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Appeal from Superior Court, Lewis Coun- , We think this was manifestly the correct ty; A. E. Rice, Judge.

ruling at the time. The conversations were Herbert Dilley and others were convicted certainly admissible as against Mrs. Dilley; of robbery, and they appeal. Afirmed. and, as the state could not introduce its Maurice A. Langhorne and Forney & Pond

whole chain of evidence at one time, it er, for appellants. J. R. Bixton and A. J.

remained to be seen whether such facts Falknor, for the State.

would appear as would make it admissible

against the co-appellants. The parties were HADLEY, J. The defendants in this cause

being tried jointly, and such evidence as were jointly charged with the crime of rob

was admissible against one of them was bery, and were also jointly tried. A verdict properly admitted, its applicability to the

others to be thereafter controlled by proper of guilty was returned. Each defendant was sentenced to serve a term of six years' im

instructions when all the evidence was inprisonment in the state penitentiary, and they

troduced. For convenience the acts and have all appealed.

declarations of one are admitted before They first complain that neither they nor suficient proof of a conspiracy is given; the their attorneys were furnished with a copy

state undertaking to furnish such proof of the information, as required by section

at a subsequent stage of the cause. 1 Green6880, Ballinger's Ann. Codes & St. No de

leaf on Evidence (16th Ed.) § 184a ; State mand or request was made for a copy of the

v. Winner, 17 Kan. 298; Underhill on Crim. information, and no objection was made to

Ev. § 491. going to trial without it. Appellants had ap

Complaint is, however, made that suffipeared to the information both by demurrer

cient facts at no time appeared to make and by pleas. They had demanded separate these conversations admissible as against trials and afterwards withdrawn the demand, the co-appellants, and that the court reThey had announced themselves ready for

fused to so instruct the jury. There was trial, and then merely stated that they

testimony as to the following facts: The wished the record to show that they had not

appellants Dilley were husband and wife, been served with a copy of the information.

and appellant Carland was an acquaintance Having announced themselves ready for trial

of the two. The Dilleys lived in the city of when the case was called, and not having Centralia in a sparsely populated district, actually objected to going to trial without

about a mile from the city hall. The prosethe copy, they cannot now be heard to urge,

cuting witness, Alderman, was at that time after conviction, that they were prejudiced. night marshal of said city. On the night Diffin v. State (Tex. Cr. App.) 63 S. W. 128;

of January 23, 1906, Alderman was in atState v. Green, 66 Mo. 631; State v. Jack

tendance at a meeting of the city council son, 12 La. Ann. 679.

at the city hall. About 10 o'clock he was The theory of the state in the presentation

called outside of the room by a messenger of its testimony was that a conspiracy exist

sent to him by Mrs. Dilley. On going out he ed between all of the appellants to rob the saw , Mrs. Dilley, who had with her her complaining witness, and it is urged by ap- little baby in a baby carriage. She told pellants that the court erred in admitting evi- him her husband was away at work at dence concerning the acts and declarations Martin's mill, and that she desired Alderman of one appellant committed or made when not to accompany her home. He told her that in the presence of the others. It is conceded Mr. McFarland, who was present and who that direct and positive evidence of a formal was the messenger above mentioned, would agreement between conspirators is not re- go with her, as he, Alderman, desired to quired, and that a conspiracy is usually es- remain at the meeting of the city council. tablished by proof of facts and circum- To this she objected, saying she did not stances from which an unlawful combination know McFarland, and that she wished may be inferred. It is, however, urged that Alderman to go with her. Thereupon Althere was not proof of facts and circum- derman consented to go, and did go with stances in this case from which a conspiracy her to her home. The night was rainy, and could be inferred. Objections were made to a part of the way is described as a "lonely evidence concerning conversations between walk." The road for some distance was appellant Alice Dilley and the prosecuting along the railroad track and many side witness, not occurring in the presence of

