and ability, both in the trial court and here. That their efforts have been unsuccessful is no reflection upon them, for the crime was so wanton and inhuman, and so amply proved, that any other verdict than one of guilty would have been a shocking miscarriage of justice, while the rights of the defendant were fully protected by a careful and able judge and no errors prejudicial to him were committed.
The first assignment of error is based upon the court's refusal to grant a postponement of the trial. The indictment was returned August 18, 1949. On August 22 Messrs. Thomas H. Ryan and Anthony Pelay, Jr., were appointed defendant's counsel by the court. On August 30 defendant's counsel served on the district attorney a notice of his intention to show in evidence that he was insane and mentally defective at the time of the commission of the alleged crime. On September 8 counsel for the defendant filed a written
The court granted a further continuance until October 27, on which day the trial commenced. It appears that, on the hearing of the motion filed October 12, Mr. Ryan and the judge hearing the motion agreed that the judge might ascertain from Dr. Henry H. Dixon, the psychiatrist employed by the defendant, whether Dr. Dixon would be ready to testify by October 27, and that Mr. Ryan would abide by the judge's decision, and that the judge was told in substance by Dr. Dixon that he would be ready to testify by that time. In fact, Dr. Dixon was not called as a witness until November 4, nine days after the trial commenced. It further appears that the defendant was able to obtain and introduce
1. The trial court's ruling on a motion for postponement will not be disturbed on appeal save for manifest abuse of discretion. State v. Mizis, 48 Or. 165, 175, 85 P. 611, 86 P. 361, and Oregon cases there cited. Actually, sixty-five days elapsed from the day defendant's counsel were appointed until the commencement of the trial and seventy-four days before Dr. Dixon took the witness stand. There is nothing in the record to indicate that Dr. Dixon was not fully prepared to testify at that time. The record shows that on the trial Mr. Ryan renewed the motion for postponement, and, in the course of a statement to the court with reference to the proceedings on the original presentation of the motion, said: "I disclosed to the court that Dr. Dixon, a psychiatrist whom we had employed in the case, would not be ready for trial, according to his information to us, for two weeks after the 24th of October". In fact, two weeks elapsed after October 24 before Dr. Dixon was called to testify.
The fears of counsel that they would be unable to obtain evidence, such, for example, as the records of the Veterans Bureau, proved to be groundless. It is not now claimed that the defendant was unable to obtain any evidence, otherwise available, because the postponement requested was denied.
The newspaper articles referred to in the motion have not been brought to this court. But, whatever may have been their character, we have nothing but the unsupported statement of counsel that their publication had so excited the public mind that the defendant could not obtain a fair trial unless the requested postponement
2, 3. We do not question counsel's good faith in seeking a postponement, but we may observe that frequently, when all other defenses fail, delay is the favorite expedient of the accused in a criminal case to escape paying the penalty for his crime. The defendant is, of course, entitled to a reasonable time to prepare for trial. He is also entitled to a fair trial, which has been well defined as "a trial before an impartial judge, an honest jury, and in an atmosphere of judicial calm." 14 Am. Jur., Criminal Law, 853, § 130; State v. Gossett, 117 S.C. 76, 108 S.E. 290, 16 A.L.R. 1299. The Gossett case is cited by counsel for defendant, but it falls far short of supporting their contention. In that case the court held unconstitutional a law which authorized the governor of the state, upon application of the local prosecuting officer, to order an extra term of court. The case was one in which the defendants, who were accused of rape, were brought to trial three days after their indictment and under such circumstances as to lead the court to say of the procedure provided in the section held invalid, that it "is a bald concession to the spirit of mob law, and presents the spectacle of the law, strong and mighty, bowing to the despotism of the mob, which has been declared to be greater than the tyranny of a despot." It appears from the opinion that the foreman of the grand jury of Abbeville County (in which the defendants were indicted) made affidavit to the effect that the defendants could not safely be
Prior to the date of trial the defendant served upon the district attorney a motion to require the latter to disclose and make available to counsel for the defendant "the alleged confession of the defendant and all records pertaining to the death of Thelma A. Taylor taken by the coroner's office." While not specified in the motion, the briefs, as well as the proceedings in the court below, show that the motion was directed only to the confession which was taken down by a stenographer, and not to the one which the defendant later wrote out in his own hand. The former is State's Exhibit 15, the latter State's Exhibit 18. This motion does not appear to have been argued until immediately before the commencement of the trial when defendant's counsel orally moved for an order permitting them to examine the confession. The court denied the motion, and this ruling, so far as the confession alone is concerned, is made the basis of an assignment of error. The question arose again upon the trial before the confession was introduced in evidence, and at that time
So far as we are advised, the question presented by this assignment of error has never been determined by this court. It is a different question from that decided in State v. Yee Guck, 99 Or. 231, 195 P. 363, and State v. Brake, 99 Or. 310, 195 P. 583, which dealt with the unsigned memoranda of statements made by witnesses for the state. It was held that, since such memoranda were not admissible in evidence, their production could not be compelled on the trial as an aid to cross-examination for the purpose of impeachment. State v. Steeves, 29 Or. 85, 43 P. 947, is likewise distinguishable because the point in that case was that, where the state sought to impeach its own witness by inconsistent statements in a written confession signed by him, it was required to show the witness the writing in accordance with the terms of § 4-712, O.C.L.A.
