State v. Butler

186 P. 55, 96 Or. 219, 1919 Ore. LEXIS 260

• Court: Oregon Supreme Court
• Decided: December 23, 1919
• Status: Published

Opinions

BENNETT, J.

Thlere are about 25 assignments of error, referring chiefly to the rulings of the court as to the introduction of evidence and the instructions given and refused.

1. It appears, however, from the record that the defendant was arraigned and filed a demurrer to the indictment and that he afterward entered a plea of not guilty and went to trial. The original record did not show affirmatively what disposition was made of the demurrer. The defendant now urges this as a fatal defect in the trial proceedings, but it is a very technical contention and, we think, is without merit.

The case of State v. Walton, 50 Or. 142 (91 Pac. 490, 13 L. R. A. (N. S.) 811), and State v. Cartwright, 10 Or. 193, cited by appellant, do not seem to be in point. In the Walton case there had been no plea to the indictment, and in the Cartwright case the question was whether or not it was necessary for the record to show that the defendant was present at the trial. In the case at bar both of these facts appear fully from the record. We think the formal disposition of the demurrer was not so essential that the silence of the record thereon would constitute a fatal defect, where the defendant afterward entered a plea of not guilty and went to trial without objection or question: State v. Sullivan, 52 Or. 614 (98 Pac. 493). The indictment in this case was in the usual form and seems to have been entirely regular and sufficient.

Section 1626, L. O. L., provides that on criminal appeals the court “must give judgment without regard * * to technical errors, defects or exceptions which do not affect the substantial rights of the parties.” Here, the indictment being entirely sufficient, the failure of the court to formally pass upon the demurrer could not possibly prejudice the defendant in any way. The provision of the statute is, therefore, entirely controlling, and the case cannot be reversed upon such a technical omission of formal proceedings: State v. Pender, 72 Or. 94 (142 Pac. 615); State v. Leonard, 73 Or. 451 (144 Pac. 113, 681). Besides it appears from a supplementary transcript filed in this court that the demurrer was in fact overruled, but that the clerk by some inadvertence overlooked the entry at the time in the journal and it is now remedied by an order entered nwnc pro tunc.

2. Mr. H. J. Stewart, father of deceased, testified that about eight months before the shooting the defendant had said to him:

“If I can’t beat you fellows any other way, I will do it with a "Winchester.”

It is urged that this threat was inadmissible because it was not directed especially toward the deceased, and because — as is claimed — it was too remote. We think this contention cannot be sustained under the circumstances of this case. On cross-examination the witness stated:

“I asked Mr. Butler what he intended to do about the road, and he said he wasn’t going to do anything. I told him then we would have to commence suit to open the road. I started home and then is when he made the statement: Hf I don’t beat you fellows any other way, I will do it with a Winchester.’ ”

From this testimony we think the jury had a right to infer that the threat, if made by defendant as alleged, had reference to the controversy about the road, over which the killing occurred, and that it referred generally to all the “fellows” who were pressing the opening of the road.

The authorities cited by appellant are not applicable to a case like this and do not support his position. In the case of State v. Meyers, cited from the 57 Or. 50 (110 Pac. 407, 33 L. R. A. (N. S.) 143)., the threat which the court held was erroneously admitted, did not refer in any way to the transaction sover which the deceased was killed, or to any class to which he belonged. The opinion in that case carefully excepts a case like this in the following language:

“And threats against a particular class of persons, as, for instance, a threat to kill all policemen, are admissible in a prosecution for killing a member of the particular class indicated in the threats.”

Here the threat was clearly broad enough to have reference to everyone who was pressing and enforcing the opening of this road; and it had reference apparently to the very coütroversy about which the killing occurred.

3. Testimony was admitted over the objection of the defendant tending to show the arrangement under which the deceased came to be at the scene of the shooting; and it is urged, that because this arrangement was made in the absence of the defendant, it is hearsay and incompetent, but we think this is entirely settled adversely to the defendant by the late case of State v. Farnam, 82 Or. 211 (161 Pac. 417, Ann. Cas. 1918A, 318), in which case the defendant was charged with the killing of one Edna Morgan, who appears to have been his sweetheart, and it was the theory of the state that the killing was on account of the deceased’s unfortunate condition, and that the defendant, for the purpose of avoiding the consequences to himself, had either voluntarily and intentionally killed her, or unintentionally done so in the attempt to produce an abortion. It became important to show where the young girl went on the evening of the killing and her purpose. A witness was called and asked:

“Now tell the jury what Edna told you about going home with you that evening.”

The witness answered:

“She said she could not come because she thought Hoy was coming down.”

Mr. Justice Harris, in an opinion, which was concurred in by a majority of the court, considers and discusses all of the authorities carefully and at great length, and reached the conclusion that the testimony was properly admitted, saying:

“If the doing of an act is a material question, then the existence of a design or plan to do that specific act is relevant to show that the act was probably done; * * and, considering the plan or design as a condition of the mind, a person’s own statements of a present existing state of mind, when made in a natural manner and under circumstances dispelling suspicion and containing no suggestion of sinister motives, only reflect the mental state, and therefore are competent to. prove the condition of the mind, or, in other words, the plan or design * * . The whereabouts of Edna Morgan was a material issue. It was important to show what she did and where she went. The state contended she met the defendant and accompanied him to the Beamer barn. Evidence of her declaration was competent to show what was in her mind, and that what she intended to do was probably done. * * The language used by her was only one way of stating that she intended to meet Roy Parnam. * * However, as the writer thinks, the true theory of the rule is that the statement of the deceased is original evidence of her intention, which the jury can consider as a circumstance indicating that she probably did what she intended to do, then on that theory no section of the Code is transgressed. * * Being competent to show what Edna Morgan intended to do, the testimony of Mabel Barton was not rendered incompetent for all purposes merely because it was incompetent for the purpose of connecting Roy Parnam with the alleged crime.”

