Steadham v. State

On Motion for Rehearing.

HAWKINS, J.

In his motion for rehearing appellant calls our attention to bill of exception No. 8 which seems to have been overlooked in considering the case on original submission. It is apparent from the majority opinion and the dissenting opinion that the court’s attention was centered upon other questions than the one presented by such bill. There was no denial by appellant that he had killed his wife. His whole defense was based upon the proposition that he was caused to commit the act because he had seen his wife in Smith’s room and had seen her come out of the room only partly' clothed, and, believing that she had had sexual relations with Smith, he killed her. The defense was not a negation of guilt hut mitigation of punishment.

Bill of exception No. 8 reflects that Smith was placed upon the witness stand by the state at about 10:30 at night. He testified that appellant’s wife had not been in his (Smith’s) room at all on the occasion in question. Smith was the last witness used by the state, and, after the state rested its case, appellant’s counsel stated to the court that on the day before the trial began Smith had stated to appellant’s counsel in the presence of Ed Clem and Cleveland Connor that appellant’s wife had been in his room on the night of the killing, and only denied that they had sexual intercourse; that appellant’s counsel, having no reason to think Smith would testify differently, had made no effort to have Clem and Connor present as witnesses. Upon cross-examination, Smith was asked if he had not on the day before the trial began told Clem and Connor that appellant’s wife was in his room on the night of the killing. The witness denied having made such statement or anything to that effect. He admitted talking to the parties mentioned on the occasion inquired about, but asserted that he told them appellant’s wife had not been in his room on the night of the killing. At the time this matter developed, it was 10:30 o’clock at night. Appellant’s counsel requested the court not to close the evidence then, but to hold the case open until 9 o’clock the next morning and give him an opportunity to get in touch with Clem and Connor and produce them in court. The bill recites that the court stated he would not let the case go over until morning, but would give counsel until 12 o’clock that night to produce the witnesses. Counsel for appellant then stated that he did not know where to find them, and that it would be impossible to get them at that time of night and again requested that the evidence be not closed but that appellant be given until 9 o’clock the next morning, since the witnesses lived in the city of Beaumont where the case was being tried. This request was refused by the court, and the bill states that when the witness Smith finished testifying “the court ordered the evidence closed and it was closed.”

Attached to the motion for new trial were the affidavits of Connor and Clem. Each of them made oath that the witness Smith had on the day before the trial was commenced made a statement in their presence in which he (Smith) admitted that the wife of appellant had been in his room on the night of the killing and a short time previous thereto, but denied that they had had sexual relations. Connor was a colored man who worked for Mr. Clem; the latter was a business man in the city of Beaumont and owned the apartment house in which 'Smith lived, whose apartment adjoined the one in which the killing occurred.

The effect of Smith’s testimony, if believed by the jury, was to destroy appellant’s claim for mitigation of the penalty. He was requesting an opportunity to present witnesses who would weaken Smith’s unexpected evidence. It is well understood that ordinarily a case will not be continued or postponed, or a new trial granted, for purely impeaching testimony. Appellant was seeking none of these. The case was on trial and about to be concluded at 10:30 at night when the exigency arose which confronted appellant. His only request was that he be given until 9 o’clock next morning to produce the witnesses named. The request seems not unreasonable. On the other hand, it does seem unreasonable, under the circumstances, to have required the witnesses to be produced by 12 o’clock that night. If he had produced the witnesses the next morning and requested permission to use them he would have brought himself squarely within article 643, Code Or. Proc. 1925, which provides: “The court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appear that it is necessary to a due administration of justice.”

The bill of exception reflects that the request of appellant to submit the witnesses at 9 o’clock the next morning “was refused by the court and when said Smith had finished his testimony, the court ordered the evidence closed and it was closed.” If the court meant what he said when he ordered the evidence closed that night, it would have been useless to tender the witnesses the next morning. Under the facts certified in the bill, we are of opinion that appellant waived no right in failing to produce and tender the witnesses upon the reconvening of court next morning after the incident mentioned occurred. It cannot be held that the action of the court was harmless. As said before, the effect of Smith’s testimony was to destroy appellant’s claim for mitigation. If Smith’s testimony had been weakened or destroyed by the proposed testimony of Connor and Clem,' it is impossible to know what the attitude of the jury would have been towards appellant’s claim.

Having become convinced that the court fell into error as shown by bill of exception No. 8, and that in all probability it resulted in harm to appellant, it becomes the duty of this court to grant the motion for rehearing, set aside the former judgment of affirmance, and reverse the judgment of the trial court, and remand the cause for a new trial, and it is so ordered.