State v. Rogoway , 45 Or. 601 ( 1904 )

Mr. Justice Bean

delivered the opinion of the court.

The defendant was convicted of the crime of arson by burning a building in the town of Lebanon occupied in part by his mother as a storeroom. From a judgment sentencing him to the penitentiary, he appeals. The fire occurred on Sunday night or Monday morning, about twelve or one o’clock. The building destroyed was a two-story structure. There were three main rooms on the first floor, two of which were occupied by Jennings Bros, for saloon purposes, and the other by defendant’s mother as'a dry goods store. Back of the saloon was a small cardroom used by the Jennings Bros, in connection with their saloon, separated by a wooden partition from that part of the building occupied by defendant’s mother as a storeroom. Back of the storeroom, and adjoining the cardroom, was a small room occupied by the defendant and his brother-in-law as a sleeping room and for storing boxes and the like. Defendant’s mother had been in business about six weeks at the time of the fire. She did not reside at Lebanon, but the store had been in charge of a son-in-law of hers by the name of Gross. The stock of goods consisted, according to the testimony of the State, principally of shopworn and secondhand articles, that at the time of the fire were not worth to exceed $200, while it was insured for $500, and a previous policy for $600 had been canceled by the insurance company. About three weeke before the fire the defendant came from San Francisco to Lebanon to assist Gross in the store. After his arrival it was their usual practice, as it had been Gross’ before, to drive over to Albany after the week’s business was over on Saturday night, and remain until Monday morning. On the day before the fire, however, for some reason unexplained, Gross went to Albany as usual, but the defendant remained in Lebanon. During Sunday he was back and forth between the place of business of a Mr. Turner, near by, and his mother’s store, and Turner says he noticed he was “a little fidgety.” He was last seen in Turner’s store some time between nine and eleven o’clock Sunday night. About twelve o’clock, or a little after, he rushed out into the street, partly dressed, and gave the alarm of fire. The evidence of parties who’were early at the fire tends to show that it originated in that part of the building occupied, by defendant’s mother, and in the room occupied by him as a sleeping room. The defendant assisted in the endeavor to extinguish the fire as long as his services were of any use, and then engaged a room at a hotel and went to bed.

About four or five o’clock in the morning he was aroused from his sleep, as he testifies,.by two persons, one of whom he recognized as a “ twenty-one ” dealer at Jennings Bros, saloon, and told that he was wanted at the telephone office. Pie immediately got up, dressed, and went to the office, but it was locked. As to what occurred afterward and the circumstances surrounding the alleged confession are thus detailed by the parties present: Andy Jennings says that, about fopr or five o’clock on the morning after the fire, “Me and my brother was standing in front of the St. Charles Hotel. We was standing there talking, wondering what we would do in the morning; watching our goods. We were standing there talking, and I looked down and see Bogoway come out of the door of the St. Charles, and I said, ‘There goes that Bogoway now.’ Pie went down toward the ’phone office. My brother said, ‘ I believe I’ll go down and see where he is going,’ I said, ‘Yes.’ At that time I was on crutches. I could not walk as fast as he could. By the time I got down, Bogoway was coming out of the ’phone office door. My brother met him. I don’t know what was said. My brother got there before I did. * * Just at that time Mr. Irwin — and I would not be sure whether Mr. Irwin and Elkins came together, they came down the street, and my brother said, ‘Bogoway, come walk down the street. I would like to talk to you.’ He said, ‘All right, boys.’ My brother turns around to the other boys and said, ‘ Boys, come walk down with us.’ We all struck out down the street, starting from the ’phone office. * * Down to Lamberson’s corner. * * My brother done the talking to him. He says, ‘ Mr. Bogoway, what do you know about the fire?’ He says, ‘Boys, I don’t know anything about it.’ My brother says to him, ‘You needn’t talk that way. I know better. We are satisfied that you know all about it, and every one in town does, and you might just as well go ahead and tell what you know about this.’ He stood there quite a bit with his head down. My brother kept on talking in that manner. Pretty soon he said, ‘ Boys, I did do that.’ ”

