State v. Holbrook, 188 P. 947 (OR Supreme Court 1920)



98 Ore. 43; 188 P. 947; 1920 Ore. LEXIS 86

February 10, 1920, Argued
April 6, 1920, Decided

BURNETT, J. Mr. Justice BENSON did not participate in the hearing or decision of this case. BENNETT, J., dissenting.


The scene of the homicide described in the indictment is Dry Prairie, a plateau approximately four or five miles square, in Klamath County. There are some ridges in the plain, and it is surrounded by wooded hills. In the immediate vicinity of the killing, tussocks of short grass were growing in a sandy soil, about six inches apart on the average. It was a suitable place for keeping sheep during the lambing season. The decedent was the owner of a band of about 2,500 sheep, in charge of a Spaniard named Jim Santiago, who, it appears, claimed a one-fourth interest therein under a contract for the purchase of the same from the decedent, and for which he had not yet completed the payment. It is claimed on behalf of the prosecution that Santiago had gone into Dry Prairie several days prior to the homicide, and likewise before the advent of the defendants with another band of sheep owned by the defendant, Holbrook, and his brother, and accompanied by Paddock as an employee of the Holbrooks.

It is contended by the defendants that, as they approached the prairie from the southeast over the adjacent hills, they had a full view of the valley and saw no sheep there at all. It soon developed, however, that Santiago was there with sheep, and some discussion took place between himself and the defendants from time to time about his rights there. During their interview Paddock asserted control of the land where Santiago was then camped, whereupon the latter on the next day moved his camp farther north and established it on a portion of the public domain. Meanwhile, the defendants had made their camp, consisting of two tents facing eastward, at a point approximately 1,900 feet south, 35 [degrees] 25′ west from the camp of Santiago, as the latter was last established.

It seems that, when Santiago learned of the coming of the defendants and of their claim to the grazing on the prairie, he sent word to McKendree, who was then at Klamath Falls, about 30 miles distant. McKendree came to Dry Prairie on the morning of April 20, 1918. At that time his sheep were in the western part of the prairie, south of some springs near which were some shearing corrals. He went there and found Santiago. All this time McKendree was riding on a white horse and was armed with a repeating rifle. He returned with Santiago, traveling in an easterly direction towards the latter’s camp. On arriving at a point approximately north of the camp of the defendants, described by Santiago as “about half of a quarter of a mile” away, they separated, Santiago going towards his own camp, and the decedent riding directly to the camp of the defendants.

Digressing here, it is contended by the defendants and their witnesses that the decedent came to their camp before going west to the springs. On his arrival at their tents, as they state, he quarreled with them and called them vile names, threatening to “blow their caps off,” leveling his rifle at them and compelling them to come out from their tent at the point of his gun, and demanding that they leave the prairie. He had dismounted, as they say, and at this juncture his horse broke away from him, whereupon he pursued on foot and caught it, some distance east of their tents. He there mounted the horse and proceeded on a northwesterly course towards the springs already mentioned, calling out to them as he passed that, if he caught either of them he would beat him so his mother would not know him. He then went on in that direction, and later returned, as already stated, making the first time he appeared at their camp according to the theory of the prosecution, and the second time as the defendants assert. They say that he rode up and renewed the quarrel, demanding that they leave, claiming that there was not room enough in the prairie for two bands of sheep. Paddock contended, according to the defendants’ story, that he had before that kept sheep there through the lambing season when other bands were there, insisting that he had a better right there than anyone else, on account of having filed an application for a stock-raising homestead under the act of Congress of December 29, 1916 (U. S. Comp. Stats. 1918, U.S. Comp. Stats. Ann., Supp. 1919, ßß 4587A-4587K; Fed. Stats. Ann., Supp. 1919, pp. 708-711), entitled “An Act to provide for stock-raising homesteads, and for other purposes.”

Among other things attributed to the deceased by the defendants in that altercation was a statement by McKendree that he was going to turn into the valley 600 bucks and that Holbrook would have to herd them. They ascribe to him various threats of personal violence as he sat on his horse. At this time Holbrook was inside of or in the entrance to the larger tent of the two and Paddock was outside, some 20 or 30 feet distant, near a wagon standing there. The defendants say that McKendree rode his horse against Paddock and forced him back several steps, and started to raise his gun, when Holbrook fired two shots in quick succession from a rifle which he had in hand at the time, all while McKendree was facing him. Frightened by the shots, the horse whirled and started towards the Santiago tent and McKendree fell off. One of the shots passed through his body, entering the chest above the heart, severing the aorta and the vena cava, and lodged in the muscles of the back after fracturing the fifth and sixth ribs. This shot was shown to be by a soft-nosed bullet which, as some witnesses described it, practically exploded inside the body after striking some bones. The defendants contend that Holbrook fired both shots and that Paddock was not armed and did not shoot at all. They maintain that he was an innocent bystander.