We will consider the decisions from other states. People v. Becker, 210 N.Y. 274, 104 N.E. 396, cited by
In People ex rel. Lemon v. Supreme Court, 245 N.Y. 24, 156 N.E. 84, 52 A.L.R. 200, the court held that a trial judge exceeded his powers in ordering the prosecuting attorney to make available for inspection by counsel for the defense, in a murder case where poisoning of the victim was charged, all reports made to the district attorney of chemical analysis of the body of the deceased and other similar documents. As in our own cases, the court put its decision on the ground that the documents were not admissible in evidence. The opinion was written by Judge Cardozo and will be referred to again for its discussion of the very question which we must decide here.
State v. Tippett, 317 Mo. 319, 296 S.W. 132, cited by the defendant, goes so far as to hold that the defendant in a criminal case has the right to compel production before trial of a written statement given to the prosecuting attorney by a witness. This decision, of course, is out of harmony with the law as previously laid down by this court, and the Missouri court conceded its inability to find an authority in point.
There are a number of cases which deal with confessions signed by the defendant and admissible in evidence. Davis v. State, 99 Tex. Crim. Rep. 517, 270
The strongest decision for the defendant is State v. Dorsey, 207 La. 928, 955, 22 So.2d 273, which holds that the court's refusal of a pre-trial demand by the defendant for permission to inspect and make a copy of a written confession, which the state intended to introduce in evidence, was tantamount to depriving him of a fair and impartial trial and thus a violation of his constitutional rights. The court conceded that the power did not exist at common law, cited a number of cases opposed to its conclusion and none which supported it, and was able to point to no statutory authority. The decision seems to have been largely influenced by Wigmore's discussion of the subject, VI Wigmore on Evidence (3d ed.) 395, § 1850, and an account, quoted in Wigmore, by the Hon. Charles S. Whitman, of the pre-trial practice in England under which all the evidence of the Crown is disclosed in the
After quoting the foregoing the court proceeded:
The defendant in the Dorsey case claimed in his motion that knowledge of the contents of the confession was important and material in the proper preparation of his defense; and we take it that the rule of that case is that, whenever application on such a ground for inspection of a confession signed by the defendant is refused, the court's action is in effect the denial of the right to a fair and impartial trial.
