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fendant with a homicide by means of certain boot and sock tracks impressed in soft and muddy ground at the scene of the crime. The boots and socks of the defendant were taken from his person upon his arrest, and retained by the sheriff, to be used as evidence against him. Objection to their introduction was made on the ground that they were obtained by an unreasonable search of the person, and that it was, in effect, com

It is insisted that the court erred in overruling the challenges for cause to the jurors Keenan and Kronenberg. Keenan testified, in substance, that he read what purported to be the facts in the case in the newspapers soon after the body was found; that he had heard the matter talked about by a great many parties, and had formed and expressed an opinion, but did not have such opinion at the time of his examination; that he first heard one thing, then another, and final-pelling the defendant to give evidence against ly came to the conclusion that he did not know anything about it; that he did not hear or read enough to form a fixed opinion, although the opinion or impression he had would require some evidence to change it; that he could not dispossess himself of the opinion he then entertained unless evidence was introduced to cause him to do so, but whatever opinion he may have previously formed would not interfere in any way with the determination of the case. Kronenberg said that he heard of the affair about the time it occurred, but he did not form or express any opinion as to the guilt or innocence of the defendant, but did form an opinion that a crime had been committed, which he still entertained, and which would take evidence to remove; that he could not say it was a fixed and definite opinion, or that it was correct; that he could disregard any opinion he had, and try the defendant fairly and impartially. Under the facts disclosed by the examination of these two jurors, there was clearly no reversible error in overruling the challenges. We have so often had occasion to examine similar questions that it is unnecessary to do more at this time than refer to previous decisions. State v. Saunders, 14 Or. 300, 12 Pac. 441; Kumli v. Southern Pac. Co., 21 Or. 505, 28 Pac. 637; State v. Brown, 28 Or. 147, 41 Pac. 1042; State v. Kelly, 28 Or. 225, 42 Pac. 217; State v. Morse, 35 Or. 462, 57 Pac. 631.

The next assignment of error is based on the ruling of the court in admitting in evidence a letter offered for the purpose of identifying the defendant and deceased as the couple seen by a Miss Rohr going out Twelfth street on the evening of July 19th. The letter was found upon the person of defendant, and taken from him at the time of his arrest. The specific objections made to its admissibility as evidence are (1) that its seizure was a violation of the constitutional guaranties against unreasonable search, and its production in court was in violation of the provision that no person shall be compelled to give evidence against himself; and (2) that it was incompetent and irrelevant. The fact that the letter was taken from the person of the defendant at the time of his arrest, by the officer having him in charge, is no valid objection to its admissibility in evidence if it is otherwise competent and pertinent to the issue. 1 Greenl. Ev. (15th Ed.) § 254a. In State v. Nordstrom, 7 Wash. 506, 35 Pac. 382, it was sought to connect the de

himself. Neither of these objections was sustained by the court, however, and the evidence was held competent. In Lovelace v. State, 12 Lea, 721, a postal card found upon the person of the defendant, addressed to another party, was held competent evidence, though not proven to have been written by the defendant. And in State v. Stair, 87 Mo. 268, 56 Am. Rep. 449, it was held that a writing found in the possession of the defendant at the time of his arrest was competent evidence against him. State v. Baker, 33 W. Va. 319, 10 S. E. 639, was a prosecution for a homicide, wherein it was held competent for the state to give in evidence, over the prisoner's objections, pantaloons taken from his person by the officer when arrested, supplemented by evidence tending to show that an investigation by experts had revealed blood stains thereon. We think, therefore, it is no objection to the introduction of the letter in question that it was found upon the person of the defendant at the time of his arrest, and taken from him by the chief of police in making the search that is usually made of arrested persons. Nor do we think it was incompetent or irrelevant. Miss Rohr testified that about 10 minutes before 8 o'clock in the evening she was in the second story of her house, sitting in a window overlooking the sidewalk; that she heard laughter, and looking out saw a young man and woman passing along the street. The young lady was reading a letter consisting of two or three sheets of paper, having a deep printed and prominent heading like a letter from a business house, and as the couple were opposite the window she heard the lady say, "What a funny thing for her to write!" watched the couple until they reached the corner of the street, when the lady handed the letter to the young man, who inclosed it in an envelope and put it in his pocket. Upon being shown the letter referred to, the witness testified that the printing thereon resembled that upon the letter she saw the young lady reading, and to the best of her knowledge it was the same letter, but as she was about 25 feet from the sidewalk she could not say with certainty. Now, one of the means of identifying the defendant and the deceased as the parties seen by Miss Rohr was the letter deceased was reading, which Miss Rohr testified was, to the best of her knowledge, the one offered in evidence. Although she could not be positive that it was the same letter, yet there were