the presence of tracks crowded with freight cars, a place the other appellants. When ruling upon the which Alderman said he regarded as danadmission of this testimony, the court said: gerous for a woman to be alone at night. I think I will rule this way: That her Soon after they started Mrs. Dilley stepped statements made at that time, if she made into a restaurant, as she said, to get a any, are competent evidence against her at drink of water. Alderman remained outside this time, but as to whether or not it con- and did not watch her. He does not know stitutes any evidence against the other two what she did during the one or two mindefendants depends upon whether or not utes she was gone. There was also evithe proof shows that there was concerted dence that her husband and Carland were action between all three of the defendants." together around town that evening, and that Dilley was not working at Martin's at me with the knife, hollowing te Red mill. After she came out of the restaurant to come on too. Well, they had a scuffle she and Alderman proceeded; he wheeling just a short time with me. They made serthe baby carriage after they reached the eral slashes at me, cut me over the eye in railroad track. About that time she asked the head here, made a slash at my neck, and him if he had sold his livery barn. He I grabbed the knife with my left hand. told her he had, and she then asked if he It just grazed my neck, and just cut through did not get a pretty good price, to which the hide. It was a butcher knife. It cut he replied that he received a fair price. all the leaders in this hand. I threw out She also asked him where he carried his gun, my hand and caught the knife, but I could and he told her that he carried it in his not hold it, and it dropped to the floor, anů. right-hand outside coat pocket. As they Mrs. Dilley jumps and grabs the knife. approached her house, she said she was hollowing, says: 'Don't kill him.' And Dilafraid to go into the house alone, as there ; ley jumps back and throws the gun on me had been a number of "hoboes” around, again and says: 'If you make a more, I and asked if he would go in with her. He will kill you.' * * * Then he

says: consented to do so. She opened the door anil "There is just one way that you can get out he went in, taking the baby carriage up

of this.' And I says: 'Boys, it is up to the three steps into the house. She asked you.' He says: "Dig up $200.' I says: 'I him to sit down, when he told her he was ; haven't got it. You went through my clothes in a hurry to get back, but that he would and you see I haven't got it in my clothes ; like a drink of water. She said she would but, if you will let me come down town, get him a drink, and he sat down to wait I think I can get you the money.' He until she did so. When they entered the | wanted to know where I could get it, and house a small burning lamp was sitting to I told him I thought at McGrail's. He the left of the door, which she immediately says, 'All right.' They let me put on my removed to a stand across in another cor

clothes except my pants.

my pants. They took the ner of the room. After sitting for a moment suspenders off these pants, and they gave or two he heard the bedroom door open, me a pair of Dilley's pants. Red put the which had before stood ajar about two suspenderson for me and fixed them, and inches, and Dilles and Carland rushed from then we started down town, with Carland the room. The door was about four feet holding on to my arm and Dilley walking from where he sat, and the lamp above men- behind me, and said, 'If you make a crooked tioned was near his location before it was step, if you make any move, I will kill removed. They hit him with their fists and you just the same as I would a dog. In held him, and Mrs. Dilley came rushing going down he said, 'You sold your barn. from behind some hanging curtains, and, Did you get a pretty good price for it?' putting her hand into his outside coat pock- I says: 'I got a fair price for it.'