Counsel for the defendant invoke § 10-401, O.C.L.A., which provides in part:
In State v. Yee Guck, supra, the court indicated obiter that this section, though it is a part of the Code of Civil Procedure, is applicable in criminal cases by saying: "It would seem also that Section 533, Or. L. (now § 10-401, O.C.L.A.), would be applicable in a proper case to the matter in hand". The opinion proceeded: "The power of the court under this section is clearly discretionary. The language is not mandatory." (99 Or. 236)
Judge Cardozo in People ex rel. Lemon v. Supreme Court, supra, while leaving the question open, suggested that there may be "a supervisory jurisdiction, as yet unplumbed and unexhausted, in respect of criminal prosecutions" to order discovery in cases of this kind. And, referring to the New York statute that the rules of evidence shall be the same in criminal as in civil causes, he wrote: "The provisions of the Civil Codes for the discovery of documents are not rules of evidence in the strict sense. They are closely akin, however, to such rules, for they govern and define the remedies whereby evidence is made available." We have a similar provision in this state respecting evidence in civil and criminal actions and proceedings. § 26-932, O.C.L.A. Judge Cardozo's discussion of the subject shows that, while at common law the power of the criminal courts to compel production of documents admissible in evidence is denied, "Later cases exhibit a more conciliatory tendency where the document is one that may be received as an exhibit." Among other illustrations is a case where the exhibit is the basis of the charge, as, for example, where the indictment is
4. We are not prepared to go so far as the Louisiana court in State v. Dorsey. Not only do we fail to find either at common law or under statute authority for the rule of that decision, but we have grave doubts whether such a rule is either necessary or desirable. "Such a measure may of course be abused by the unscrupulous. Therefore, its allowance should be left to the trial judge's discretion." Wigmore, op. cit. p. 395. The rights of the defendant will be fully protected if the power to compel production of evidence in possession of the state is committed to the sound discretion of the trial judge, subject to a review by this court for abuse. There should be no great difficulty in determining, after the record has been fully made up, whether a defendant has in fact been deprived of his right to a fair and impartial trial by denial of the motion.
It requires no undue strain upon the meaning of language to hold that § 26-932, O.C.L.A., providing "The law of evidence in civil actions is also the law of evidence in criminal actions and proceedings * * *", is broad enough to include the authority vested in the court by § 10-401, O.C.L.A., to order a party to produce evidence in his possession before the trial. We approve the dictum of the Yee Guck case and hold that the Circuit Court in the instant case had discretionary power to grant the defendant's motion for permission to inspect the confession.
5. The inquiry, then, is whether the denial of the application amounted to an abuse of discretion. The written motion itself sets forth no grounds for its allowance. The grounds specified by defendant's counsel,
Referring to this answer, it is argued that Dr. Dixon's testimony would have been much more effective "had this typically diseased behavior of the defendant been discussed and analyzed by him before his testimony".
We are somewhat mystified by the argument, based upon the testimony by Captain Browne, that he told the defendant that his confession could be used for or against him. Since this statement does not appear in State's Exhibit 15 inspection of that document would
Dr. Dixon testified to his "reaction" to certain statements of the defendant which appear in State's Exhibit 15, including the answer which we have quoted above. He volunteered that the defendant told him "relatively the same story" that is found in State's Exhibit 15. Based upon this interview and such other information as he was able to obtain about the defendant's history, he was of the opinion, to which he testified, that the defendant was an individual who is "unable to plan ahead" or "premeditate". We are not told how he could have improved his knowledge of the case or testified more effectively had he been afforded a pre-trial inspection of the confession, and we are far from convinced that this claim has any basis in fact.
The admissibility of the defendant's various confessions will be discussed later in this opinion, but, since one of the grounds for the motion to inspect was that counsel intended "to attack the validity of the confession as regards the formality of taking it", it should be said at this point that a pre-trial inspection of the confession would not have aided counsel in his attack in the slightest degree.