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marks of identity, common to both, sufficient to entitle it to be offered and admitted as testimony for the purpose intended, especially since counsel for defendant stated that if it was offered "merely for the purpose of identifying the fact that Miss Fitch had that in her hand, during the time she was in company with this boy, I don't think I have any objection, but I do object to its being read in evidence." No effort was made by the state to prove by whom the letter was written, nor was anything claimed for it except as a means of identification, and for this purpose it was, in our opinion, competent.

The letter having been properly admitted in evidence, the jury were entitled to inspect and read it, if they so desired. Moreover, it was so connected with the conversation of the parties as to make it almost, if not quite, a part thereof, and necessary to explain the remark of the deceased concerning its contents. It is urged that it tended to blacken the character of the defendant, and to prejudice him before the jury. If this were true, it would afford no reason for its nonadmission if otherwise competent; but we are not prepared to say, with counsel for the defendant, that of itself it would have such an effect, and no extraneous testimony was given or offered concerning it, except the statement made by the defendant to the chief of police that it was written by a married wo

man.

The next contention is that the court erred in admitting in evidence certain declarations made by the defendant to the chief of police, soon after his arrest, concerning his illicit in, timacy with the deceased. It is elementary law that the confessions or statements made by a prisoner to an officer having him in custody on a charge of crime are inadmissible against him, when induced by the influence of hope or fear (State v. Wintzingerode, 9 Or. 153; State v. Moran, 15 Or. 262, 14 Pac. 419); but the evidence clearly shows that the alleged statements of the defendant do not come within this rule. The chief of police testified that when brought to his office, a few hours after the body of Miss Fitch was discovered, he was informed, before he made any statements whatever, that he did not have to talk or answer any questions unless he wanted to, but he was not only willing, but anxious, to make a statement in reference to his connection with the matter, and that no hope was held out to him, or promises made that it would be to his advantage to make such statement, nor was there any attempt to extort it by threats. Whatever statement he made was manifestly his voluntary act, uninfluenced by any acts or thrests of the officers, and was therefore competent testimony. Sparf v. U. S., 156 U. S. 51, 15 Sup. Ct. 273, 39 L. Ed. 343; Underh. Ev. § 129. It is argued, however, that the statements related to collateral matters, and amounted to confessions of guilt of

other offenses than that alleged in the indictment. The general rule is unquestioned that evidence of a distinct crime, unconnected with that alleged in the indictment, cannot be given against a party on trial; but where the evidence offered logically forms a link in a chain of circumstances tending to connect the defendant with the commission of the crime charged in the indictment, or is so connected therewith as to form one entire transaction, it is admissible, although it may tend to prove other offenses. State v. Baker, 23 Or. 441, 32 Pac. 161. And under this rule the declarations of the defendant concerning his association with, and relationship to, the deceased, were undoubtedly competent and material testimony.

Two or three days after the death of Miss Fitch her mother found a letter in her room, of which the following is a copy: "My Darling Claire: I have thought so much about you in the last 24 hours that I have to hear from you some way, or I believe I would go crazy. I can't imagine what I was thinking about when I told you I could wait until Saturday to hear from you. I haven't done anything to-day but think and think. Last night I laid awake, and wondered if you were awake too; what you were thinking about; and, most of all, what you thought of me. Claire, if I thought you didn't care anything for me, I wouldn't care what became of me. I have been worrying all night and all day about what you told me yesterday. It is dangerous to let yourself go that way so long. O, I wish I could see you and talk to you, and understand things better. And I have so many things to tell you,-things which you must know, and I know there is no one else to tell you. I walked up and down Grand avenue for an hour and a half to-night in hopes of seeing you, but failed entirely, and came home almost worried to death. For my sake, Claire, be careful what you do now, at least until I have had a good talk with you; and be careful of your folks. Mothers generally are very careful, and it would almost kill me if I should get you in any trouble of this kind. Keep your own council, and confide in no one until you see ine. If you are in trouble, you can always find me at 543 Oak at night, and in daytime telephone to Main 719, and ask for 'Clay,' and if he isn't there leave word for me,worded, of course, so I can understand it and no one else. Don't be afraid to send for me at any time if you need me. Answer this as soon as possible, please, and tell me everything, and, if you can possibly, let me see you, even for a few minutes, Wednesday or Thursday. With all my love, yours, forever, [Signed] Frank." The state, contending that this letter was written by the defendant, offered it in evidence, and it was admitted over his objection and exception. It is insisted that the court erred in this respect, because there was no proof that it was written by the defendant. But we think the testimony sutf

cient upon this point. The witnesses Brandes and Clay Morse both testified that they knew his handwriting, and believed the letter to have been written by him, and the witness Day testified that while the defendant was in jail he was shown a copy of the letter, and after reading it over said that he had written the original. This was sufficient proof of its authenticity to entitle it to be admitted in evidence.