The direct testimony for the state as to the killing itself comes from Santiago and another Spaniard named Emanuel Garcia. The former narrates that, acting under directions of McKendree after separating, he shouted to Garcia, who was at the Santiago tent, to get a saddle-horse for him, as he was going to accompany McKendree some seven or eight miles away to find new pasture for their sheep. He says that he watched McKendree continually as the latter rode towards the tents of the defendants and until he was killed; that the deceased rode up in front of the two tents occupied by the defendants and dismounted; that after some ten minutes’ conversation which Santiago could not hear from his distance, McKendree remounted his horse and started to turn to the right, when one shot was fired from the larger tent; and that, as the horse whirled and started to run in fright, the other defendant, who had stood outside the tent participating in the conversation, fired another shot with a pistol. Medical men who were witnesses for the state testified in substance that there was a gunshot wound entering from the back of the deceased, fracturing the neck of the shoulder-blade and passing through the body upward at an angle of about forty-five degrees, the exit being just under the collar-bone, making a clean-cut wound through the body.

Garcia declares that, having heard the shouted orders of Santiago he left his camp and went to get Santiago’s horse, traveling approximately southeast until he arrived at a point, as shown by the maps introduced, almost due east from the tents of the defendants, at a distance of 2,550 feet. He describes the occurrences after McKendree arrived at the defendants’ camp substantially as related by Santiago, and particularly the fact that the man outside the tent fired a pistol shot immediately after the fatal shot, and as the horse turned to run. Santiago, as he says, mounted his horse as soon as he could saddle it, rode some miles to a telephone and gave information of the homicide to the deputy sheriff. Some of the party of employees with the defendants did the like.

It is in testimony that individuals who arrived there some two hours after the killing were not permitted to go near the body, but were invited to sit down in the larger tent, and were cautioned by the defendants not to disturb two empty cartridge shells that were lying in front of the tent. The defendants claimed not to have touched the body or to have gone near it, or disturbed anything on the scene, from the time McKendree fell from his horse.

The medical experts declare that the wound severing the blood vessels mentioned was instantly fatal, and that the wound through the shoulder-blade would at once disable that arm, so that it would be incapable of holding or carrying a rifle. A witness for the state, who was the first to arrive there of anyone except the defendants and their employees, but who claimed that his eyesight was not very good, came near the defendants’ tents and was told by them that there was a dead man there, but that they said, “we will not say who killed him.” The witness claims to have looked casually in the direction of the dead body, and to have seen that it was lying on its back, with its right leg bent, with the knee upward and a gun lying on the west side, with the butt northeast and the barrel west, and that the body was about ten steps away from the tent. Other witnesses, who came later described the corpse as lying 96 feet away from the larger tent and 80 feet from the smaller one, and exhibit photographs showing that it was lying on its back, with the left leg extended on a line with the body, and the right leg lying full length at an angle, as if the feet were spread apart. The right arm was extended flat on the ground to the right, at right angles with the body, and the left arm bent up, with the hand resting approximately on the left collar-bone. As shown in the photographs, the butt of the gun rested on the ground at the left side of the body, and the barrel lay against the body approximately at the left nipple, projecting above the chest at an angle of about 45 degrees.

The witnesses for the state testify that, in addition to the two rifle shells found immediately in front of the larger tent, there was also discovered an empty shell from a Luger pistol some ten feet farther away towards the wagon, and that when the coroner arrived a pistol of that make was produced by one of the defendants from the seat of that wagon from under a covering canvas. One of the witnesses for the state testified that on examination this pistol seemed to have been recently fired, but that its magazine was full of cartridges. It is a contention of the state that between the time of the killing and the advent of the officers the defendants had moved the body and had so arranged it as to give rise to inferences favorable to themselves. There was testimony to the effect that there were no footprints near the body as it lay in the position shown in the photographs, but that there were some at the point where the tracks of the horse show he had whirled in his fright. In connection with that matter, the state put in the testimony of two witnesses to the effect that ten days after the homicide, and while the conditions were the same as on the day of the killing, they had made experiments in walking about on the tussocks of grass already mentioned, to see if they would make tracks, and they stated that, although they watched each other while thus engaged, they could not discover that any visible track was made.

It is said by the defendants, in substance, that immediately after the shots which were fired at McKendree a rifle shot was fired in their direction from the Santiago tent, and that they saw the smoke of the shot, and saw Santiago dodging behind his tent. During the trial at Klamath Falls, witnesses for the state took cartridges of the kind found in Santiago’s gun, and went out to a plain near Klamath Falls, where there was a background of green timber in the distance, and fired several shots in the presence of observers stationed at substantially the same distance away as between the two camps already mentioned, and they testified that there was no smoke visible. The admission of testimony about these experiments is assigned as error.

It is claimed by the defense that McKendree and Santiago, in going from the springs in the northwest part of the prairie eastward towards the camp of the latter, passed a witness named Blodgett and another man named Barclay Holbrook, who were in the employ of the defendants. On cross-examination, Santiago was asked to tell what was said between Blodgett and McKendree. He stated in substance that Blodgett sought employment of McKendree, who told him when he finished his work for the defendants to come to him and he would give him employment. Later on in the trial the state sought to introduce some declarations of McKendree, made prior to his turning south to the defendants’ camp. On objection of the defendants to this testimony as not being part of the res gestae, the court excluded it, and stated in substance that he would not permit anything to go in as res gestae occurring prior to the time that McKendree separated from Santiago and turned south to the Holbrook camp.