He says: et, grabbed his gun and said, "Boys, I have 'Can't you give me a check?' And I said, got his gun." Dilley took the gun and 'I have got no check, and I have got no drew it upon Alderman, saying: "I have money. I cannot give you a check.' And got you. I will fix you for running a round he says: 'Well, you dig it up somewhere.' with my woman.” Alderman further says: And I says: 'I guess I can get it all right "Then he said: 'Do you know what I am as soon as I can get down town.' We went going to do with you?' And I said, 'No.' on down to town and into MCGrail's saloon, He says: "Take off that coat and vest,' and and Tom was in there." McGrail, the proI said: 'I would not get rash or do any- prietor of the saloon, expressed surprise at thing like that.' And he says: 'Take it off, the appearance of Alderman, and asked or I will shoot your heart out in a minute.' him what was the trouble. Alderman askI took it off, thinking I might get some show ed him if he could give him $200,"at the in taking it off. I had a billie in my pock- same time giving him the wink." McGrail et-a club—and I thought I might get insisted upon talking to Alderman alone in some show to get at that, but he held the another room. After he had told McGrail gun on me very close and told me, 'If you what had occurred, the latter, with Aldermake a move, I will kill you.' So I takes man following him, returned to the saloon, them off and Carland takes the clothes and and thereupon both Dilley and Carland ran went through them as I takes them off.” away. Later during that night all three After they required him to remove his of the appellants were arrested at the Dilclothes, and after they had taken ererything ley home, and were all sleeping in the same from his pockets, Alderman says: "He said: room. 'Do you know what I am going to do with We have made the above extended stateyou?' and I said, 'Yo.' Then with an oath ment of facts appearing in evidence in orhe said: 'I am going to make you go down der to show whether there were concurring town just in the shape that you are now facts to indicate a concerted purpose bein.' And I said: 'No; that is where you are tween all the appellants to rob the prosecutwrong. You can't do that. You may kill me, ing witness, and such facts as were sufficient but you cannot do that.' With that he came for submission to the jury upon that subject. We believe the statement of the evidence the person addressed, but there was no itself shows that there was sufficient con- other direct proof that such correspondence certed action shown for submission to the had taken place. Mrs. Dilley was confinjury, and that no further argument is re- ed alone in an upper room in the jail buildquired upon the subject. That the complain- ing, her co-appellants being confined below. ing witness was robbed there could have The letter was seen falling directly from been no doubt under the evidence submitted the window of Mrs. Dilley's room, and was by the state. Valuable property was taken immediately secured and kept until the time from him forcibly, by violence, and by put- of the trial. It was not signed by any ting in fear. All the appellants actively par- one, and there was no identification of the ticipated in the consummated act, and it handwriting. Objection was made to it in was a question for the jury whether the behalf of Mrs. Dilley, on the ground that the acts and declarations of Mrs. Dilley were handwriting had not been proved. However, in furtherance of a common design. Whart- it fell directly from her room, and it was on's Crim. Ev. (9th Ed.) 8 698, and cases shown that there was no other person there cited. It was not error, therefore, to admit at the time. We think these circumstances evidence of the acts and declarations of were sufficient to connect her with it withMrs. Dilley as against the other appellants, out an actual identification of the handwritin view of all the evidence. And it was ing, and that it was properly admissible as not error to refuse to instruct the jury un- against her. conditionally that such acts and declara- Further objection was made to the letter tions could in no event be considered against in behalf of Dilley and Carland, on the her co-appellants.

ground that it had not been shown that comIt is, however, urged that in any event ! munication was invited by them; that as to the court erred in admitting in evidence a them it was hearsay and incompetent, for certain letter, and especially in permitting the reason that, if there was any conspiracy, the jury to consider it without an instruction it was closed before the letter was written; to exclude it from their consideration except and that the admissions or declarations of as against Mrs. Dilley. It was the theory of a co-conspirator made after the termination the state that the letter was written by Mrs. of the conspiracy, not in the presence of the Dilley to be received by her husband. It others, are inadmissible. . The court ruled began as if especially intended for "Kid," that the letter should be received at that who is frequently addressed in the second time as evidence against Mrs. Dilley, and at person, and it also made reference to "Red,"; the same time instructed the jury that it was these being nicknames by which Dilley and not to be considered as evidence against the Carland were, respectively, called. The con- others, unless they should find from all the tents showed without doubt that the writer evidence that about that time a correspondreferred to what had occurred between Mrs. ence or attempted correspondence was going Dilley and Alderman on the night of the on between the appellants, and that the two alleged robbery, and also to what occurred male appellants were concerned therein, in at the Dilley home when all the appellants which case it would become evidence against were present. It contains suggestions as to all three of them. It is urged that there was what statements should be made in order to at no time proof of such correspondence other harmonize with statements which had been than the letter itself, and that the court made by the writer. The references to the should in any event at the close of the evifirst person as the writer could have been to dence have expressly excluded the letter no other than Mrs. Dilley and to her rela- from the jury's consideration as against Diltion to the circumstances heretofore detailed. ley and Carland. We think sufficient facts It contains suggestions that the writer had appeared in evidence for submission to the told others that "he," not naming any one, jury as to a common design or conspiracy, had sought improper relations with her, and not only to rob the complaining witness, but that "you boys came out of that closet, and also to fabricate a defense as an excuse for that you boys were in there unknown to me, the conduct of appellants. The evidence of and you want to say that Red was sitting what occurred at the Dilley home showed a up by the stove when they came that morning purpose to assert that Alderman had acafter us." It also contained the following: companied Mrs. Dilley to her home with an "Kid, don't get mad over the note I sent improper purpose for which her husband you this morning. Kid, I told them that I sought reparation, and that theory was maindid not know there was any knife in it tained at the trial by the appellants. If such until it was all over with and I picked it up was the conspiracy, it did not end with the off the floor myself, and Red picked the commission of the alleged robbery, but it exgun up. * * * Kid, don't say anything to

