Daily capital journal. (Salem, Oregon) 1903-1919, 1911-09-19

wards, however, the state produced
another witness who, at at subse-
quent time, within a day or two af-
ter the first confession, interrogated
the defendant about the crime and re-
/ ceiyed from him a similar statement.
/ This court in that case held that the
exclusion of the original testimony
| by the circuit court was proper and
furthermore that it was wrong to ad-
NIT the testimony of the subsequent
confession without a further show
ing that the influence Of the first
statement that it would be better for
the defendant to admit the whole
thing had been overcome so as to es-
tablish that the subsequent confess
sion had been made voluntarily The
principle announced by the court in
that case has never been disturbed
in this state. 1t is supported by a
long line Of authorities from almost
every state in the union and Is de-
claratOry Of the common law on that
subject
1t is cOntended, however by the
prosecution, that the truth of the
defendants so-called confession was
demonstrated by subsequent investi-
cation showing, for instance, that the
body was weighted with stones as
described by the defendant; that
there was but one shot in the body
and that there were blood stains on
the ferry landing where he said he
stole the boat and dragged the body
into 1t and the like. 1t is a principle
well established by authority that
however the existence of independent
facts inculpating the accused are as
certained, still such facts may be
given in evidence aliunde and with
this principle we have no dispute;
but in no case that we have discov-
cred, after careful research, is It laid
down that a confession of guilt as
such extorted from the defendant un-
der the influence of promises can be
admitted in evidence against him.
The cases cited by the state are in
effect that these Independent facts
ascertained by the so-called confess
slons may be detailed in evidence by
witnesses to whose knowledge they
have come through their own inves-
tigation and some cases go so far
that in a general way 1t may be stat
ed In evidence that these facts were
discovered after conversations with
and in pursuance of information Civ
en- by the defendant; but none of
them go so far as to say that the
so called confession itself can be
given in evidence in toto.
In the case at bar, however, the
prosecution, with the sanction of the
trial court, went beyond even the lat
ter class Of cases and gave in evil
dence not only statements of the de-
fendant as to where the body might
be found and the like, but also his
direct confession of having shot the
decedent In our judgment the bor-
der line of sound legal principle is
reached when witness is allowed to
state in general terms that he ascer-
tanned the facts and circumstances
by his own investigation prompted bv
statements of the defendant. TO 90
further and admit direct confessions
OF guilt obtained by either threats or
promises designed to influence the
prisoner, is to put a premium on the
INSCRIPTIONS methods of over zeal
Gus detectives and to take a step
backward towards the thumb screw
and the rack as a means of procur-
ing testimony. State " Garvey, 26
Am Rep. 1913; Biscoe V. State. 81 Md.
.; Duffy " People, 26 n. Y. 5SS;
Gregg v State, 106 Ala A; State V.
Wood 20 l., r. A. (N s. 1872.
1t Is also urged by the prosecution
that, as the preliminary question
about the admissibility of the con-
fession, depending upon whether it
was voluntry or not, was one of fact
to be decided by the trial court. we
cannot disturb its finding on that
point This position might be well
taken II there were any dispute in
the testimony on that issue but there
is no such dispute, The fact of the
concession being induced by a prom
Use of protection made to the defen-
dant and the eXhortation of his can
tor that 1t would be better for him
to confess appears from the testi-
mony for the state and the defen-
dant can well avail himself of de-
murrer to the evidence for the state
on that ancillary issue.
1t Is further urged by the defen-
dant that the circuit court erred in
the manner of receiving expert testi-
mony in answer to hypothetical ques-
lions propounded by the prosecution. !
Ihere was evidence on behalf of the
defendant on the subject of his in |
sanity Several of his acquaintances |
gave their opinions in that direction
TO the effect that he was not of sound !
mlnd and several of them assigned as
reasons therefor certain detached
foolish actions Of the defendant. One
stated, for illustration, that in fiji
or anger the defendant undertook 10 |
stamp IN the bottom of boat and, /
IallhS IN that took an oar and /
punched a hole in the boat and al |
lowed 1t to sink. Another gave in
stances of his fondness for dogs and /
a gun and said in substance that the !
defendant could not talk long at n .
time without getting on to the sub |
ject of dogs.
me prosecution called, as an ex- !
pert, in rebuttal Dr. o. f. Tamiesie /
one of the physicians at the state
hospital for insane. To this witness
the prosecutor would state one of
tnese instances given as reasons by |
lhe witnesses for the defense and
would ask him il that was an evil
dence of insanity and so on, one by
one through the category Of separ-
ate ana detached occurrences men
toned by the witnesses for the de-
fenSe, In substance the uniform an
swer to these questions was that
such .An instance tAken nlnnn mnnld