As part of their defense, the defendants called as a witness an abstractor and sought to have him testify about his examination of the county deed records, and to state what they disclosed about land owned by the defendant Paddock. The state objected to this as to any other lands than that where the homicide occurred, and contended that the evidence offered was not competent to show title, but conceded that the defendants could show title in one of them to the land on which the killing occurred. Nothing further, however, seems to have been attempted along this line. This ruling was also objected to by the defendants. They also offered to show by Mrs. Fordney that on the day next prior to the homicide, while en route from Klamath Falls to where he was killed, McKendree called upon her and endeavored to lease from her for grazing purposes some land which he thought she owned in Dry Prairie, but on being informed that she had previously sold it, he appeared to be angry. This offer was rejected and the defendants assign error on the refusal.

After Santiago had been dismissed from the witness-stand at the close of his cross-examination, the defendants recalled him for further cross-examination. As the counsel was proceeding to interrogate him, the court inquired if the defendants were laying a foundation for an impeaching question. Being answered in the affirmative, the judge informed counsel of a rule of court that impeaching questions should be in writing and a duplicate furnished to the court. The witness was then dismissed temporarily, and later they propounded a question which, eliminating profanity and obscene epithets said to have been applied to the defendants, reads thus:

“Did you not, on the public road leading from Bonanza to Bly, in Klamath County, Oregon, on the afternoon of April 17, 1918, say to Henry C. Lemler, ‘I am in trouble. You know Holbrook and Paddock (or Maddock) got six hundred acres say he got sixteen hundred acres. I see Mr. McKendree and he shoot them (or sue them) and get it all. I know McKendree he fix them plenty,’ or words to that effect?”

The court sustained objections to this question and refused to permit Santiago to answer the same, and later would not allow Lemler to answer it, all of which is assigned as error. The defendants also complained that the court would not permit a witness called by them to testify as to the result of turning 600 bucks into a flock of lambs and ewes.

The defendants offered testimony of several witnesses to the effect that the reputation of the defendant Holbrook for being a peaceable, law-abiding citizen was good. In rebuttal the state offered the testimony of a number of witnesses to the effect that he was of ill repute in that respect. Cross-examining the state’s witnesses, the defendants elicited from some of them that the basis of their estimate of his reputation was some trouble he had had about some sheep, and on redirect examination of those witnesses in some instances the state brought out that the trouble involved a violation of law. It is assigned as error that the court permitted the state to give evidence to the effect that the deceased had the reputation of being a peaceable, law-abiding citizen, and they complain that the court would not allow them to put in evidence a conversation which occurred between a brother of the defendant Holbrook and the witness Santiago on Monday, April 15th, before the killing on Saturday, April 20th. No offer of what the witness would testify in answer to such questions was made.

In respect to instructions asked and refused the assignment of error is couched in this language:

“The court erred in refusing to give and ignoring all the instructions offered at the trial, on behalf of both the plaintiff and defendants, and on its own motion gave instructions; in doing so the court assumed the burden and responsibility to give all the law absolutely correct; and the court under such circumstances would not be permitted to in the least jeopardize the interests of the defendants, and having failed to give all the law correctly, it committed grievous error to the prejudice of the defendants. * *

“The court further erred in the law in this case in refusing to give all of the defendants’ instructions; and it further erred in refusing to give any of defendants’ instructions, especially instruction No. 10. And the court erred in giving instruction on its own motion and without request, that is not the law in the case on abstract propositions of law not based upon evidence in the case to support them, and the instructions of the court were given in the negative, vague and ambiguous and as a whole series were misleading to the jury, conveying an impression upon the jury, the idea that someone must be convicted of some crime * *”

In general terms, without specifying any particular part of the charge, the defendants claim that the court erred in submitting the question of manslaughter to the jury. They maintain that the “instant case is either murder or justifiable homicide,” and they urge that there was no evidence from which the jury would be authorized to return a verdict of manslaughter in any event. Specifically, they assign as error the following excerpts from the charge to the jury:

1. “You will understand from this that you may find one defendant guilty and the other not guilty, or you may find both guilty but in different degrees; that is, your verdict need not be the same for both defendants.”

They insist that the court thereby told the jury that it must find one of the defendants guilty.

2. In charging the jury that justifiable homicide is the taking of human life in self-defense “to prevent the commission of a felony on the property of such person, or upon property in his possession, or upon or in any dwelling-house where such person may be.”

3. In eliminating the principle of apparent danger, in this language: “And had reason to believe that his life was in danger, or that he was in danger of great bodily harm. To excuse homicide, the party must act under an honest belief, well founded that it is necessary to take life to prevent great bodily harm.”

4. Exception is taken to this language: “It must be danger so urgent that the killing is absolutely or apparently absolutely necessary, and the danger must not have been brought on by the slayer.”

In general terms, without specification of the particular language to which the defendants object, it is assigned as error, in substance, that the court was wrong in instructing the jury as to the law applicable to aiders and abettors, contending that “such instruction was an abstraction, and without evidence to warrant a jury to find the defendants guilty of manslaughter,” on the ground, as defendants argue, “that there can be no accessories to voluntary manslaughter.”

1, 2. Concerning the experiments about tracing footprints on the grass at the scene of the homicide, and whether or not smoke could be seen from the discharge of a rifle loaded with a certain kind of cartridge, it is enough to say that, as stated by Mr. Justice LORD in Leonard v. Southern Pacific Co., 21 Ore. 555 (28 P. 887, 15 L.R.A. 221):

“In all cases of this sort, very much must necessarily be left to the discretion of the trial court; but when it appears that the experiment or demonstration has been made under conditions similar to those existing in the case in issue, its discretion ought not to be interfered with.”