tended to the time of the trial, and was pendthat nigger now for he will switch on us ing when the letter in question was written, writing these notes. Keep still and write On that theory it was not error for the letter me notes just the same.” The letter was to go to the jury as against all the appellong, and contains matter unfit for inser- lants, even though the court may have subtion here. It will be seen that the letter mitted it to them on the theory that there referred to a previous correspondence with was evidence of an actual correspondence. In cases where the conspiracy comprehends lants. The theory of the defense was sufnot only the actual offense committed, but ficiently covered by the instructions given, from the beginning extends to and includes and we think appellants' rights were not a common design or scheme to fabricate a prejudiced. We find no prejudicial error un. defense, it is held that the conspiracy con- der other minor assignments, and, having distinues to exist even after the principal act is cussed at length the principal questions raisdone, and that the declarations of one co- ed on the appeal, we believe it is unnecessary conspirator made under such circumstances to discuss in detail the numerous assignand in furtherance of such design are admis- ments of error. sible as against all, though made subse The judgment is affirmed. quent to the principal act. In Miller v. Dayton (Iowa) 10 N. W. 814, the court said:

MOUNT, C. J., and FULLERTON, ROOT, “It is claimed that, if any conspiracy was

CROW, DUNBAR, and RUDKIN, JJ., concur. entered into, it terminated with the killing of Miller, and that the evidence of any act

(48 Or. 416)

STATE v. WHITE or declaration of Jefferson Dayton, subsequently to that time, is inadmissible. If, as

(Supreme Court of Oregon. Oct. 23, 1906.)

1. INDICTMENT-INFORMATION-DUPLICITY. claimed, however, the conspiracy also bad

Under B. & C. Comp. $ 1774, subjecting for its purpose to prevent suspicion from at

to punishment every person who without lawful taching to the defendant, and to enable him authority forcibly seizes and confines another, to escape justice, the objects of the conspi. or inveigles or kidnaps another, with intent to

send him out of the state against his will, an racy were not fully completed when Miller

information charging that defendant did forcibly was killed. + * Whatever the defend- seize and confine and did inveigle and kidnap ant himself may have done, in the fabrica- another charges the single crime of kidnapping. tion of evidence, to prevent suspicion from

[Ed. Note.-For cases in point, see vol. 27,

Cent. Dig. Indictment and Information, 88 381attaching to him, or to avoid a prosecution,

390.) was proper to be shown to the jury, and

2. JURY - EXCUSING JURORS - DISCRETION OF considered by them.

• And, if an- COURT- PREJUDICE TO DEFENDANT. other person conspired with him to assist in Where the court excused certain jurors the accomplishment of this purpose, his acts after acceptance by the parties, and after deand declarations, in furtherance of the com

fendant had voluntarily exhausted his peremp

tory challenges, because of relationship to demon design, are, we think, admissible.” See,

fendant's counsel and by marriage to defendalso, People v. Mol (Mich.) 100 N. W. 913, ant, and because of interest in another pending 68 L. R. A. 871; Scott v. State, 30 Ala. 503. case, it did not abuse its discretion because de

fendant was debarred from exercising his priviThe letter was admissible as tending to es

lege of peremptorily challenging the jurors tablish the existence of a conspiracy, not drawn in their stead. only to rob the complaining witness, but also [Ed. Note.--For cases in point, see vol. 31, to fabricate testimony to conform to a theory

