Daily capital journal. (Salem, Oregon) 1903-1919, 1911-09-30
State Of Oregon '. Meyers, Marion
County.

The State Of Oregon, plaintln, v.
George Meyers, defendant. Appeal
from the circuit court for Marion
county The Hon. Percy Kelly,
Judge. Argued and submitted Sep
tember 3, 1911. w. c. Winsolw, dep
uty district attorney, John H. Nc
Nary. district attorney on the brietD,
attorney for plaintif. p. H. Darcy,
s. T. Richardson (W. NJ. Kaiser on
the brieO, attorneys for defendant.
Bean, ]. Affirmed.
Decided, September 26, 1911.
The defendant, George Meyers, was
indicted by the grand jury of Marion
county for the crime of murder in the
first degree He was tried. convicted
of murder in the second degree, and
sentenced. Upon appeal to this
court the judgment was reversed, and
the case remanded for a new trial.
Estate V. Meyers, 10 Pac., 407) AS
the result OF a second trial defendant
was found guilty OF the crime OF
manslaughter, and from a judgment,
sentencing him to the penitentiary
for an indeterminate period, he ap-
peals, alleging errors, the first Of
which is that the court erred in per-
hitting, over the objection of coun-
sci for defense, the official reporter,
reporting the testimony at the first
trial, to read to the jury the notes of
the testimony OF Arthur Meyers,
brother of defendant, given at the
former trial.
Bean, ]. Counsel for defendant
contends that no foundation was laid
for the introduction Of the reporters
notes of Arthur Meyers testimony.
For the purpose of laying such
foundation, the state produhed as a
witness Mr.. II, p. Minto, sheriff of
Marion county, whose testimony in
regard thereto was substantially as
follows: That he was acquainted
with Arthur Meyers; that he had
subpoena for him, which was pro-
duced; and he endeavored without
success to find him within the state,
and upon inquiry found his residence
was Toppenish, Wash, where, he
was informed, he was night watch
man; that he forwarded the subpoena
to Toppenish, which was there served
upon Arthur Meyers by the Toppen-
ish chief of police The sheriff, upon
cross-examinatlon stated he under
stood from hearsay that the witness
was in Portland in attendance at his
fathers funeral but that he was not
making his home there that he
claimed to be living in Washington,
where he claimed to be deputy sher-
iff 1t appears the subpoena was
served December 1st, 1910. Upon be-
Ing asked Now during the past
week or 10 days. during the funeral
of Mr. Meyers father, you understood
Mr., Myers was in Portland" A. 81
understood he had been. | did not
understand he was there at that
time. / understood since he was
there at the funeral. | had served
this subpoena and / had filed II with
the clerk to be preserved here, and
! didn't know tha Arthur Meyers
was at his fathers funeral or in
Portland until afterwards, and | only
know that from hearsay."
Mrs, Ferguson, called by the state,
testified that she reported the testi-
mony at the first trial, taking the tes-
timony Of Arthur Meyers at that time;
that she did not have the transcript
of the testimony, but had the original
notes which were correct. Where
upon, over the objection of counsel
for the defendant, she was permitted
to read such notes of Arthur Meyers
testimony, which in substance were
as follows: That he was, on the
night OF the homicide, occupying
in a building owned by his father;
that his brother, the defendant came
to his room between II and | o'clock
at night, that they had some words
Defendant had his feet on some high
ly .prized cushions. The witness
asked him to remove his feet there
from and he would not do it; he
tried to reason with him and he got
funny He told him he would eth
er have to take his feet down or he
would go out and get somebody to
make him do so, stating: I'VE wran-
gled considerable | went down on
the street ] walked up and down
the street few times and didn't see
anybody ! walked down by the
White House restaurant. Mr.. Eek
hart was in there. motioned for
him to come out, | says George is
up In my room, and cannot do any
thing with him. | would like for you
to come up there and take him out.
! says, I don't want him arrested. /
just want him taken out He went
up there with me and George was
asleep He woke him up and says.
George, Arthur wants you out of the
room You had better get up and put
ON your coat and come on. by the
way ! have orders TO arrest you ON
sight spoke up and asked what
he was arrested for. He said he
didn't know; that Doc Gibson told
him TO arrest him when he saw him |
George said all right he would go
lie went over and got his coat and |
started out with him." Q Where |
was his coat Hanging up on
the partition. The room Is a large,I
room, In one end is a partition |
about eight or nine feet high. II !
was hanging mp on the other side Of
the partition, the side away from the |
,main part of the ROOM Q, "What |
kind Of a coat did he get?" A. "A |
black sllcker
We do not understand II Is CON |
tended that there was not a prima /
fNcie showing made upon the part OF |
the state that the witness, Arthur !
Myers. was residing In Washington /
at the time the subpoena was served .
upon him but II is contendcd In ef- /
feet that Il should have been shown
upon the part Of the state that his ,