As to the tracking experiment, the preliminary testimony was to the effect that the conditions were substantially the same as on the day when the killing occurred, and there is no testimony in the record to dispute this basis for the experiment. As to the ability to see smoke from a discharge of a rifle, the evidence was to the effect that the cartridges were charged with what is known as smokeless powder, and were of the same kind as those with which Santiago’s gun was loaded, and that on both days, that of the homicide and that of the experiment, the atmosphere was clear and the background was similar, so that the court was well within its discretion in allowing the testimony relating to both experiments. The objections of the defendants go more to the weight of the experiment testimony than to its competency. The question has been considered lately in the case of Kohlhagen v. Cardwell, 93 Ore. 610 (184 P. 261), in an opinion by Mr. Justice BENNETT, where the authorities are reviewed, constituting the latest expression of this court on that subject.

3, 4. As already noted, the testimony of Santiago about the conversation between Blodgett and the decedent related only to negotiations about the employment of the former by the latter. It was immaterial matter, brought out on cross-examination, and, besides this, there was no offer, as disclosed by the record, to show what Barclay Holbrook would testify on this point. The ruling of the court in this instance was not erroneous, nor was it wrong to reject the proffered testimony of the abstractor about his examination of the records with regard to what they showed about the ownership of lands by the defendant Paddock, especially in the light of the concession of the state, by its counsel, that the defendants might show title, if they could, in either of them to the land on which the homicide occurred.

5. The appearance of anger on the part of the decedent on the day previous to the homicide, when he learned that Mrs. Fordney could not lease the land to him, because she had sold it, is something utterly foreign to the issue in hand, and was properly excluded from the testimony.

In respect to the question propounded to Santiago about what he said to Lemler on April 17th when he was going towards Bly, which question the court refused to allow either Santiago or Lemler to answer, we remember that, as shown by the record, counsel for the defendants stated to the court that they asked the question to lay a foundation for the impeachment of Santiago. There are two methods described by our Code by which a witness can be impeached:

“A witness may be impeached by the party against whom he was called, by contradictory evidence, or by evidence that his general reputation for truth is bad; or that his moral character is such as to render him unworthy of belief, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness or the record of the judgment that he has been convicted of a crime”: Section 863, L. O. L.

“A witness may also be impeached by evidence that he has made, at other times, statements inconsistent with his present testimony; but before this can be done, the statements must be related to him, with the circumstances of times, places, and persons present; and he shall be asked whether he has made such statements, and if so, allowed to explain them. If the statements be in writing, they shall be shown to the witness before any question is put to him concerning them”: Section 864, L. O. L.

“Impeach” is a statutory word, and if a party would thus attack the testimony of an adverse witness, he must pursue the statutory method: State v. Askew, 32 Idaho 456 (184 P. 473). It is manifest that the effort to impeach Santiago cannot be classified under Section 863, L. O. L. There is no attempt in the record to show that his general reputation for truth is bad, or that his moral character is such as to render him unworthy of belief, and evidence of any particular wrongful act on his part would be excluded under the terms of that section. The attempt to impeach him is therefore confined to the requirements of Section 864. In other words, it would be necessary to show by the impeaching question that he had “made at other times statements inconsistent with his present testimony.”

7. The testimony of Santiago included a narration of the occurrences as he viewed them on the day of the homicide, and that he was on Dry Prairie with the McKendree sheep before the arrival of the defendants with the flock in their charge. The profanity and obscene epithets applied to the defendants, as indicated in the proposed impeaching question, were not inconsistent with any recital of his as a witness. There is no indication, in what he said in testifying, that he pretended to be friendly to either of the defendants. Indeed, he says of his conversation with one of them that they were both somewhat angry, and there is nothing at variance with that attitude as disclosed in the impeaching question. His declarations about what McKendree would do could not bind the latter: State v. Burns, 25 S.D. 364 (126 N.W. 572); People v. McBride, 120 Mich. 166 (78 N.W. 1076); Menges v. State, 25 Tex. Ct. App. 710 (9 S.W. 49); United States v. Cohn, 128 F. 615. Moreover, Santiago made no mention of that matter in his testimony.

8. As governed by the statute, before a witness can be impeached under Section 864, there must appear in his evidence something inconsistent with the statements said to have been made by him at some other time and place. He cannot be impeached on some utterance not thus related to his testimony in the case. We remember, indeed, that:

“A witness is presumed to speak the truth. This presumption, however, may be overcome by the manner in which he testifies, by the character of his testimony, or by evidence affecting his character or motives, or by contradictory evidence. * *” Section 704, L. O. L.

9, 10. Under this section [HN6] it is competent on cross-examination to ascertain the mental attitude of the witness towards the defendant, whether of enmity, hostility or prejudice. As the rule is stated in such cases as State v. Stewart, 11 Ore. 52 (4 P. 128), State v. Ellsworth, 30 Ore. 145 (47 P. 199), and others, he may be asked for this purpose if at other times, specifying time, place and persons present and the particular language used, he has not given voice to utterances indicative of hostility towards the party against whom he has been called as a witness. The procedure for eliciting such statements for the purpose of showing the hostility of the witness is the same as that to be employed in bringing out inconsistent statements; but the purpose of the two is entirely different. One is to discredit the motives of the witness, and the other is to put in operation the formula laid down by the statute for his impeachment. The latter does not necessarily imply hostility. The two are not to be confounded, and when the defendant by his counsel informs the court that he is proceeding to impeach the witness, he must adhere to that theory. He is not entitled to mislead the court and invite error. He cannot in one breath contend that he is proposing to impeach the witness, and in the next say that he was endeavoring to show bias or prejudice. As an effort to impeach the witness Santiago, the question propounded was clearly inadmissible, and the defendants were not entitled to follow it up by the testimony of Lemler to the effect that Santiago made the statement thus attributed to him.