Cent. Dig. Jury, 88 531-540.] for defense. The letter itself was not suf- 3. CRIMINAL LAW-ADMISSION OF EVIDENCE

PREJUDICE. ficient to establish a conspiracy, but, when

In a prosecution for kidnapping, where the taken in connection with the other evidence

jury were instructed at defendant's request that in relation to an actual robbery, it was com- he was not charged with enticing seamen and petent as tending to show the general design the jury could not find him guilty of such of

fense, he was not prejudiced by evidence tending of the conspirators. There was sufficient

to prove such crime. prima facie evidence of a conspiracy, and it

(Ed. Note.--For cases in point, see vol. 15, then became a question for the jury to say Cent. Dig. Criminal Law, 3141.] whether there was in fact a conspiracy. "It

4. WITNESSES – IMPEACHMENT – PARTICULAR is insisted that the court erred, in the in- WRONGFUL Acts. struction above set out, in leaving the jury to Under B. & C. Comp. $ 852, providing that determine whether a conspiracy existed. It

a witness may not be impeached by evidence of

particular wrongful acts, testimony regarding is claimed that that question must be deter- the desertion of certain witnesses from a ship mined by the court. It is true the court is inadmissible. must determine, in the first instance, whether [Ed. Note.-For cases in point, see vol. 50, there is sufficient prima facie evidence of a

Cent. Dig. Witnesses, $ 1125.) conspiracy to justify the submission to the 5. CRIMINAL LAW EVIDENCE - EXPERTS

COMPETENCY. jury of the acts and declarations of an al

A witness, who has been a practicing phyleged conspirator as evidence against his fel

sician and surgeon for 17 years, and who has lows. But ultimately it is for the jury to de described a person's bodily condition, may give termine whether, upon the whole testimony,

his opinion as an expert as to the cause of such

condition. any conspiracy has been shown; and, if they

[Ed. Note.For cases in point, see vol. 14, find that no conspiracy has been established,

Cent. Dig. Criminal Law, 88 1067-1070.] it is then their duty not to consider the acts

6. SAME - HEARSAY EVIDENCE – REFUSAL TO and declarations which have been admitted

STRIKE-PREJUDICE. of a supposed conspirator." Miller v. Day. In a prosecution for kidnapping, the refusal ton, supra.

to strike out as hearsay testimony of the perA number of errors are assigned upon the

son kidnapped as to what third persons stated

defendant had stated to them was not prejuInstructions given to the jury, and upon the dicial to defendant, where one of such third refusal to instruct as requested by the appel- *Rehearing denied January 12, 1907.

persons testified to what defendant had told street. This occurred about 11 o'clock in them and it was substantially the same as the

the forenoon. Shortly afterwards these sailhearsay testimony.

ors met Grant and Harry White, and in [Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Criminal Law, $ 3138.j

answer to an inquiry told them that they, 7. SAME-DECLARATIONS BY THIRD PERSONS

the sailors, had signed with the Riversdale, ADMISSIBILITY.

and Grant then told them to keep away In a prosecution for kidnapping a seaman, from the ship, and Cyren says: “He told statements by a third person as to what de

us that three or four times to keep away fendant said he would do to certain persons if they attempted to board a certain ship were

from the ship. Harry White heard that”— properly admitted over objection that defendant and also that "the two White brothers had did not hear them, where defendant heard the

said that they would give us a good threshimportant statements, though he did not hear the preliminary conversation, and afterward

ing if we went on that ship," and that Harmade practically the same statements.

ry White was there when Grant made the [Ed. Note.--For cases in point, see vol. 14, last statement. About half an hour later Cent. Dig. Criminal Law, $$ 968-972.)

