# State v. O'Neil

> Oregon Supreme Court · January 12, 1886 · 13 Or. 183

URL: https://www.frixlaw.com/law-library/cases/6894740

## Case

- **Full name:** STATE v. LEWIS O'NEIL
- **Court:** Oregon Supreme Court
- **Decided:** January 12, 1886
- **Citations:** 13 Or. 183; 9 P. 284; 1886 Ore. LEXIS 6
- **Precedential status:** Published
- **Opinion:** Dissent by Waldo
- **Judges:** Lord, Thayer, Waldo
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6894740

## Opinion text

Waldo, C. J.
(dissenting). A gun was found near the scene of the murder, with which the murder was supposed to have been committed. The state had the right to show that the gun belonged to the prisoner, or to trace it to his possession. Where a prisoner was seen on the day after the burglary, near the place of the burglary, and tools with which the burglary was supposed to have been committed were found near by shortly afterwards, the prosecution was permitted to show that these tools came from the home of the prisoner, although that home was 200 miles from the place of the burglary. “ Proof that the implements used came from his home was a circumstance very proper to be submitted to the jury in con *196 necting liim with the crime.” (People v. Larned, 7 N. Y. 452 .)
In this case, to connect the prisoner with the gun, the state had introduced evidence to show that about the first of October, 1884, the murder having been committed on the evening of November 20th following, the prisoner made a journey from Grave Creek or Jump-off-Jo Creek to Ashland, and was seen at three different places on that journey carrying a double-barreled shotgun, described as resembling that found near the scene of the murder. No question has been made on the sufficiency of the evidence of the identity of the gun. The only question here is on the rejection of the evidence offered on behalf of the prisoner to rebut this evidence on the part of the state. The object of the evidence on the part of the state was to trace the gun to the possession of the prisoner at Ashland. An isolated fact of possession at either of the places named could not, of course, be rebutted by evidence that he did not after-wards have the gun at some other place. But that is not this case. The principle of this case is this: J. S., making a journey from A to G, is seen at B, C, and D, having a gun in his possession, and carrying it with him as he travels. At F, on that journey, he' is traveling without the gun. The gun is afterwards found at G, and J. S. is accused of using it there to commit a murder. As proof of his possession of the gun, his journey from A to G is introduced, and his possession of the gun at B, C, and D shown. In rebuttal, evidence is offered that on an after-part of that journey, to wit, at F, J. S. was traveling without the gun. It may be noted here that it is not shown that J. S., after his arrival at G, on that journey, ever after came back to the place where he was last seen with the gun. To state the case in another way: J. S., on a certain day, is seen near the *197 right hank of the Columbia River, traveling toward a point on the other side, and carrying a gun. A few days afterwards, the gun is found on the other side of the river, near the scene of a recent murder. J. S. is arrested for the murder. The state endeavors to connect him with the gun, by showing his possession as above beyond the Columbia. In rebuttal, J. S. offers to show that he crossed the river on that day, and on that journey, without the gun. Now, if it could he certainly shown that J. S. never again, after that time, crossed and recrossed the river, this evidence would perfectly rebut the evidence on the part of the state. The possibility that he may have returned and brought the gun over at another time weakens the otherwise conclusive effect of the evidence, hut cannot destroy its effect altogether, without the aid of a conclusive presumption that he did return, which would be something new in the law, or possibly something old, but unheard of since the time of the Stuarts, of which Mr. Justice Stephen, in his history of the criminal law of England, says: “A criminal trial in those days was not unlike a race between the king and the prisoner, in which the king had a long start, and the prisoner was heavily weighted.”
A gun carried by a traveler in an early stage of a continuous journey from one given point to another, it might be supposed, was carried by him to the end. There ought to be a right to rebut this supposition, by showing that, at a point on the route beyond any point at which he is shown to have been carrying the gun, and before the point of destination was reached, he was pursuing his journey without it. Such evidence in rebuttal is precisely of like character to that of the prosecution. “ It would seem but even-handed justice that if one party should give evidence in proof of some point of his case, of a particular character, not strictly compe *198 tent in point of law for the purpose for which it was offered, the opposite party should be allowed the benefit of proofs of like character in disproof of the fact in issue.” (Woods, J., in Furbush v. Goodwin, 2 N. H. 448.)
In this case, the evidence of the state was competent. Much more, then, ought evidence of like character, offered by the defendant to rebut it, have been admitted.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6894740. Public record. Not legal advice.