We are of the opinion that the Circuit Court did not abuse its discretion in denying the motion for an
During the voir dire examination of the jury a prospective juror, Joseph C. Rolison, was questioned by counsel for the defendant as to whether he had any conscientious scruples against capital punishment, and indicated that the answer to the question would depend upon whether or not a sentence of life imprisonment meant that the person would actually be incarcerated for the remainder of his life. The court interrupted with the following statement:
The examination proceeded, and Mr. Rolison stated that he could not bring in a verdict of death if he knew that "the person was going to be imprisoned for the rest of his life." Later the deputy district attorney examined Mr. Rolison and the following occurred:
The ruling is assigned as error, the defendant's counsel contending that it was prejudicial to their client's rights to bring before the jury the possibility that the defendant would be paroled if he should be sentenced to life imprisonment. They cite four cases: Fair v. State, 168 Ga. 409, 148 S.E. 144; Berry v. Commonwealth, 227 Ky. 528, 13 S.W.2d 521; State v. Johnson, 151 La. 625, 92 So. 139; State v. Blackman, 108 La. 121, 32 So. 334, 92 Am. St. Rep. 377. These are all cases in which the prosecuting attorney in the argument to the jury sought to secure a verdict of death by statements to the effect that persons sentenced to life imprisonment rarely served out their terms. Typical is Berry v. Commonwealth in which the objectionable argument was as follows: "Send him (the defendant) to the penitentiary and in a few years some soft-hearted Governor will pardon him and turn him loose on society to kill somebody else." Again, in State v. Johnson, the assistant district attorney told the jury that the law which authorized the jury to fix the sentence, either of capital punishment or life imprisonment, "is a farce, or rather a fiction of the law. It does not mean what it says. It only means that
We are not concerned here with a case of an appeal to the jury to bring in a verdict of death because of the probability that a sentence of life imprisonment actually means imprisonment for only a few years, but with a case in which the court, responding to the apparent difficulty a prospective juror was having with the question, undertook to explain it. The present case is much more like Postell v. Commonwealth, 174 Ky. 272, 192 S.W. 39, and Lawler v. Commonwealth, 182 Ky. 185, 206 S.W. 306, than the decisions on which the defendant relies. In the Postell case it appears that, after the jury had commenced to deliberate upon its verdict, it came into the courtroom and asked the court if a prisoner under a life sentence was subject at any time to a parole from the Board of Prison Commissioners. The court gave an affirmative answer, and the jury retired and afterward returned the death verdict. The court said:
Our statute, § 23-411, O.C.L.A., provides:
6. In fixing the penalty in a first degree murder case, the jury's choice is between capital punishment and a sentence of life imprisonment. The possibility of pardon or parole, purely speculative, should not enter into the jury's deliberations, and was irrelevant on the voir dire examination. We, therefore, agree with counsel for the defendant that it was improper for the court to make the statement that it did in this regard, and also improper for the assistant district attorney afterwards to call attention to the court's statement. We are not convinced, however, that the incident resulted in any prejudice to the defendant. We agree with the observations of the Kentucky court in Lawler v. Commonwealth about the very similar occurrence in that case. It should be remembered that the statements complained of were made while the jury was being selected and some eleven days before the case was finally submitted. In the instructions the court told the jury that if it brought in a verdict of murder in the first degree, with a recommendation of life imprisonment, "this recommendation is mandatory and imposes compulsory action on the court. In such event the penalty is imprisonment for life, and you shall assume life imprisonment means imprisonment for life." This was the last word that the jury heard upon the question from the court. The assignment of error cannot be sustained.
7, 8. The appellant assigns as error the action of the court in excusing three jurors because they had conscientious scruples against capital punishment. It is doubtful whether the alleged error is properly before
Section 26-917 (6), O.C.L.A., provides that a cause for which a challenge for implied bias may be taken is the following: "If the offense be punishable with death, the entertaining of such conscientious opinions as would preclude a person from finding the defendant guilty; in which case he shall neither be permitted nor compelled to serve as a juror." This statute has remained unchanged since its enactment in 1864. It is not claimed that it was repealed by the constitutional provision abolishing capital punishment. It is contended, however, that since, at the time the statute was enacted, the death penalty on conviction of first degree murder was mandatory, "conscientious scruples against capital punishment would affect the enforcement of the law"; but, as we understand it, that this is not true under the present legislation authorizing the jury to recommend life imprisonment (§ 23-411, O.C.L.A.), and therefore Subd. 6 of § 26-917 has been repealed by § 23-411. Alternatively, it is argued that, if the repeal has not been effected, then § 26-917 is unconstitutional because it violates the provision of Art. I, § 11, of the State Constitution that "In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury". The defendant's brief says: "The effect of the provision automatically excusing persons who are opposed to capital punishment
The claim that the section in question has been repealed is answered by the simple statement that there is no conflict between it and the present law providing for capital punishment.
