Respondent's motion to expunge allowed in part, November 10, 1956.
Appellant's petition for rehearing allowed December 5, 1956.
ON MOTION TO STRIKE
ON RESPONDENT'S MOTIONS TO EXPUNGE
ALLOWED IN PART.
The case is before the court on several motions of the respondent, State of Oregon, to strike from the record the transcript of testimony, transcripts of certain affidavits, and of a motion for a new trial, and two envelopes containing exhibits. The motions are based on two grounds: First, that the documents and exhibits referred to have not been made a part of the bill of exceptions, and, second, that the appellant (defendant in the court below) failed to comply with a rule of the circuit court requiring service of a proposed bill of exceptions on the opposing party.
On August 22, 1956, there was filed in this court a document entitled "Defendant's Bill of Exceptions." On the same day there were filed here two volumes of testimony authenticated by the official reporter. On the cover of the bill of exceptions is stamped the receipt of the county clerk of Benton County reading: "Received the 7th day of August, 1956. Ralph P. Schindler, County Clerk by Hulda Wrigglesworth, Deputy Clerk." The bill of exceptions consists of a statement of 22 exceptions taken by the defendant to rulings of the court, some prior to trial, most of them upon the trial. It contains a single reference to the transcript of testimony. Exception No. 8, relating to testimony received over the appellant's objections, recites: "This testimony and evidence is too extensive to be set forth here in detail, but is contained throughout the transcript of testimony." The certificate of the judge reads: "The foregoing Bill of Exceptions is allowed. Fred McHenry, Judge." The date of allowance does not appear. Attached to the bill of exceptions
On August 22, 1956, there was also filed in this court a document entitled "Short Transcript," which, along with the matters required by ORS 137.190 and 138.180, contains copies of a number of affidavits in support of a motion for change of venue, of an affidavit in support of a motion for inspection of a transcript of a statement made to officers by the appellant, of two affidavits in support of a motion for a bill of particulars filed by the appellant, and of a motion for a new trial. In the body of the bill of exceptions it is recited that the affidavits referred to are "set forth in the transcript filed herewith." There is a similar recital as to the motion for a new trial.
There also came to this court the two envelopes of exhibits above referred to. With the exception of State's Exhibit DD no mention of the exhibits is found in the bill of exceptions. Exception 17 sets forth the objection to the reception in evidence of this exhibit made on the trial by counsel for appellant.
1, 2. It is a basic rule of our appellate procedure that it is only through the medium of a bill of exceptions that evidence in a law action can be brought into the record for consideration by this court. Tellkamp v. McIlvaine, 184 Or. 474, 481, 199 P.2d 246; State v. Pulver, 159 Or. 296, 297, 79 P.2d 990, and cases there cited. This rule applies as well to affidavits in support of motions for a new trial, change of venue, continuance, and the like. Harper v. Wilson, 185 Or. 23, 26, 200 P.2d 600; State v. Garner, 166 Or. 1, 5, 108 P.2d 274; State v. De Grace, 144 Or. 159, 165, 22 P.2d 896, 90 ALR 232; State v. McPherson, 70 Or. 371, 373, 141 P
3. In this case the circuit judge has not by his certificate identified or made a part of the bill of exceptions either the two volumes constituting the transcript of testimony or the exhibits, with the possible exception of State's Exhibit DD. Under well-settled rules these matters are not part of the record and are not open for this court's consideration.
4. This is the first time in our experience and observation that an attempt has been made to incorporate affidavits in the bill of exceptions by including copies of them in the short transcript and referring to them in the bill of exceptions in the manner above stated. The affidavits should be set forth in the bill of exceptions itself. The statute says: "The rulings excepted to shall be stated, with as much evidence, or other matter, as is necessary to explain them, but no more." ORS 19.100 (2). There is no authority for including affidavits such as we are here concerned with in the short transcript, though it may be that by a liberal interpretation of the statute governing bills of exceptions we could hold that this unorthodox procedure is effective to accomplish what seems to have been the purpose of counsel and
5. Counsel for the appellant have suggested to the court the propriety of sending the case back to the circuit court for correction of the circuit judge's certificate. There is no doubt of this court's power to take that course, or of the power of the circuit judge in a proper case to amend the certificate so that the bill of exceptions will conform to the facts. State ex rel. v. Ekwall, 135 Or. 439, 443, 296 P 57, and cases there cited. In United Brokers Co. v. Southern Pacific Co., 86 Or. 607, 616, 169 P 114, this court appears to have itself allowed an amendment of the certificate to the bill of exceptions. If the opinion in the case means what it says, then this court erroneously exercised an authority reserved exclusively to a judge of the circuit court. ORS 19.100 (3), (4).