Cyren and Pearson again met Grant and S. SAME-STATEMENTS OF A CO-CONSPIRATOR IIarry White, when White said, as testified -PROOF OF CONSPIRACY-PRIMA FACIE Ev

by Cyren: "He was going to give us IDENCE. In a prosecution for kidnapping, state

if we went on that ship. He said we had ments by a witness and one of the defendants no business to sign on her, because we were as to what defendants said they would do to not in their house-not any of their boardcertain persons if they attempted to board a ship, were properly admitted as the statements

ing houses. IIe said we did not belong to of co-conspirators, where the evidence prima

their ships.” After noon of that day the facie tended to prove the existence of a con- three sailors, Buren, Cyren, and Pearson, spiracy.

hired an express wagon to haul their [Ed. Note-For cases in point, see vol. 14, Cent. Dig. Criminal Law, $ 989, 1012.]

"gear,” as one of them termed his baggage,


lying, and as they approached the dock, The court did not abuse its discretion un

walking ahead of the express wagon, James der B. & C. Comp. $ 1397, in refusing to dis- White was seen there in company with three charge codefendants that they might testify for

sailors, who immediately set upon them and defendant; there being sufficient evidence to sustain the ruling.

knocked Buren down and trampled him, and [Ed. Note.-For cases in point, see vol. 50,

assaulted and threw stones at Cyren and Cent. Dig. Witnesses, $$ 476-490.1

Pearson, who succeeded in escaping to the 10. CRIMINAL LAW-INSTRUCTIONS-FAILURE ship. During the trouble White stood by

OF CODEFENDANT TO TESTIFY FOR DEFEND- and told the assailants to "give him hell, ANT.

boys." After Buren had been beaten, kickThe court may properly refuse an instruction that codefendants were disqualified, under

ed, jumped upon, and generally misused, B. & C. Comp. $ 1396, from testifying for de- White ordered the assaulting sailors to put fendant, and the jury should draw no unfavor

him in the express wagon, and had him able inferences from the fact that they were not witnesses for him.

taken to the defendants' boarding house.

When defendant reached the house, Buren Appeal from Circuit Court, Multnomah

was there sitting in a chair, and Harry County ; Arthur L. Frazer, Judge.

White and Smith, the other defendants, James White was convicted of kidnapping,

were there also, and also the three assaultand he appeals. Affirmed.

ing sailors, who had come from the dock. In February, 1903, the defendants were One of the White brothers paid the expresspartners in conducting a sailor boarding man for hauling Buren to the house. Buren house in Portland, Or., and also engaged in was given a drink of whisky by one of the furnishing crews to vessels in that port. On White brothers-he did not know which the 11th of that month the prosecuting wit- and then was taken upstairs and put to bed ness, Buren, a sailor, and two sailor friends, by their order. Testifying as to what occurCyren and Pearson, were in Portland, but red afterwards, Buren said: "I got anothwere not staying at the boarding house of the er whisky up there, but do not know who defendants. In the forenoon of that day brought it. * * * A little before dark they went to the British consul's office and that same night James White came to the signed shipping articles with the ship Riv- room and asked me if I could go to Vanersdale, then at anchor on the east side of couver. I told him I was sick and could not the Willamette river. As they were going go; and they said they would see about it away from the office of the consul, the de- in the morning if I was better. He said the fendants, Harry White and Smith, and one policemen were looking for me, and the deJack Grant, who was also interested in the tectives would put me in jail and take me sailor boarding house business and in fur- aboard that ship when it was ready to go, nishing crews for ships, in which latter and I would be safer in Vancouver. transactions he prorated with the defend- It was after the whisky had been brought ants, were all seen standing on a corner op- to me in the bedroom. While I was upposite the consul's office, and Ilarry White stairs in the bedroom my stomach and head was seen to walk rapidly away down Third | were in bad condition. * * * I was sick

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