11. It is not pretended that the decedent was in the act of turning a band of bucks into the flock of the defendants, and even if such were the case, it would not be a felony upon the defendants’ property in any event, justifying homicide in the defense of it. Hence, the court was right in not permitting the defendants’ witness to testify about the effect of such an action.

12. The matter upon which the character witnesses on the part of the state, who testified against the reputation of the defendant Holbrook, based their opinion, was brought out on cross-examination by defendants’ counsel, and cannot be complained of by them.

13. A defense urged by Holbrook and Paddock was substantially that McKendree was about to commit a felony upon them, by shooting them with his rifle. It was competent to show that McKendree’s general reputation was good for being a peaceable, law-abiding citizen. This would have a tendency to refute the assertion that he was about to commit a lawless act. In a sense, it was an issue whether or not McKendree was about to violate the law, and his reputation above mentioned would tend to disprove that charge. In principle it is the same as the testimony adduced by the defendants in their own favor on the same feature.

14. The conversation between Letcher Holbrook and Santiago on the Monday previous to the killing was not part of the res gestae. No foundation was laid for impeaching Santiago in that matter. Neither was there any offer on the part of the defendants to show what Letcher Holbrook would have testified, had he been permitted to speak on that subject.

The tenth request of the defendants to instruct the jury, upon the refusal of which they predicate error, reads thus:

“In this case some of the conclusions sought to be established by the state depend upon what is known in law as circumstantial evidence. To warrant a conviction on circumstantial evidence, to justify any conclusion leading to conviction, every single fact essential to such a conclusion must itself be proved by competent evidence beyond a reasonable doubt, and all the facts necessary to establish such a conclusion must be consistent with each other and with the conclusion sought to be established, and all the circumstances taken together must be sufficient to establish that conclusion, and to produce reasonable and moral certainty that it is true. No person can be convicted on circumstantial evidence, unless each circumstance essential to the conclusion of guilt is itself established to the satisfaction of the jury and beyond a reasonable doubt, and all of these circumstances, taken together, must produce a reasonable and moral certainty in the mind of the jury that the conclusion sought to be established is true. The mere union or combination of any number of independent circumstances each of an imperfect and inconclusive character will not justify a conviction, but, on the contrary, they must be such as to generate and to justify full belief beyond reasonable doubt of the guilt of the defendant. It is not sufficient that the circumstances proved coincide with, or render probable, the guilt of the defendant, but they must exclude every other reasonable hypothesis. No probability, nor any number of probabilities, nor any degree of probability, will be sufficient, for nothing short of proof beyond reasonable doubt of the guilt of the defendant is sufficient to justify his conviction. No other conclusion but that of the guilt of the defendant must fairly and reasonably arise from, or grow out of, the evidence, and the facts established must be absolutely incompatible with innocence, and incapable of explanation upon any other rational hypothesis than that of guilt, or the defendant must be acquitted.”

In Blanton v. United States, 213 F. 320 (Ann. Cas. 1914D, 1238, 130 C.C.A. 22), the court used this language:

“The most serious complaint is of a denial of a request respecting circumstantial evidence, which was not correctly covered by the general charge. We think, however, the denial was right. After the first few words, the request proceeded on the erroneous assumption that the evidence against the accused was entirely circumstantial, speaks of the strength of such evidence essential for conviction, and says it should always be cautiously considered. A requested instruction is always properly refused, unless it ought to have been given in the very terms in which it is proposed: Brooks v. Marbury, 11 Wheat. 78 (6 L. Ed. 423). An instruction as to evidence which would have a tendency to direct the minds of the jury from the controlling effect which other proper evidence may have on their decision should be refused: Ayers v. Watson, 137 U.S. 584 (34 L. Ed. 803, 11 S. Ct. 201). [HN7] A court may properly decline to give an instruction which would tend to mislead the jury: Agnew v. United States, 165 U.S. 36 (41 L. Ed. 624, 17 S. Ct. 235, see, also, Rose’s U.S. Notes). A request to instruct the jury upon a part only of the testimony is objectionable: Smith v. Condry, 42 U.S. 28, 1 How. 28 (11 L. Ed. 35).”

15. By the great weight of authority the doctrine of the cases is that an instruction on circumstantial evidence, such as the defense propounded in the instant case, is proper only when the prosecution relies exclusively on that class of testimony. On the other hand, if there is any direct testimony respecting the corpus delicti, an instruction on circumstantial evidence is properly refused. To give such a direction, where direct testimony is in the record would tend largely, in effect, towards saying to the jury:

“You may lay aside for the present all direct testimony respecting the crime charged, take up the circumstantial evidence, and, if you find that no other reasonable conclusion than the guilt of the defendant can be derived from such circumstantial evidence, you may find him guilty; otherwise, you must acquit him.”