The constitutional point rests upon the false premise that a person who believes in capital punishment, or at least one who has no conscientious scruples against it, is apt to be unfair and vindictive. This is practically an indictment of the people of Oregon, for it is by their will that capital punishment is authorized in this state. The statute on that subject is substantially the same as the constitutional provision. Const., Art. I, § 37. Both reflect the policy of the state that the ends of justice and the protection of the public are subserved in specific instances by putting to death a person convicted of murder in the first degree, the jury being invested with the power to determine whether a particular case calls for the extreme penalty. The Constitution and the statutes assume, as well they may, that a man or a woman may have no conscientious scruples against capital punishment and yet be a fair and impartial juror. The state has rights as well as the defendant; it would be deprived of an important right were it forced, in a case in which its representatives conscientiously believed that it was their duty to demand the death penalty, to accept even a single juror whose convictions upon the subject of capital punishment would prevent him from exercising the discretion committed to the jury by the Constitution and the statute.
9-11. Assignments of Error 5, 7 and 9 present similar questions and will be considered together.
By Assignment 5 it is contended that the court erred in admitting over defendant's objections the testimony of Officers Wiles and Mitola as to confessions of the defendant to them. These confessions consisted of the statements made by the defendant shortly after he was brought to the county jail on the early morning of August 11, when he told Officer Wiles that he wanted to talk to a homicide officer about a murder, and proceeded to relate the story of the crime, first in the police station and later on the way to and at the scene of the crime. The ground of the objections was that the officers did not advise the defendant that anything he might say would be used against him, or of his right to counsel, or his right to be taken before a magistrate.
Assignment 7 is based upon the admission in evidence over defendant's objection of State's Exhibit 15, the transcribed confession, and Assignment 9 upon the admission in evidence of State's Exhibit 18, the confession which the defendant wrote in his own hand. In addition to the grounds asserted in support of the objections to the testimony of the officers, it was
The contention that a voluntary confession made before the accused has been taken before a magistrate is inadmissible in evidence is determined adversely to the defendant on the authority of State v. Folkes, 174 Or. 568, 587, 150 P.2d 17, 323 U.S. 779, 89 L.ed. 622, 65 S.Ct. 189; and the claim that unless the defendant was first advised of his constitutional rights his confession would be inadmissible, conflicts with the law as laid down in State v. Henderson, 182 Or. 147, 173, 184 P.2d 392, and State v. Butchek, supra, 121 Or. 153. In this connection it is to be observed that before the defendant made the confession, State's Exhibit 15, Deputy District Attorney Collier advised him as follows:
The objections on these grounds are without merit.
Neither is there merit in the contention that the confession, State's Exhibit 15, was not voluntarily made. There is not the slightest suggestion in the evidence that any influence whatever was brought to bear upon the defendant to induce him to make the
All this is urged in the face of the fact that the defendant had theretofore, without prompting or suggestion from anyone, entirely on his own motion, told the officers about his commission of a murder of which they had never heard up to that time (as in State v. Butchek, supra), and of the further fact that on the evening of the same day he asked for paper and pen so that he could write out another confession. It is, of course, entirely possible that the defendant's "mental incapacity" had something to do with his apparent eagerness to confess, not once but several times; on the other hand, it may have been due to those
Assignments of Error 5, 7 and 9 are devoid of merit.
12-16. Assignments of Error 6, 8, 10, 15 and 17 present a common objection, to-wit: The gruesome character of certain exhibits admitted in evidence. These were the clothing worn by the murdered girl, a billfold and its contents taken from the pocket of the "levis" she wore at the time that she was killed, and a photograph of the girl's body taken in the morgue after her clothes had been removed.
The defendant's plea of not guilty put in issue every material allegation of the indictment, including not only the fact of the killing of Thelma Taylor by the defendant, but that it was done "unlawfully and feloniously, purposely and of deliberate and premeditated malice". The state had the burden of proving all the elements of the crime to the satisfaction of the jury beyond a reasonable doubt if it was to establish the charge of first degree murder. To this end evidence corroborating the defendant's confessions was essential. § 26-939, O.C.L.A. The wounds inflicted upon the dead girl shown in the photograph, and the holes in the jacket, blouse and brassiere which she had worn, evidently made by a knife blade, tended to show that the crime was committed in the manner described in the confessions, and these exhibits were also relevant upon the question of deliberation and premeditation. State v. Butchek, supra, 121 Or. 155 et seq. Two identification cards found in the billfold tended to prove that the body found by the officers was the body of
17. In connection with the assignments of error just
18. Upon cross-examination of Dr. Dixon the witness was permitted, over the objection of counsel for the defendant, to answer questions as to whether the defendant was legally sane, that is, whether he knew the difference between right and wrong. Dr. Dixon testified in substance that the defendant did know the
Another assignment of error is based upon a similar ruling with respect to the testimony of Dr. Benjamin F. Williams, a psychiatrist called by the state. It is disposed of by what we have just said.