Clay Morse, a witness for the prosecution, testified that he was acquainted with the defendant and Miss Fitch; that they attended the high school, where they became acquainted; that defendant had been keeping company with her off and on since that time; that witness had carried notes from him to her several times, and defendant had often talked to him about their intimacy, her supposed condition, and his fears on account thereof; that defendant went to work for witness' father about the middle of April, since which time he had lived at their house and roomed with witness; that witness was at home the night of July 19th, and found the defendant in bed with him the next morning, about 6 o'clock, when they were called to breakfast, but did not know when he came in; and that he was sure he did not have a conversation with him that morning. He was then asked by counsel for the state if prior to that time he had not made a statement to the effect that he did have a conversation with the defendant in the morning. Objection was made, and the court ruled that the question was incompetent if intended for the purpose of impeachment; whereupon the state disclaimed such purpose, and the objection was overruled. Witness was then shown a paper signed by him, purporting to be his testimony when examined as a witness by the district attorney under the information law, and asked if he did not at that time, while under oath, make the following statement: "I awoke in the morning about six o'clock, and found McDaniel in bed with me. I started to dress myself. He said to me, 'Did you hear me come to bed last night? I said, 'No.' He then said, 'Well, don't tell any one about it; keep still about it.' I said I wouldn't say anything about it." Objection was made to this question on the ground that it was an attempt on the part of the state to lay a foundation for the impeachment of its own witness, which was overruled, and the witness answered that he did make such a statement, but that the district attorney, his deputy, the chief of police, some detectives, and other gentlemen were present, and all talking to him at the same time, and "they had me pretty well rattled, and I was scared." It is argued that this question, and the evidence sought to be elicited thereby, were incompetent, because the witness had simply denied having any conversation with the defendant at the time referred to, and that a party cannot impeach his own witness

on account of mere negative testimony. As a general rule, this may be conceded (State v. Steeves, 29 Or. 98, 43 Pac. 947); but the testimony of the witness was contradictory of that previously given in behalf of the state. The chief of police testified that at the time of defendant's arrest he voluntarily stated that the next morning after the disappearance of Miss Fitch he had a conversation with the witness Morse, in which reference was made to the time he came home the night before. The testimony of the witness was therefore material and prejudicial to the state, and, under section 838 of the statute (Hill's Ann. Laws), it had a right to lay the foundation for his impeachment by the inquiry as to whether he had at other times made statements inconsistent with his testimony at the trial. It is contended, however, that the state was not surprised by the testimony of the witness, because he had given similar testimony before a coroner's jury. The witness had previously testified before the district attorney, and again before the coroner's jury, and upon this point his testimony was inconsistent and contradictory, and we do not think the state should be denied the right to show that the witness had made statements out of court inconsistent with his testimony therein, on account of evidence he may have given before the

coroner.

Objection was also made to the attempt of the state to impeach the witness on account of contradictory statements he made in reference to the date when the letter offered and admitted in evidence was written by the defendant. But what we have already said disposes of that objection.

In ruling upon objections made to the introduction of testimony, and while the witness Morse was on the stand, the court stated, in the presence of the jury: "This witness is the personal friend of the defendant;" that they roomed and slept together; and that defendant was in the service of the witness' father, and "the presumption would be, as far as that goes, that he is friendly to the defendant in this case." Exception was taken to the remarks of the court in intimating that the witness was antagonistic to the state. The court thereupon remarked: "The court has not said the witness was antagonistic to the state, but simply said he was a roommate of the defendant, and that the defendant was in the employ of the father of the witness. The jury may draw whatever inference they may see fit." Thereafter, during the crossexamination of the witness, the court, addressing defendant's attorney, said: “This witness has shown that he should not be asked leading questions, even on cross-examination. That is subject to the discretion of the court, and the court thinks that this witness is so favorable to your side that leading questions need not be put." Exception was taken to the remark that the wit