16. This would be a partial and biased view of the case. The court is required to frame its instructions so that the attention of the jury shall be directed to all of the legitimate testimony, not excluding any particular part. The text in 16 C. J. 1008, lucidly explains the proposition. See, also, the following precedents: People v. Raber, 168 Cal. 316 (143 P. 317); People v. Lonnen, 139 Cal. 634 (73 P. 586); State v. Link, 87 Kan. 738 (125 P. 70); State v. Calder, 23 Mont. 504 (59 P. 903); State v. McKnight, 21 N.M. 14 (153 P. 76); Foster v. State, 8 Okla. Crim. 139 (126 P. 835); Brannon v. State, 140 Ga. 787 (80 S.E. 7); People v. Dougherty, 266 Ill. 420 (107 N.E. 695); People v. Bonifacio, 190 N.Y. 150 (82 N.E. 1098); State v. Neville, 157 N.C. 591 (72 S.E. 798); Barnard v. State, 88 Tenn. 183 (12 S.W. 431).

This explicit direction appears in the charge to the jury:

“If you find from all the evidence that it has not been proved beyond a reasonable doubt that a defendant or defendants committed one of these crimes, then you will find such defendant or defendants not guilty.”

The same principle is reiterated elsewhere in what the judge said in charging the jurors. In view of such language, it cannot be said of a truth that he in anywise required the jury to find either or both of the defendants guilty.

In the main, the exceptions to the charge of the court to the jury are founded upon small excerpts from the body of the document; in some instances, on parts of a sentence. It is written large in the instructions that the defendants are entitled to act upon appearances of danger and are not confined to actual danger. For instance, the judge said to the jury:

“A person has a right to protect his life or his person from great bodily harm, and he may even go to the extent of repelling any attack upon him by using a dangerous weapon, if the same is necessary or apparently necessary, to save his own life, or his person from great bodily harm. The danger, in fact, need not be real, but only apparent, if the assailed at the time honestly believed, and had reason to believe, that his life was in danger, or that he was in danger of great bodily harm.”

17, 18. So far as apparent danger is concerned, these instructions were as favorable as the defendants could ask. It might be remarked in passing that they were subject to objection on the part of the state in this, that they left the appearance of danger or actual danger to the judgment of the defendants, without regard to whether they were acting as reasonable men would under such circumstances, and in such a situation as the defendants were placed at the time. The law is that the matter must be considered from the standpoint of a reasonable man in the plight of the defendants at the time, under all the conditions then surrounding them, as disclosed by the testimony. The right to kill a human being in self-defense cannot be committed to the judgment of an unreasonable man, whether actuated by anger or cowardice.

19. Based on the language of this court in State v. Glass, 5 Ore. 73, and State v. Caseday, 58 Ore. 429 (115 P. 287), the defendants object to this language of the trial judge:

“It must be danger so urgent that the killing is absolutely or apparently absolutely necessary, and the danger must not have been brought on by the slayer.”

Disregarding the phrase “apparently absolutely necessary,” the argument for the defendants is that the word “absolutely,” as otherwise used in the excerpt just quoted, requires that the danger against which the defendants are entitled to act must be mathematically established, which would be to require of the defendants more than can be accomplished by any human being. In State v. Porter, 32 Ore. 135, 157 (49 P. 964, 970), this court, speaking by Mr. Justice WOLVERTON, approved the instruction touching the law of self-defense to the effect that the danger “must be absolute, imminent, and unavoidable, or the defendant must, from all the circumstances, have honestly believed it to be so.” The court there placed its approval of the instruction upon the ground that the language was coupled with the alternative expression about the belief of the defendant in the imminence of the danger, and drew the conclusion that, with this explanation, the jury could not have been misled by the language complained of. In State v. Glass, followed by State v. Caseday, the court condemned an instruction requested by the defendant that–

“The hypothesis contended for by the prosecution must be established to an absolute moral certainty, to the entire exclusion of any other hypothesis being true, or the jury must find the defendant not guilty.

A similar request was denied in the Caseday case. The Porter case may be easily distinguished from those of Glass and Caseday.

20-22. The matter is best illustrated by an analogy. It is necessary for the state, in accusing a defendant of a crime, to allege the facts constituting the offense in direct and positive language without equivocation or uncertainty. So to speak, a mathematically certain declaration is required, but it is not demanded that in support of such an accusation the state must adduce a mathematical demonstration. The evidence for the prosecution need not go further than to convince the jury beyond a reasonable doubt, to a moral certainty, of the truth of the charge. On the other hand, in a sense, the defendant urges in his defense under the plea of not guilty that there was either actual or absolute danger, or the reasonable appearance of such danger, against which he acted in self-defense. The measure of proof required of him in such a case is not mathematical demonstration, but enough merely to raise a reasonable doubt of his guilt in the minds of the jurors. Where Glass and Caseday were involved, the subject under discussion was the quantum of proof; while as to Porter there was under consideration the ultimate fact in the alternative of actual, or, in other words, absolute danger, or the appearance of the same, towards which the defendant should direct his efforts in the matter of proof.
There the measure of proof was not under consideration, as it was in the other two precedents. The present issue is governed by the doctrine of the Porter case. It is not within the reasoning of the opinions in either of the others.