Mr. Irwin says that about four or five o’clock in the morning after the fire he was standing in front of the St. Charles Hotel, and that he saw the defendant coming down the street; that Mr. Andy Jennings came along about that time, and Mr. Luke Jennings was there, and Andy said, “‘Better go down and see what he has to say,’ so we went down. Luke was standing there in front of the telephone office, and Andy and Mr. Elkins ;” and that Luke Jennings asked him to step down from the door, and he refused to come at first, but then walked down, and “Jennings asked us to come along and hear what was said.” He says that no conversation was held while going from the telephone office to Lamberson’s corner. Jennings asked Rogoway what he knew about the fire, and he said that he did not know anything; and Jennings told him that he and everybody in town knew that he burned the store, and Rogoway finally said, “Well, I burned it.” “We asked him if he used oil, and he said he didn’t; he used paper. Asked him why he burned it. He said, ‘For Mr. Gross.’ Asked him what he burned it for. He said, ‘For the insurance.’ Asked him what he got out of it. He said he didn’t know.” Elkins says that about four or five o’clock in the morning he, in company with a man by the name of Lutz, started to go home, and just then he saw Rogoway go by; that Irwin was there, and he said, “ Let’s go down and see where he is going”; that when he and the others came there, Luke Jennings says to the defendant, “Come down here. I want to see you”; and Andy says, “Let’s go down, boys, and see what he has to say”; that after they got around Lamberson’s corner, Luke says, “‘Tell us what you know about this fire,’ and he kind of hung his head. He says, ‘Tell us what you know about this fire.’ He said he didn’t know anything. He said, ‘We know you do, and everybody else does. You might just as well say you did this. We know it.’ He hung his head a bit, and after a little he said he did it.” He also says that Jennings then asked him if he would tell the same story to the recorder, and he said that he would ; that the defendant was then taken to the recorder’s office, where he made the same statement in the presence of the recorder and city marshal, and was by the recorder committed to jail.

1. Each of these witnesses testifies that there was no force or threats used to extort the statement or confession from the defendant, and rio inducement was held out, but that it was a voluntary act on' his part. There is testimony, not necessary to particularize, on behalf of the defendant, tending to show that the confession was extorted from him in pursuance of a previously conceived plan of the Jennings brothers, Irwin and Elkins, and perhaps other parties; but the effect of this testimony, so far as the competency of the confession is concerned, was to contradict the evidence of the State tending to show that such confession was a voluntary act, and was therefore for the consideration of the trial court, in determining whether such confessions should be admitted in evidence. It is the settled law in this State that when, upon the trial of a criminal cause, a confession of the defendant is offered in evidence, it becomes necessary for the trial court to ascertain and determine, preliminary to its admission, whether the confession is competent, and was obtained from the defendant free from the influence of hope or fear exercised by a third person over the prisoner’s mind : State v. Moran, 15 Or. 262 (14 Pac. 419). This is an inquiry addressed to the court, and its determination thereof will not be disturbed on an appeal unless there is clear and manifest error. “Whether the confession of the prisoner was voluntary or not,” says the Supreme Court of New Hampshire in State v. Squires, 48 N. H. 364, erroneously cited as 48 Cal. in the Moran Case, “is purely a question of fact — as much so as the question whether a witness offered to testify was interested or mot, or whether a witness was qualified to testify as an expert, or whether the loss of a paper has been shown, so as to allow the introduction of secondary evidence of its contents. In this and the like cases the judge who tries the cause must decide, although in some instances he may submit the question of fact to the jury. In either case, whether the decision be by the judge alone, or it be also passed upon by the jury, no exception lies, so far as the question is one of fact.” And again, in Fife v. Commonwealth, 29 Pa. 429, 437, Mr. Chief Justice Lewis says: “But the principle is well settled that where the admissibility of evidence depends upon a preliminary question of fact, to be tried by the court, its decision is not to be reversed unless in a case of clear and manifest error. The court that sees and hears the witnesses must b'e presumed to have better means of judging on a question of fact, than the appellate tribunal, where the witnesses are neither seen nor heard, and where it often happens that their testimony is very imperfectly reported.” Now, in this case the evidence for the State tended to show that the alleged confession of the defendant was voluntarily made; and, while this evidence is controverted and contradicted, there is not sufficient in the record to justify this court in saying that the trial court erred in holding that the confession was competent and admissible as testimony. The admissibility of the testimony was for the court, and its credibility and weight were for the jury, and were properly submitted to them.