ness is "favorable to our side," whereupon the court said: "Very well. The court does not exactly understand whether you are excepting to the ruling, or some statement that the court made." Counsel for the defendant: "I am excepting to the statement in the ruling that this witness is favorable to the defense." The court: "So far as any statement of fact is concerned, the court will withdraw any remark as to the fact concerning this witness, and the jury will disregard any remark of the court as having nothing to do with the case. The court simply rules that the counsel for defendant in this case ought not to ask questions that suggest answers to this witness." It is argued that these comments of the court in reference to the witness constitute an invasion of the province of the jury, and are prejudicial error. It is universally conceded that under our system the jury are the exclusive judges of the credibility of the witness, and it is erfor for the court to assume to determine that question. State v. Lucas, 24 Or. 168, 33 Pac. 666. The remarks of the court, however, were not made to the jury, but in passing upon the competency of evidence. In such a case the court has a right to use such language as is necessary to make its ruling understood, and in this case any error that may have been committed was, in our opinion, cured by the subsequent withdrawal of the objectionable words, and the instruction to the jury to disregard them. Reinhold v. State, 130 Ind. 467, 30 N. E. 606; Ryan v. State, 83 Wis. 486, 53 N. W. 836; Com. v. Ward, 157 Mass. 482, 32 N. E. 663; People v. Northey, 19 Pac. 865, 20 Pac. 129, 77 Cal. 618. Nothing is claimed for the statement that the defendant ought not to be permitted to ask witness leading questions on crossexamination, and the record shows that he was permitted to cross-examine the witness at very great length, and to ask leading questions. If, therefore, it be conceded that the language used by the court in reference to the witness reflected upon his credibility, and was improper, the remark became harmless by reason of the subsequent action of the court in withdrawing the objectionable words. As soon as its attention was called to the matter, and to counsel's position in reference thereto, it very promptly endeavored to correct any erroneous impression the jury may have received therefrom. Moreover, it appears that full instructions were given upon this point, and the jury were undoubtedly made to understand that they were not to be influenced by any remarks of the court in reference to the facts of the case or the credibility of witnesses, and that they were the sole judges in matters of that kind.

It is next urged that the court erred in permitting Mrs. Fitch, the mother of the deceased, to testify that she and her daughter Agnes intended to be absent from home the Saturday following the 17th of July, and

that her daughter Clara was informed of that fact. This evidence was offered and admitted as explanatory of the intimation in the letter alleged to have been written by defendant to the deceased, a few days before her death, that they had made an appointment for Saturday, and as a reason for their selecting that day, and was, we think, competent.

During the cross-examination of the witress Necritz she was asked if, when examined by the district attorney, she was sworn not to disclose what occurred or to repeat her statements to any one else. Objection was made to the question on the ground that it was not proper cross-examination and incompetent, during the argument on which the deputy district attorney made use of the following language: "In what way does this disprove the fact that McDaniel strangled this girl? I think it is pettifogging of the worst kind." Objection was made to this remark, and the court thereupon said, "There is no need to use such language." While the remark of counsel may have been ill advised, it does not appear to have been made for the purpose of prejudicing the jury against the defendant, and the observation of the court in reference thereto had the effect of a direction to the jury to disregard it, and at the proper time they were expressly so instructed.

This witness testified that she was in Holladay Park the evening of July 19th, and saw defendant and the deceased returning towards home, and said that they seemed happy. On redirect examination, she was asked, "What you mean by being 'happy' was that they were interested in each other?" Objection was made thereto as being leading, whereupon the deputy district attorney said to the court: "She is a reluctant witness, and your honor can see that she has been talking with counsel. She is somewhat antagonistic to the state. It is for your honor to pass upon whether I can put leading questions to a witness who appears a little adverse to the interests of the state, and in the face of the fact that she has been talking with counsel for the defendant in this case." Exception was taken to the statement that witness was antagonistic to the state, and that she had been talking with defendant's counsel, whereupon the court ruled: "The jury will be the judge as to whether the testimony is for or against the state, as far as this witness is concerned. The other statements of counsel should be disregarded. Even if she has been talking with the attorneys, it is no objection." This ruling, together with the subsequent instruction to the jury that they should disregard any remarks of counsel for the state not based on evidence, rendered harmless the language used by the deputy district attorney, if it was otherwise improper.