19-21. On the cross-examination of Dr. John W. Evans, a psychiatrist called by the state, counsel for the defendant questioned the witness concerning the conduct of psychopaths, evidently for the purpose of attempting to show that the defendant, who concededly had "a psychopathic personality", was unable to form a plan and carry it out, or, in other words, to premeditate. The following is a part of the cross-examination:
The question, "And if this girl started screaming and he said `It came to me like that'", had reference to a statement made by the defendant in his confession in answer to the question, "what made you make your decision that you should kill her?" As disclosed by State's Exhibit 15, the defendant answered: "It just come to me (snapping fingers), just the second she started screaming." Prior to giving this answer the defendant had described the murder in great detail. Among other things, he said that a freight train came by the place where he and the girl were, that the trainmen were switching cars, and the girl started to scream, and screamed loud enough for the men to hear her, whereupon he struck her on the head with the steel bar and continued to strike her until she quit screaming, and then "knocked her out" by hitting her across the forehead and then "stabbed her once or twice".
On redirect examination the district attorney propounded to the witness a long hypothetical question based entirely on State's Exhibit 15, which concluded as follows: "Now, taking those things into consideration,
The hypothetical question was a fair resume of the confession. It did not, it is true, include everything which the defendant said, but everything in it was based upon what the defendant did say. And, since some parts of the confession were, or might be found by the jury to be, inconsistent with others, or with other evidence in the record, counsel's demand was a highly unreasonable one. For example, he insisted that the question should assume the truth of a statement of the defendant which appears in State's Exhibit 15 that "the reason I killed her was because she started screaming, I had no intention of killing her originally." This might be found to be inconsistent with what the defendant wrote in the confession, State's Exhibit 18, "on the same said Friday I picked up a piece of steel 18 in long 1/2 in round with the idea of killing her with it."
The rule respecting the contents of a hypothetical question, as laid down by this court, is as follows: "If
Judged by the standard thus fixed, the question objected to was a fair question, and the objection was properly overruled.
22. During the cross-examination of Dr. Williams, counsel for the defendant quoted from the writing of a number of recognized authorities on diseases of the mind. On re-direct examination the district attorney asked:
Counsel for the defendant objected on the grounds that the question called for the conclusion of the witness and was not a proper hypothetical question because it did not include all the facts of the case. The court overruled the objection, and the witness answered in the negative. The question was not in fact hypothetical because it did not assume the truth of anything, but was merely an inquiry as to whether the doctor's opinion, expressed on direct examination, that
23. Upon the conclusion of the taking of testimony and before the closing arguments began, counsel for the defendant requested the court to instruct the jury "that they are not to permit this gruesomeness of this evidence to be allowed — their passion to be aroused by the District Attorney's comment." The court said:
The ruling is assigned as error. It was entirely discretionary with the court to determine whether such an instruction should be given at that time. It appears that during the testimony of Dr. Sneeden the court interrupted to instruct the jury at some length, with particular reference to the photograph of the corpse, against allowing their judgment to be controlled by sympathy, passion or prejudice. Similar instructions were given in the charge at the close of the case. These admonitions, we think, sufficed. The court is not required to caution the jury to do their duty and to warn
24. It is claimed that the court erred in failing to grant the motion of defendant's counsel to withdraw from the consideration of the jury the questions of first degree murder on the ground that there was no proof beyond a reasonable doubt of deliberation and premeditation and malice. In support of this assignment of error counsel point to certain portions of the testimony of the psychiatrists regarding the defendant's mental condition. But, besides the fact that the experts disagreed among themselves, the jury were not bound by their opinions. In re Faling Will, 105 Or. 365, 449, 208 P. 715; 32 C.J.S., Evidence, 402, § 569 h. It was the province of the jury to determine the questions of premeditation and deliberation and malice from all the evidence in the case, some of which was decidedly in conflict with the expert testimony to the effect that the defendant was incapable of premeditating. It has been held by this court that premeditation and deliberation are always questions for the jury. State v. Butchek, supra, 121 Or. 159.