2. It is also argued that there was no sufficient proof of the corpus delicti to entitle such confession to admission in evidence. “The corpus delicti is made up, * * ” says Mr. Best, “of .two things : First, certain facts forming its basis; and, secondly, the existence of criminal agency as the cause of them”: Best, Evidence (ed. 1883), § 442. See, also, 7 Am. & Eng. Enc. Law (2 ed.), 861; 6 Am. & Eng. Enc. Law (2 ed.), 582, “Confessions,” and numerous cases cited in the notes. Where the fact forming the basis of the corpus delicti is proven or admitted, the criminal agency may be shown by circumstantial evidence ; and in this connection a distinction is to be made between the evidence which would justify a conviction, and that degree of proof of criminal agency necessary to let in evidence of the confessions or admissions of the defendant. To justify a conviction, of course, the jury must be satisfied of the defendant’s guilt beyond a reasonable doubt, and of every fact necessary to constitute the offense; but it is not necessary, after the fact forming the basis of the corpus delicti is shown, that the evidence of the criminal agency should be of that conclusive character, in order to justify the admission of defendant’s confession. Mr. Justice Clifford, in United States v. Williams, 1 Cliff. 5 (Fed. Cas. No. 16707), speaking to this question, and commenting on the language used in Greenleaf’s Evidence, said : “Considering the language employed by that author, it is somewhat doubtful how far he would carry the doctrine; and, if it is to the extent that the corpus delicti must be fully proved independently of the confession, we are not prepared to adopt it, as in that view the admission of the confession would be useless, except to prove Ihe agency of the accused, and would operate as an exclusion of the confession for any other purpose, whereas, if freely and voluntarily made, it is clearly admissible as evidence in support of any element in the charge to which it ajiplies. Full proof of the body of the crime — the corpus delicti — independently of the confession is not required, says Nelson, C. J., in People v. Badgley, 16 Wend. 59, by any of the cases, and in many of them slight corroborating facts were held sufficient.” Mr. Justice Paxson, in Gray v. Commonwealth, 101 Pa. 380 (47 Am. Rep. 733), says: “The true rule in such cases is believed to be this: When the commonwealth has given sufficient evidence of the corpus delicti to entitle the case to go to the jury, it is competent to show a confession made by the prisoner, connecting him with the crime.” Sam v. State, 33 Miss. 347, was a prosecution for arson, and the objection was made that the corpus delicti was not sufficiently proven to warrant an admission of the confessions of the prisoner. The court said: “ The main fact necessary to be established as the basis of the prosecution was that the house had been burned, for without that there could be no guilt in any one. After proof of that fact, it was necessary to prove how it was done, and by whom; and these particulars could be established by any evidence which was competent in law, and sufficient in its force to satisfy the mind. The rule with regard to proof of the corpus delicti, apart from the mere confessions of the accused, proceeds upon the reason that the general fact, without which there could be no guilt either in the accused or in any one else, must be established before any one could be convicted of the perpetration of the alleged criminal act which caused it, as in cases of homicide the death must be shown, in larceny it must be proved that the goods were lost by the owner, and in arson that the house had been burned, for otherwise the accused might he convicted of murder when the person alleged to be murdered was alive, or of larceny when the owner had not lost the goods, or of arson when the house was not burned. But when the general fact is proved the foundation is laid, and it is competent to show by any legal and sufficient evidence how and by whom the act was committed, and that it was done criminally.”

The building described in the indictment is conceded to have been burned, and there were, we think, sufficient circumstances tending to show that it was of incendiary origin to justify the admission of the confessions of the defendant. The goods in the building belonged to his mother; they were overinsured; he remained in Lebanon over the Sunday before the fire, contrary to his usual custom; he was noticed to be “ fidgety ” and uneasy the day before the fire; and after the fire he told one witness that the stovepipe fell down ; another, that after retiring he read and smoked for a time, and then laid his cigar on the table by his bed, and the next thing he knew he was awakened by smoke and ñames; thus leaving the inference that the fire may have originated from the lighted cigar. The circumstances were competent as tending to show a criminal agency, and were for the determination of the jury.

^* The remaining error is based on the action of the trial court in limiting the argument of counsel on either side to one hour. The time which may be occupied by counsel in the argument of a cause to the jury rests in the sound discretion of the trial court, and the appellate court will not interfere therewith unless there was an erroneous exercise of such discretion : Hurst v. Burnside, 12 Or. 520 (8 Pac. 888); 2 Ene. Pl. & Pr. 702; 12 Cyc. 568. The recofid before us does not disclose any abuse of discretion. It simply states that at the close of the testimony the court limited the time for argument to the jury to one hour on each side, to which ruling the defendant, by his counsel, then and there excepted. This is not enough. It is true that all the testimony is in the record, from which it would seem that an hour on each side was a very short time in which intelligently to present the case to the jury; but there may have been ample reasons why the trial court could not, under the circumstances then existing and the business before the court, permit a longer time.*

There are some other minor points in the case, but none of them are worthy of comment.

It follows from these views that there was no error in the record, and the judgment of the court below must be affirmed.

Decided 19 June, 1905.