6. The suggested procedure would avail the appellant nothing, however, unless the trial judge were able to find that a bill of exceptions, which included the matters here in question, was tendered by presenting it to the clerk of the circuit court within 60 days after the entry of the judgment or within an extension of that time properly granted, in accordance with the requirements of ORS 19.100, and that such a bill of exceptions was actually allowed, but that through inadvertence or mistake the certificate failed to conform to the facts. No showing has been made in this court pointing to the existence of such a state of facts.
Nevertheless, being reluctant, as we are, to make a ruling which would have the effect of depriving a party who has been convicted of second degree murder of what may be substantial rights in connection with his appeal, we should be disposed to adopt the suggested
As heretofore stated, a copy of the "proposed bill of exceptions" was served by mail on the district attorney on August 7, 1956. This is the identical bill of exceptions which was filed with this court on August 22, 1956. It further appears from an affidavit of the official reporter that on April 30, 1956, he delivered a copy of the transcript of testimony to the district attorney. But there is no showing that any of the affidavits, copies of which are included in the short transcript, were ever served on the district attorney, and no "proposed bill of exceptions," of which the transcript of testimony, or the affidavits, or the exhibits, with the exception of State's Exhibit DD, are a part, has ever been served on the district attorney, and no proposed bill of exceptions which includes these other matters, with the possible exception of the affidavits, has ever been presented to the clerk of the circuit court, so far as the record shows.
7. A rule of court, such as that quoted above, which does not contravene the provisions of the Constitution or of statute, has the effect of law and is as binding upon courts and litigants as are statutes. Hart v. State Ind. Acc. Comm., 148 Or. 692, 701-702, 38 P.2d 698. In the cited case we held that a rule of the Circuit
In Ptack v. Strong, 121 Or. 688, 690, 257 P 19, it was suggested by Mr. Justice RAND, writing for the court, that it might be doubted "whether a court has the power to promulgate a rule so inflexible as to wholly deprive the court of the power to exercise a sound judicial discretion in a case where the failure to exercise such discretion may result in depriving a litigant of a legal right, which may be lost without any fault or neglect upon his part." But the court found that the record in that case did not disclose such freedom from fault or neglect, and expunged a bill of exceptions which had been allowed by the trial court notwithstanding the failure of the litigant to comply with the rule. Here, likewise, there is nothing to suggest that the litigant was free from fault.
8. In those circumstances we are compelled to allow the motions of the respondent to the following extent: the transcript of testimony, the affidavits, and the exhibits, except State's Exhibit DD, will be expunged from the record. The question of the motion for a new
Let an order be entered in accordance with the foregoing opinion.
ON APPELLANT'S PETITION FOR REHEARING
Sidney B. Lewis, Jr., District Attorney, and James W. Walton, Deputy District Attorney, Corvallis, contra.
In an affidavit filed in support of a petition for rehearing it is shown that the appellant moved the trial court for an order directing Benton county to
9. In these circumstances, now called to our attention for the first time, to hold the appellant to a compliance with Rule 30 of the Circuit Court of the Twenty-first Judicial District, which requires service of a copy of the proposed bill of exceptions to be made on the adverse party, would be unwarranted. The objection of the district attorney and the court's acquiescence in that objection had the practical effect of making compliance with the rule impossible. It would, of course, be highly unreasonable to hold that counsel for the appellant were under any duty themselves to bear the expense of procuring copies of the transcript of testimony.
