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70 Or. 470

State v. Barton

Oregon Supreme Court

Decided May 26, 1914

Oregon Supreme Court · decided 1914-05-26

<p>Criminal Law—Trial—Conduct of Counsel—Action by Court.</p> <p>1. The persistent attempt of the state to force upon the attention of the jury evidence which the court had excluded is reversible error, though the court directed the jury to disregard the objectionable remarks.</p> <p>[As to improper argument of counsel justifying new trial, see note in 9 Am. St. Rep. 559. As to misconduct of attorneys at trial, and its effect, see note in 100 Am. St. Rep. 690.] .</p> <p>Criminal Law—Trial—Cautionary Instructions—-Necessity.</p> <p>2. In a prosecution for assault with intent to rape, where a memorial signed by 170 persons in a town of 1,000 or 1,500 inhabitants had been addressed to the prosecuting attorney and grand jury urging vigorous prosecution for crime and particularly for the crime in question, the refusal of an instruction to the jury not to rush blindly to a conclusion or to allow themselves to be swayed by passion or prejudice, and that it is not sufficient for the state to make out a strong probability of defendant’s guilt, but the state must convince by evidence beyond a reasonable doubt that defendant is guilty, is error.</p> <p>[As to what is reasonable doubt and instructions concerning it, see note in 48 Am. St. Rep. 566.]</p>

Cited by 4 later decisions — most recently May 1929

4 state decisions

Relies on Berry v. State · People v. . Fielding · McAdory v. State

Good law ✅— No negative treatment on recordhow we know

Reversed and Remanded · Decided 1914-05-26

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¶1Opinion by

Mr. Chief Justice McBride.

¶21. The persistent attempt of the state to force upon the attention of the jury evidence which the court had excluded, constituted reversible error: Long v. State, 56 Ind. 182 (26 Am. Rep. 19); Randall v. State, 132 Ind. 539 (32 N. E. 305); McAdory v. State, 62 Ala. 154; People v. Mitchell, 62 Cal. 411; Berry v. State, 10 Ga. 511; Fox v. People, 95 Ill. 71; People v. Dane, 59 Mich. 550 (26 N. W. 781); Fuller v. State, 30 Tex. App. 559 (17 S. W. 1108); United States v. Cross, 19 D. C. 562; Leahy v. State, 31 Neb. 566 (48 N. W. 390); People v. Fielding, 158 N. Y. 542 (53 N. E. 497, 70 Am. St. Rep. 495, 46 L. R. A. 641); People v. Valliere, 127 Cal. 66 (59 Pac. 295); People v. Derbert, 138 Cal. 467 (71 Pac. 564); State v. Rader, 62 Or. 37 (124 Pac. 195). It is true that in this case, as in several of the cases cited, the court directed the jury to disregard the objectionable remarks; but they were deliberately injected into the case, and it is impossible for us to say that they made no impression on the minds of the jurors, or to judge as to whether or not the court’s *474well-meant endeavor to “unscramble tbe egg” was successful.

¶32. While cautionary instructions are usually in the discretion of the court, there may be circumstances rendering them imperatively necessary, and we think such was the case here. The memorial introduced in evidence tends to show that at least 170 persons in that town of 1,000 or 1,500 inhabitants had a strong prejudice against the defendant, and a more or less fixed opinion as to his guilt. This would or might naturally filter into the minds of jurors attending the court and insensibly tend to prejudice them against the defendant. It was .asking nothing more than what was fair and just to the defendant that the jury should be cautioned against allowing prejudice or sentiment to influence its verdict, and the instruction should have been given. This is one of those instances adverted to in State v. Megorden, 49 Or. 259 (88 Pac. 306, 14 Ann. Cas. 130), where “the circumstances of the case made them necessary.”

¶4For these reasons, the judgment is reversed and a new trial granted. Reversed and Remanded.

Me. Justice Bean, Mr. Justice Eakin and Mr. Justice McNaey concur.
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