“Absolutely” is not an accurate expression as applied to the measure of proof, but is rightly predicated of an allegation. In some instances difficulty on the part of jurors in distinguishing between averment and proof in the employment of the word would suggest as safer the use of other language in instructions, so as not to stray too near the border line of error. It is clear that the defendants had the right to resist absolute danger if such there was. Further, they are favored with the right to oppose the reasonable appearance of such absolute danger. In each of the two instances the law sanctions a homicide absolutely or apparently absolutely necessary to repel the correlative danger. This is substantially what the trial judge told the jury in the instant case and he was right in his language.

Taken altogether, as it must be for the purposes of this opinion, the address of the court to the jury lucidly portrayed the doctrine of actual or apparent danger in terms quite as favorable as the defendants could ask. We are not called upon to dissect the instructions into detached portions, and base our decision solely upon those minute excerpts.

23. It is true as a principle of law that there can be no accessory before the fact in a case of manslaughter by one acting upon a sudden heat of passion. It is equally true, however, that more than one individual may be actuated at one and the same time by a sudden heat of passion caused by a provocation applicable to all of them, apparently sufficient to make the passion irresistible, and so kill another human being as, together, to be guilty of manslaughter.

24. The defendants contend that there is no evidence that Paddock fired a shot, or took any part in the homicide, and that he is entitled to go free. This entirely ignores the testimony of Santiago and Garcia to the effect that they saw him fire a pistol in the direction of McKendree immediately after the shot by the rifle from the tent. It lays aside the testimony to the effect that, of the two wounds on the body of McKendree, one entered from the front and was caused by a soft-nosed bullet, which ruptured the blood vessels near the heart, broke the fifth and sixth ribs in the back, and lodged in the dorsal muscles; and another entered from the back and caused a clean-cut wound, which penetrated through the entire body, indicating that it was made by a steel-jacketed bullet, such as was found in the Luger pistol, in custody of the defendants. From the testimony the jury properly may have believed that fired by a sudden heat of passion at McKendree’s abuse of them, repeated at short intervals, as they say it was, the defendants, acting together, both shot him, one with the rifle and the other with the Luger pistol.

25, 26. It was not error, harmful to the defendants, at least, for the court to direct the attention of the jury to the principle that homicide is justifiable when committed “to prevent the commission of a felony on the property of such person, or upon property in his possession, or upon or in any dwelling-house where such person may be.” There was testimony to the effect that Holbrook fired the fatal shot from one of the defendant’s tents. He claimed to have fired it to protect himself from a threatened assault by McKendree with his rifle, testifying that the defendants were living in that tent, at least temporarily. They ate and slept there while in charge of their flock, and they would have a right to defend that habitation under the statute from which the excerpt was taken, whether it was a mere tent or a more pretentious abode. In Hooper v. State (Tex. Cr. App.), 105 S.W. 816, the court held that a tent was a private residence within the meaning of a statute against gambling “not in a private residence”; the fact being that the game was played in a tent owned by a saloon-keeper and occupied by an employee as a sleeping place. Hipp v. State, 45 Tex. Crim. 200 (75 S.W. 28, 62 L.R.A. 973), was another gambling case, apparently under the same statute. The card-playing was done in a tent formed by a wagon sheet over a pole, with brush for the sides and back and a brush fence in front to keep out the stock. One Scoggins and his son occupied this tent as a home, doing their cooking and sleeping there, and the court said:

“In our opinion, under the testimony the camp occupied by Scoggins and his son was their private residence; * * it was their home for the time being, and, under this evidence we are of opinion this was * * sufficient to show that this was a private residence.”

In Corey v. Schuster, 44 Neb. 269 (62 N.W. 470), the question was about the occupation of realty as a homestead, and the opinion there held:

“The law does not contemplate, by the words ‘dwelling-house’ any particular kind of house. It may be a ‘brownstone front,’ all of which is occupied for residence purposes, or it may be a building, part of which is used for banking or business purposes, or it may be a tent of cloth.”

See, also, Killman v. State, 2 Tex. Ct. App. 222 (28 Am. Rep. 432). In the light of the testimony, the defendants might well have contended that they killed the decedent to prevent the commission of a felony in their dwelling-house. In any event, the instruction could not have been harmful to them, because it provided for them another avenue of escape from the charge in the indictment.

From a careful and exhaustive examination of the record, having in mind the consequences that must be visited upon the defendants by a denial of their appeal, we are compelled to the conclusion that the case was fairly presented to the jury, without prejudice to any of their rights. By the resulting verdict of their countrymen, they have been declared guilty of the killing of a human being, and there is no alternative but to affirm the judgment.


Mr. Justice BENSON did not participate in the hearing or decision of this case.


I cannot quite agree with what is said in the opinion of Mr. Justice BURNETT as to the evidence of previous statements made by the witness Santiago, tending to show intense hostile feeling upon his part towards the defendants, which was offered for the purpose of impeachment.

As I read the opinion, there is no question made but what this evidence was admissible on behalf of defendant, for the purpose of discrediting the witness, if the attorney for the defendants properly stated the purpose for which it was offered. That it was so admissible for the purpose of discrediting the testimony of the witness is so well settled and so elementary as to be beyond question.

But, when this evidence was offered the attorney for defendant, in answer to an interrogatory by the court, stated that it was offered for the purpose of “impeachment,” and it is held in the opinion that the proper purpose of the testimony was to “discredit” rather than “impeach,” and that therefore the statement that it was offered as an impeaching question was misleading to the court, and that there was no error in holding that it was inadmissible for that purpose.