10, 11. Counsel have renewed their suggestion that the record be remitted to the circuit court for the purpose of correcting the record by incorporating the transcript of testimony, affidavits and exhibits in the bill of exceptions. In view of the facts as they are now known to this court, the motion will be allowed. But the limits of the powers of the circuit judge in this regard, as stated in our former opinion, must be kept in mind. He cannot now settle a bill of exceptions anew, but can only correct his certificate — if, in fact, it is erroneous or incomplete — so as to make it conform to what was actually done. The power to make this determination
In the brief accompanying the petition for rehearing there is disclosed an evident misapprehension on the part of counsel for the appellant respecting the rules of this court. Counsel say that they were misled by "mimeographed instructions circulated by the Supreme Court to assist persons taking appeals." The so-called mimeographed instructions consist of an outline of our rules adopted June 1, 1955, and which became effective after November 1, 1955, prepared by the Clerk of the Court and designed to aid the county clerks in making up the record on appeal for filing in this court. The particular portion of the outline claimed to have been misleading is a statement in a summary of Rule 7, concerning bills of exceptions in criminal cases, which reads: "do not attach transcript of testimony (to bill of exceptions)." This obviously refers only to the duties of the clerk in respect of the mechanics of making up the record on appeal to be transmitted to this court after the bill of exceptions has been allowed and settled and should not have misled counsel.
12. This court has no authority to change the statutory rules governing the settlement of bills of exceptions and has not attempted to do so.
13, 14. Whether the transcript of testimony is physically attached to the bill of exceptions or not, it can only be made a part thereof by the authentication and certification of the trial judge. Neither Rule 3, relating to bills of exceptions in civil cases, nor Rule 7,
The record will be remanded to the circuit court for the purpose hereinabove stated.
ON THE MERITS
James W. Walton, Deputy District Attorney, and Sidney B. Lewis, Jr., District Attorney, Corvallis, argued the cause and filed a brief for respondent.
The defendant, Martin B. Reyes, was convicted of second degree murder and has appealed.
For an understanding of the legal questions raised by defendant's assignments of error a somewhat full statement of the evidence is required.
On October 24, 1955, the defendant, Clifford "Sonny" Shadd, and Rene Selig were prisoners in the county jail in Grants Pass, Oregon. At the hour of 3:20 on the afternoon of that day, Nelson F. Whipps, a deputy sheriff for Lane County, arrived at the Grants Pass jail and the prisoners named were surrendered to him for transportation to Eugene. The deputy drove them to Eugene in a sheriff's car. The defendant had a gun concealed on his person, which he had shown to Shadd, and en route he told Shadd that, when they stopped to eat and his handcuffs were removed, he would shoot the deputy. The party (other than Selig, who had previously been let out of the car) arrived at the Eugene municipal jail about 7:30 p.m. Inside the jail, as a part "of a normal routine skin search," Reyes was ordered by Eugene Police Officer Lockhart to remove his clothes. He responded by drawing a .45 Colt automatic pistol from under his belt, forced Lockhart to unlock the door to the county "tank," took the keys from Lockhart and locked him in a cell, released Shadd from another cell, and held up Whipps at the point of the .45 automatic and relieved him of his gun, a .38 revolver, and of the key to the sheriff's car. The defendant and Shadd then fled northward in the car. At a point about three and one-half miles north of Junction City on Highway 99W they flagged down a station wagon driven by Hobart H. Littlefield, Jr., who was accompanied by his wife and their three children.
At about this time the victim of the homicide, James Roy Appelgate, was driving his automobile in downtown Corvallis, having as his passengers his two daughters, Elaine aged 16 and Susan aged 11, and their friend, Dorothy Blacker aged 14. Elaine and Dorothy had been to a movie, and Mr. Appelgate, accompanied by Susan, had met them after the show was over. A few blocks from the scene of the crime Appelgate took into the car William Bottemiller, a member of the
The officer's gun was a .38 caliber Smith and Wesson revolver. The defendant backed towards the rear of Appelgate's car and to the left or driver's side, and pointed his gun at Appelgate, motioning with his gun and his head toward the car. He attempted to open the left-hand back door of the car, but the children had locked the doors and rolled up the windows. The defendant and Appelgate exchanged words, and Appelgate "jumped" the defendant, and they struggled, moving as they did so past the back of the car and into the alley, where several shots were fired. Appelgate was unarmed. The .38 caliber revolver, which was fully loaded at the time that the defendant seized it, was emptied and three or, possibly, four shots were fired from the automatic. Three shots from the .38 revolver took effect in Appelgate's chest, and at the third he fell to the ground. As he fell the defendant dropped the automatic and fled, and Bottemiller, who had witnessed the struggle, retrieved the gun, and gave chase. Bottemiller fired twice at the defendant and once in the air, but the defendant made good his escape. He was captured the next evening in Monmouth. The .38 revolver which he had taken from Bottemiller was
Appelgate was removed to the hospital where he lingered until the evening of the following day, when he died from the effect of the gunshot wounds. On his admission to the hospital he was conscious, but in a state of profound shock, and had no pulse or blood pressure. His wife was summoned and saw him about 10:30 p.m. In the presence and hearing of Appelgate a nurse, Jean Allen, asked the attending physician if she should prepare major surgery, and was told that "his condition was too critical, that there was not much hope, and that treatment could continue as it was." Appelgate was acquainted with the nurse, and he said to her while his wife was present, "This is a rough one, isn't it, Jean?" She said, "Yes, it is, but you'll be all right," but he answered, saying, "Don't kid me, I know I won't be." He said to his wife, or in her presence, "I almost got him" and "He sure got me three times," and "Anyway I saved my girls", and further, "He was right up next to me when he shot me."