One Chris Luft was called as a witness for the state, and testified, among other things..

that some time between the 1st and 10th of June, 1899, he had a conversation with defendant about Miss Fitch and her people, and asked him what kind of a man Mr. Fitch was, to which he answered, "I think he is a pretty savage old bulldog." Witness was then shown an affidavit, signed by him in the office of the district attorney, and asked if he did not at the time the affidavit was made, and in the presence of the parties there assembled (naming them), say, in addition to. what he had already testified to on the trial in reference to Mr. Fitch, that defendant said "he was afraid to go with her on that account." Objection was made to the question on the ground that it was an attempt by the state to contradict and impeach its own witness. As we have already said, the state is entitled, under the statute, to show that a witness called by it has made statements out of court inconsistent with his present testimony, and, under this rule, the evidence objected to was manifestly competent. The testimony upon this point was material, according to the state's theory of the case, and therefore the denial of the witness that defendant said he was afraid to go with deceased on account of her parents was adverse to the state, and it clearly had a right to call the witness' attention to his previous statements in reference to the matter, not only for the purpose of refreshing his memory, but in order to lay the foundation for his subsequent impeachment, should it be deemed necessary.

Mr. Milton Weidler, secretary of the Portland fire department, whose duty it is to keep the record of the fire alarms, was called as a witness for the prosecution, and testified that the fire bell did not ring on the evening of July 19th up to 12 o'clock midnight; that he based his knowledge upon the fact that the city keeps a register and system of electric apparatus by which every fire alarm is automatically indicated in the office, under which it is impossible for an alarm to be rung without a record being made of it, and thus coming to the knowledge of the witness. Objection was made to the introduction of this testimony, on the ground that the witness was not speaking from personal knowledge, but from that derived from the record of the department. As we understand the law, however, such evidence is competent. Willis v. Lance, 28 Or. 371, 43 Pac. 384, 487; Knott v. Railroad Co., 98 N. C. 73, 3 S. E. 735, 2 Am. St. Rep. 321.

Frank Kerslake testified that on the night of the 19th of July he saw some man go into the residence of Mr. Morse, where defendant lived, but that he could not recognize the party, and did not notice the direction from which he came, although he thought he came from the north; that it was either 10 minutes to 12 or 10 minutes after 12 o'clock. No objection was made to the admission of this testimony, nor motion

to strike it out; but defendant requested the court to direct the jury to disregard it, and the refusal to give such instruction is assigned as error. "The authorities seem to be uniform," says Mr. Justice Wolverton in Bank v. Insurance Co., 33 Or. 237, 52 Pac. 1055, "that a party who has permitted incompetent or irrelevant testimony to go to the jury without seasonable objection will not be entitled as of right to have it withdrawn by instructions when the case is ripe for the jury." So that, if the testimony of Kerslake was in fact incompetent and irrelevant, the defendant waived his right to have it stricken out by not making seasonable objection. It seems to us, however, that the testimony was competent and material, for the reason that it was shown that the only men who were staying at the Morse residence on the night of the 19th of July were A. P. Morse, his son Clay, and the defendant. It was further shown that Mr. Morse and his son were both in the house, and had retired long prior to the time Kerslake asserted he saw some one go in, and hence the evidence was competent as tending to establish the time at which the defendant returned home.

One Nathan Coffman, a witness for the defense, was asked, upon cross-examination. if he had not at a certain time been convicted of drunkenness, and, over the objection of the defendant, was permitted to answer. Subsequently the court, upon reflection, reversed its ruling upon this point, and instructed the jury to disregard any evidence in reference to the witness having been convicted of drunkenness. The admission of such testimony was thus rendered harmless. even if it was erroneous in the first instance.

A. P. Morse, a witness for the defendant, gave evidence to the effect that he heard defendant come home on the night of the 19th at about 11:30; that he heard his footsteps on the stairs, and heard him go into his room and shut the door. On cross-examination he was asked several impeaching questions regarding this testimony, and the statements he had made before the grand jury in reference to the matter. Thereafter, on rebuttal, S. M. Mears, a member of the grand jury, was called, and testified, on his direct examination, that Morse stated before the grand jury that he did not hear the defendant come into the house that night; that he (Morse) went to bed about 9 o'clock, and to sleep immediately; that he woke up once during the night, and heard a squeaking noise on the front steps, but did not know what it was, and went to sleep again, and did not wake up until 5 o'clock in the morning. On cross-examination he was asked if Morse said he heard defendant come upstairs, and answered that he was not sure that specific question was asked Morse, but that the grand jury questioned him particu larly to find out whether he knew when defendant came into the house, and, from his general testimony, "we found out that he

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