25-27. Assignment of Error No. 20 leaves something to be desired as a compliance with the rules of this court respecting the preparation of briefs. It includes alleged errors in the court's failure to give twenty-six requested instructions and in giving some four printed pages of instructions. The exception to the instructions given, which relate to the defense of insanity, is not set forth in the brief as the rules require. The transcript, however, shows that the sole exception taken to the instructions was the following:
The instructions upon the subject of insanity are substantially the same as those which we approved in State v. Garver, supra, following earlier precedents in this state. We are now once again asked to hold unconstitutional the Oregon statute, § 26-929, O.C.L.A., which casts upon the defendant the burden of proving the defense of insanity beyond a reasonable doubt, and to overrule the recent decision in State v. Grieco, supra, which rejected that contention. We are also again urged to abandon the so-called "right or wrong" test of insanity and adopt the rule of "irresistible impulse". In State v. Garver we re-examined that question and reached the conclusion that, even though we thought it desirable, we could not, in the face of § 23-122, O.C.L.A., abandon the rule of our decisions, that insanity as a defense to crime is a disease of the mind which renders the person incapable of understanding the nature, quality and consequences of his act, or of distinguishing between right and wrong in relation to such act. Nothing has been presented in this case upon this question not heretofore considered by us in the Garver case. We adhere to that decision. We have heretofore recognized the harshness of the legislation with regard to the burden of proof of insanity. State v. Garver, supra. But we are not convinced that the legislature could not constitutionally so provide, and feel bound to reaffirm the holding of the Grieco case that § 26-929, O.C.L.A., does not offend against any constitutional guaranty. We find the instructions on insanity free from error, and particularly that the
28. We do not consider that we are under a duty to discuss separately all the numerous requested instructions brought together under this assignment of error. Apart from those having to do with the defense of insanity, various of the requests are grouped under headings, as follows: "impulsive acts of defendant", "premeditation and deliberation", "willfulness", "abandonment of intention", and "miscellaneous". The charge of the court covered completely and carefully all phases of the law of homicide applicable under the evidence. Many of these requested instructions deal with deliberation and premeditation. The court instructed at length on these subjects, and, as no exceptions, other than as already noted, were taken to the instructions, and no criticism of any of them is made in the defendant's brief, we take it that counsel for defendant concede their correctness. Yet, without any argument to support the position, we are asked to hold that the court should have given instructions on these subjects in the language of counsel instead of the language actually chosen. A comparison of all the requested instructions with the charge of the court justifies the conclusion that the substance of all the requests which correctly state the law was given in the court's charge, and hence there was no error in declining to adopt these requested instructions.
29. As to the remaining requests, the only ones which, in our opinion, call for particular mention are the following:
By two requested instructions, which fall under the heading in the brief "abandonment of intention",
Thus, the court plainly told the jury that, before they could find that the crime was premeditated, they must find that it was committed pursuant to a design previously formed. The jury could not, under these instructions, find the defendant guilty of first degree murder if they believed that he had, at the time of the killing, abandoned such a design.
30. Another of such requested instructions is the following: "I instruct you that if you believe the defendant killed the decedent in the manner stated in the confession, to wit: `It just come to me (snapping fingers), just the second she started screaming,' then you cannot find the defendant guilty of murder in the first degree." We have already recounted the circumstances of the crime to which the quoted statement of the defendant relates. No authority has been cited for the propriety of such an instruction, and we are confident that none can be found. For the court to have given it would have been a gross usurpation of the
Assignment of Error No. 20 and all its numerous parts are without merit.
31. The following occurred during the argument of the deputy district attorney:
This was followed by a motion for a mistrial, which the court denied in the following language:
The argument was not particularly inflammatory, but it might have become so had it continued along the same lines, and we think the court did well to put a prompt stop to it. The ruling had the effect of forestalling any prejudice that might otherwise have resulted. There was no abuse of discretion in denying the motion for a mistrial.
The judgment is affirmed.
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