Two of the three bullets which hit the deceased entered the front of his body and emerged from the back. The third was a .38 caliber bullet, which was found at the end of the bullet path in the back. The physical evidence indicated that the gun was within 8 or 10 inches of the body when it was fired. It was testified that the bullet removed from the victim's back was fired from Bottemiller's revolver.
The first four assignments of error present identical or closely related questions of law. The defendant filed a demurrer to the indictment based on the grounds that the facts stated "* * * do not constitute a
15. The asserted errors in these rulings, insofar as they pertain to first degree murder, need not be considered, since the effect of the verdict of guilty of second degree murder was to acquit the defendant of the higher crime and "he was therefore not prejudiced by any ruling made on that subject." State v. Meyers, 57 Or. 50, 57, 110 P 407, 33 LRS (ns) 143.
The indictment reads:
16. An indictment for first degree murder in identical form was sustained in State v. Casey, 108 Or. 386, 213 P 771, 217 P 632, against the claim that it failed to comply with the command of Art I, § 11, of the state constitution, that "In all criminal prosecutions the accused shall have the right * * * to demand the
An indictment charging second degree murder, no more definite or certain than the one here challenged, was held in State v. Holland, supra, to comply with the requirements of that section as well as all other applicable statutes. The demurrer in the case at bar was properly overruled. There is no statute of this state authorizing a bill of particulars in a criminal action. The pleadings and proceedings in criminal actions are prescribed by statute.
17, 18. The statutory provisions are exclusive. State v. Conklin, 47 Or. 509, 511, 84 P 482; State v. Gilliam, 62 Or. 136, 140, 124 P 266. The "common law rules for criminal pleading do not apply, and the statutes control." State v. Holland, supra, 202 Or at p 669. In Montana and California, which have statutes similar to ours, the courts hold that there is no place for a
19, 20. The motion to elect was likewise devoid of merit. If under this indictment evidence could be received of a felony murder — the question next to be considered —, and, if such evidence was received as well as evidence which showed a premeditated killing, the state was entitled to have the jury instructed on both theories. There is no inconsistency between them. Sharpe v. The State, 17 Tex App 486, 512; People v. Sullivan, 173 N.Y. 122, 65 NE 989, 63 LRA 353, 93 Am St Rep 582. In the latter case Judge Cullen, speaking for the court, said:
Only one crime could be proved or sought to be proved as a basis for conviction under the indictment. State v. Evans, 109 Or. 503, 508-509, 221 P 822. The cases relied on by the defendant (State v. Lee, 202 Or. 592, 276 P.2d 946; State v. Keelen, 103 Or. 172, 203 P 306, 204 P 162, 204 P 164) are not in point. They hold that where the evidence discloses, or it appears likely that it will disclose, several crimes, proof of any one of which supports the charge, the court may in its discretion compel an election by the prosecutor of the specific offense, upon proof of which he intends to rely when it appears that if the application is denied the defendant will be prejudiced or that he will be prevented from properly making his defense. Thus, for example — and this was the question presented in the Lee case — in a prosecution for statutory rape, where the state is at liberty to prove one of several different offenses under the indictment, and the particular date becomes material because the defendant relies upon an alibi, the court may require an election in order to afford the accused an adequate opportunity to defend himself. But cases of this character deal with separate crimes, proof of any one of which would support the charge in the indictment; whereas here is but one crime of which defendant could have been convicted, to wit, the killing by the defendant of Appelgate by shooting him with a pistol, and, from the sum total of the evidence, including evidence if there was such, that