I cannot see any difference upon which this distinction can be based. The very purpose of any impeachment is to discredit, and anything which discredits a witness, impeaches him to that extent. In other words, the terms “impeach” and “discredit,” as we apply them to the evidence of a witness, mean, as it seems to me, exactly the same thing.

Webster’s International Dictionary defines “impeach” in this sense as follows:

“To impute some fault or defect to, as bias, invalidity etc.; to bring or throw discredit on–to call in question–as to impeach one’s motives or conduct. To challenge or discredit the credibility of, as a witness”–

and gives “discredit” as one of its synonyms.

Professor Wigmore, in his analytical and exhaustive work on Evidence, in the chapter on “Testimonial Impeachment,” treats the proof of bias at considerable length, as one means of impeaching a witness. In one place in this chapter on “Impeachment,” he says:

“But the force of a hostile emotion, as influencing the probability of truth telling, is still recognized as important, and a partiality of mind is therefore always relevant, as discrediting the witness. * * We infer partiality from the circumstance that the witness * * has on some occasion expressed hostility to the opponent”: 2 Wigmore, § 940.

And in another place in the same chapter:

“On the principle of fairness and of the avoidance of surprise, the settled rule obtains in offering evidence of prior self-contradictory statements that the witness must first be asked while on the stand whether he made the statements which it is intended to prove against him. Does the same rule apply to the use of evidence of former statements of the witness indicating bias? Must the witness first be asked whether he made them? He must as a matter of principle. For the same reasons of fairness, that require a witness to be given an opportunity of denying or explaining away a supposed self contradictory utterance, require him also to have a similar opportunity to deny or explain away a supposed utterance indicating bias”: 2 Wigmore, § 953.

And in the very opening words of the chapter he says:

“The process of impeachment or discrediting is fundamentally one of circumstantial relevancy. What is the process? The inference is (for example) that, because the witness X is of an untrustworthy disposition, therefore he is probably not telling the truth on the stand * * or because he has hostile feelings towards the opponent, therefore he is probably not telling the truth.”

Our own Reports are full of illustrations where hostile statements showing bias have been recognized as one method of impeachment. In State v. Stewart, 11 Ore. 52 (4 P. 128), there was an objection to proof of hostile statements by a witness. The court said:

“The argument is that the same strictness of rule is not observed * * in showing hostile declarations of a witness for the purpose of affecting the value of his testimony, as in admitting contradictory statements for the same purpose. The object of the proof is the same, and the same reason exists to refresh his memory with the particular facts, and afford him an opportunity for explanation.”

And then quoting with approval from another case ( Baker v. Joseph, 16 Cal. 173):

“No mode of ascertaining the state of feelings of the witness exists, except that disclosed by the declarations or the acts of the witness sought to be impeached by these declarations.”

Again, in State v. Mackey, 12 Ore. 154 (6 P. 648), the court said:

“There is no distinction, so far as the rule is concerned, between admitting declarations of hostility of a witness for the purpose of affecting the value of his testimony, and admitting contradictory statements for the same purpose.”

Again, in State v. Ellsworth, 30 Ore. 145 (47 P. 199), it is said:

“It is difficult to see on what ground this evidence was excluded, as it is perfectly well settled that on cross-examination a witness may be interrogated as to any circumstance which tends to impeach his credibility, by showing that he is biased against the party conducting the cross-examination.”

It seems to me that, under all the authorities, evidence of hostile declarations is only a method of impeachment, and that the purpose of the questions was accurately and properly presented to the court, when the statement was made that the evidence was offered for an impeaching purpose. So far as my personal observation goes, it has been the universal practice of the bar, ever since the decision in State v. Stewart, more than thirty-five years ago, to treat evidence of hostile declarations, as impeaching evidence, and to so state its purpose to the court when offered.

It is true that Sections 863 and 864 of the Code, which provide for certain methods of impeachment, do not specifically refer to hostile statements, such as are in question here; but it does not seem to me that these sections can be construed as definitive of the word “impeachment” or intended to narrow its accepted meaning. These sections do not purport to exclude any other methods of impeachment than the ones legislated about (except impeachment by proof of particular wrongful acts). Our courts have never given them any such construction, but, on the contrary, as we have already seen, have held repeatedly that the credibility of a witness can be attacked in other ways not mentioned by the statute. In this case the attorney for defendant did not say that he offered the evidence under the statute, but his offer was as broad as the definition of “impeachment,” and included any method of impeachment known to the common law. The court could not possibly have been misled, for the proof offered did not tend in the slightest degree to establish any other impeachment, except that of personal hostility.

In this case I am not clear that an error in excluding this evidence would be sufficiently serious to justify a reversal under the circumstances. It must have been entirely plain to the jury, by other evidence which was in the case, that this particular witness was hostile to defendants, and a strong partisan of deceased, in whose employ he was. It is not likely that the admission of his prior declarations would have made the least difference in the result. The ruling does not seem to have been considered of great importance by the defendant, and is hardly referred to in the brief on his behalf.

I do think, however, we should not disturb the long-settled rule that questions of this kind are impeaching questions, and can be so treated by the parties and their attorneys, and should be so regarded by the court.

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