The crucial question on this phase of the case is raised by defendant's exception to the court's instruction that the jury might find the defendant guilty of second degree murder if he killed Appelgate while he was engaged in the commission of an assault while armed with a dangerous weapon upon Officer Bottemiller. One ground of that exception was that "second degree felony murder is not included in this form of indictment." That question is not definitely settled by the decisions of this court. In several such cases the indictments included allegations of the connected felonies: State v. Jensen, 209 Or. 239, 296 P.2d 618; State v. Merten, 175 Or. 254, 152 P.2d 942; State v. Dorland, 161 Or. 403, 89 P.2d 595; State v. Evans, supra; State v. Brown, 7 Or. 186. These cases, therefore, do not involve the question now before us. In State v. Anderson, 53 Or. 479, 101 P 198, and State v. Casey, supra, neither of the indictments specifically alleged a killing in the commission of a felony, but evidence was received in each of these cases which would have supported a conviction of felony murder. In the Anderson case the court took notice of a division of judicial opinion on the question. But because evidence of the collateral felony was admissible in any event, and the general tenor of the court's instructions "clearly indicated to the jury that the defendant was on trial, not for having committed murder while attempting to commit a felony, but with deliberate and premeditated malice" (53 Or at p 483), the question whether the defendant could have been properly convicted of felony murder under
Referring to State v. Anderson, supra, the court said that "the learned judge, in speaking for this court, could have added that the great weight of authority is in harmony with the common-law doctrine." The court further said that "The indictment is sufficient to permit the introduction of the evidence of the felonious breaking and entry of the car by defendant," but added that it was unnecessary to decide "that proof of burglary supplies the evidence of deliberation and premeditation in order to constitute murder in the first degree, because of the fact that the court fully charged the jury that proof of premeditation and deliberation was requisite to establish defendant's guilt of murder in the first degree." It was further held that admission of evidence of the burglary was proper to show motive. In State v. Merten, supra, the indictment for murder alleged that the crime was committed while the defendant was engaged in the commission of assault and robbery being armed with a dangerous weapon and set out the essential elements of the latter crime. The indictment was sustained against the claim that
21. While, as will be later shown, evidence of the numerous crimes committed by the defendant on the afternoon and evening of October 24, 1955, was properly admitted in any event, nevertheless, in view of the instruction of the court which authorized the jury to find the defendant guilty of second degree murder if he killed Appelgate in the commission of an assault while armed with a dangerous weapon, the question discussed in the cases we have reviewed is now squarely before us, and we hold, in accordance with the decided weight of authority, that it is not necessary to charge in the indictment that the killing was done in the commission of, or an attempt to commit, another felony, in order to authorize the introduction of proof of such fact. In addition to the authorities cited in State v. Casey, supra, see: State v. King, 24 Utah. 482, 68 P 418, 91 Am St Rep 808; State v. Bolton, 65 Mont. 74, 212 P 504; State v. Roselli, 109 Kan. 33, 198 P 195; Harris v. State, 34 Wyo. 175, 242 P 411; Sharpe v. The State, supra (opinion of White, P.J.); People v. Lytton, 257 N.Y. 310, 178 NE 290, 79 ALR 503 (per Cardozo, Ch. J.); People v. Nichols, 230 N.Y. 221, 129 NE 883; Annotation 63 LRA 393; 26 Am Jur 331, Homicide, § 253; 40 CJS 1038, Homicide, § 148; 2 Warren on Homicide (Perm ed) 80, § 178.
22-24. We conclude that a conviction of felony murder under the form of indictment employed here can be sustained, and we are brought to a consideration of the second exception to the court's instruction on second degree murder in the commission of a felonious assault, namely, that there could be "no transferred intent in the crime of assault unless the assault is accompanied by a battery or attempted battery on the person being assaulted, and, therefore, there would be no transferred assault with a dangerous weapon, or otherwise, from Officer Bottemiller to James Appelgate." With this we will discuss the sixth assignment of error based on the court's refusal to give the following requested instruction:
The contention as to transferred intent is misplaced. The question is not, as counsel for the defendant would have it, whether Reyes, while attempting to shoot Officer Bottemiller, shot Appelgate instead. The question is whether the defendant was properly convicted of second degree murder under ORS 163.020 (1), which reads:
Assault while armed with a dangerous weapon is a felony other than rape, arson, robbery or burglary; and, if the defendant killed Appelgate while he was engaged in the commission of that felony upon Officer Bottemiller, he was guilty of murder in the second degree even though he had no intention of shooting either man. State v. Jensen, supra, 296 P2d at p 626. The jury could have found that, from the time that the defendant pointed the .45 automatic at Bottemiller and ordered him to put up his hands until Appelgate fell to the ground mortally wounded by bullets shot by the defendant from the officer's revolver, Bottemiller was under the threat of the defendant's assault upon him, and intimidated by it, and prevented from carrying out his purpose of arresting the defendant. The assault was obviously committed by the defendant for the purpose of avoiding capture, and the killing of Appelgate was in furtherance of that purpose and so closely linked with the assault upon the officer as to constitute a part of the res gestae of that offense. In such circumstances
The applicable rule is thus stated in 1 Warren on Homicide (Perm ed) 327-328, § 74:
To the same effect is 26 Am Jur 283, Homicide, § 190. In State v. Brown, supra, the trial judge gave, and this court approved, the following, among other instructions, in a case involving a killing in the commission of a robbery:
25. Here the court instructed the jury that the words of the statute "in the commission of any felony" "mean that the killing must be accomplished at some time during the interval of the beginning and completion of the crime and assault while armed with a dangerous weapon." In the circumstances of this case no further instruction upon the subject was required, and there was no error in refusing to give the requested instruction above set out.
28. The defendant also requested the court to instruct the jury that the evidence "pertaining to Ben's
29-31. Two other requested instructions would have limited application of "the evidence pertaining to events occurring prior to the time defendant reached Ben's Associated Service Station" to the questions of premeditation and motive. Technically, the requests were not correct for there were other "events" than crimes that occurred prior to the time referred to. However, the court no doubt knew the purpose of the requests, and the question will be treated as though they were correctly framed. State v. Garver, 190 Or. 291, 306-308, 225 P.2d 771, 27 ALR2d 105. Where evidence is admissible for only a limited purpose, for the court to refuse a limiting instruction when requested, is error (State v. Moore, 180 Or. 502, 176 P.2d 631, 177 P.2d 413, 332 U.S. 763, 92 L ed 349, 68 S.Ct. 68), but it is not necessarily prejudicial error. 1 Wharton's Criminal Evidence (12th ed) 566, § 248; Carroll v. State, (Tex Cr App) 58 SW 340. The objection to proving other crimes is that it tends to show the defendant to the jury as a bad man generally and to prejudice their minds against the accused and to predispose them to a belief in his guilt. State v. Jensen, supra. When evidence of such crimes is properly admitted for a particular purpose, e.g., to show motive, an instruction limiting its consideration to that purpose should be given when requested in order to minimize so far as possible the use of the evidence by a jury for an inadmissible
32. Assignment of Error No. 7 is directed to the denial by the court of the defendant's motion interposed "at the conclusion of the trial" for an order annulling the indictment "for the reason that there was no evidence before the grand jury on which it could, in fact, base an indictment of murder in the first degree." As a part of the motion the court was asked to direct the court reporter to provide the defendant with a copy of the transcript of the grand jury proceedings, or, if that should be denied, that the court authorize the defendant to bring in all the Grand Jurors and to make a record of the evidence on which they based their indictment. The motion was properly denied. State v. Broadhurst, 184 Or. 178, 251, 196 P.2d 407, 337 U.S. 906, 93 L ed 1718, 69 S.Ct. 1046; State v. Kelliher, 49 Or. 77, 81, 88 P 867. In the latter case we said that "even if the motion will lie to quash an indictment
Assignment of Error No. 8 complains of the refusal of the court to withdraw the charge of murder in the first degree. For the reason already given the point is now immaterial.
33-35. Assignment of Error No. 9 is based upon the court's refusal to remove from the jury the charge of second degree murder. We have already held that the evidence was sufficient to authorize the jury to find that the defendant killed Appelgate in the commission of an assault while armed with a dangerous weapon upon Bottemiller. It is argued that the only evidence bearing on the question whether the defendant purposely shot Appelgate is the statement of the defendant, "If I shot him it was unintentional," made in the course of an account of the crime given by the defendant to police officers and the district attorney and recorded on a disc, which was received in evidence and marked Exhibit DD. This statement, it is contended, is not controverted, and is therefore binding
Assuming that the quoted sentence is in truth an exculpatory statement and that the prosecution is bound by it in the absence of evidence to the contrary, the court in this case would be usurping the function of the jury if it undertook to declare as a matter of law that the defendant did not shoot Appelgate purposely. It should be enough to say that he shot him three times. It was open to defendant's counsel to argue to the jury, had they so desired, that the shooting was accidental, but that was a question of fact and not an open one in this court. As stated in State v. Langdon, 46 N.M. 277, 127 P.2d 875, "it is ordinarily a question for the jury" whether the presumption attaching to an exculpatory statement has been overcome by the prosecution. And,
Assignment of Error No. 10 charges error of the court in refusing to give the following instruction:
ORS 136.050 provides:
The court instructed the jury as follows:
36. These instructions met fully the requirements of the statute and are in the form ordinarily employed in homicide cases. It was not necessary, therefore, to give the instruction in the form requested by the defendant.
37. Assignment of Error No. 11 is directed to the following instruction given by the court:
The defendant excepted to the instruction on the ground that "There is no evidence to show that the defendant, Martin B. Reyes, deliberately used any deadly weapon to cause the death of James Appelgate." What we
The court gave the following instruction:
38. As his twelfth assignment of error the defendant says that the instruction was erroneous because there was no evidence to support it. The defendant claims that the evidence shows that Appelgate "jumped" the defendant and was not attempting to arrest him. The assignment is without merit for the reasons given in our discussion of Assignment of Error No. 5.
39, 40. Assignment of Error No. 13 is directed to the admission in evidence over the objection of the defendant of State's Exhibit DD, the disc heretofore referred to on which was recorded the defendant's statement. The record was played in the presence of the jury, and the disc on which it was made was received in evidence. Although a number of exceptions were taken to the court's ruling none of them
41. Assignment of Error No. 14 is directed to the denial of defendant's motion to remove from the consideration of the jury the evidence of Appelgate's statements about the shooting made by him in the hospital. In our opinion the evidence was properly admitted. The jury could have found that these statements were the declarations of "a dying person, made * * * under a sense of impending death, respecting the cause of his death." ORS 41.900 (4); State v. Garver, supra, 190 Or at p 310; State v. Casey, supra, 108 Or at p 400. Cf. Mercep v. State Ind. Acc. Com., 167 Or. 460, 469, 118 P.2d 1061.
42. Assignment of Error No. 15 challenges the court's denial of the defendant's motion for a change of venue based on numerous affidavits of citizens of Benton County that the defendant could not receive a fair and impartial trial in that county. The state filed opposing affidavits. The examination of the jurors has not been brought to this court, and so we have no way of knowing whether the prediction of defendant's attorneys in their affidavit in support of the motion that the problem of obtaining a fair and unprejudiced jury would be almost insurmountable and would result in many days of questioning of prospective jurors. The affidavits in support of the motion show, among other things, that James Roy Appelgate was a very popular man in Corvallis and Benton County. He had lived in Corvallis for many years and attended the public schools there. He was the father of three children. He belonged to various organizations, including the Benton County Sheriff's Posse, Oregon Association of Mounted Posses, Corvallis Elks, and the Corvallis Methodist Church. The manner in which Mr. Appelgate
43. The final assignment of error complains of an order of the court directing subpenas to issue for more than five witnesses on behalf of state as provided in ORS 139.060. Defendant says that the district attorney's showing in support of the application for the order as to the facts expected to be proved by the witnesses is insufficient. But this is no concern of the defendant's. He was not entitled to be heard on the application, the order was not a ruling against him and could not prejudice him unless it is to be said that to permit the state to prove its case is prejudicial to the defendant. The assignment of error is frivolous.
44. On December 5, 1956, at this court's direction, the clerk remitted the record to the circuit court for the purpose of securing an amendment of the certificate to the bill of exceptions so as to include therein the transcript of testimony, exhibits and affidavits if the circuit judge should deem that action proper. The circuit judge returned the record without amending the certificate. On December 20, 1956, the day after the oral argument, we again remitted the record for a
The defendant was ably represented by counsel appointed by the court and was given an eminently fair trial. A verdict of first degree murder would have been warranted under the evidence. No error of law justifying reversal and a new trial appears in the record.
The judgment is affirmed.