Heré, as in the Parnam case, the evidence was offered not for the purpose of binding the defendant in any way, but for the sole purpose of explaining how the deceased came to be at the point in question, at the time in question, and what was his purpose and intention in being there.

Section 707, L. O. L., is in direct line with the conclusion of Mr. Justice Habéis in the Parnam opinion. It provides:

“Where, also, the declaration, act, or omission forms part of a transaction which is itself the fact in dispute, or evidence of that fact, such declaration,act, or omission is evidence as part of the transaction.”

This section recognizes two cases of res gestae— one the res gestae of the fact in dispute, and the other the res gestae of some act that becomes important as evidence of the facts in dispute.

Here, the act of the deceased in going to and being at the place where the killing occurred, and his purpose in going there, became very important; and it was entirely proper to show by his declarations at the time and as a part of the transaction, of going down there, what was the plan and purpose for which he went.

4. The testimony of Dutton, Jackson and Mrs. Jackson, as to what occurred probably half an hour before the killing at the point on the other side of the field from where the killing occurred, where the road went through the fence on that side, was admitted in evidence, and it is claimed that this was also error. This contention also must be overruled. The, testimony was entirely sufficient to justify the jury in concluding that it was the defendant who was putting up the fence on that side, and who drew the gun on Jackson and Dutton when they were about to get close enough to identify him. It is true they were not able to say that defendant was the man; but it may have seemed to the jury unlikely and improbable that there were two men out there in the night-time, with guns, at the different gaps in the fence within half an hour’s time. While not able to identify the defendant, these witnesses were able to describe, in a general way, the clothes which the man wore, and the gun seems to have had a peculiar bright and polished barrel. The clothes which the defendant wore on the night in question were described by the witnesses, and indeed they were seen and inspected by the jury; and the jury had an opportunity to compare the description of them made by the different witnesses. It seems entirely reasonable for the jury to have concluded then, that the person at the west side of the fence was the defendant.

The conduct of the defendant at that time and place was really a part of the transaction which led up to the killing. It was a circumstance tending to 'show the motives and feelings of the defendant, and tended to show inferentially, what occurred a few minutes later at the other side of the field, when the deceased was killed; and to show who was the aggressor in the fatal affray. ■ It tended to show that the defendant was the person who had been putting? up the fence, and with his other declarations, that he was intending to cover up his identity; and the jury had a right to draw the inference, that he had the gun with him that night, for the purpose of preventing anyone from getting close enough to him to identify. him; and from his actions there and from the plan and purpose of the deceased in going down there to watch the fence and identify the person who was putting it up that night, and from the other circumstances, the jury had a right to reason out as best they could what probably really happened between the deceased and defendant at the precise minute of the shooting. They had a right to wholly disregard all or any part of defendant’s story as to who was the aggressor if they believed it unreasonable or improbable under the circumstances.

The eases, cited by appellant upon this question are clearly and obviously .distinguishable from the case at bar. Here the evidence was not offered for the purpose of showing that the defendant had committed another crime; but because it had a direct bearing upon the crime charged in the indictment.

In the cases cited by appellant the collateral offense sought to be proved was entirely disconnected from the' crime charged. This case is much more nearly like the case of State v. La Rose, 54 Or. 555 (104 Pac. 299), than it is like the cases cited by appellant. In the La Eose case the defendant was charged with the killing of one Hyman Newman, with a piece of rusty gas-pipe wrapped in a newspaper; and it was shown that about 16 hours beford the defendant had struck a man by the name of Herman on the head with a weapon wrapped in the same way; and that within about 24 hours after, he had struck and robbed a Chinaman with the same kind of a weapon wrapped in the same way; and it was held by a unanimous court that the testimony was admissible.

If testimony like that, in this case, of the conduct of the defendant in regard to the same controversy, and at a time so immediately before the killing, was not admissible for the purpose of showing his feeling and motive and intent at the time of the killing a few minutes afterward, at the other side of the same fence and at the other end of the same road, and in regard to the same general transaction, with reference to a person who was trying to identify him in the same way, then it would be impossible to convict anyone of a crime on circumstantial evidence, and all one would have to do to go unscathed of justice, would be to choose a time for the commission of a crime when there were no third parties present and no direct evidence; and when his own story would be the only possible direct testimony.

5. The testimony of Paul Anderson, deputy sheriff, as to where Butler showed him that he was when he fired the last shot, and about how far that place was from the panel which had been opened, and from the place where the shells were found, was clearly admissible. The fact that defendant did not tell him in words exactly where he stood, but showed him about where it was, did not make this evidence any the less admissible, although it might have affected the weight of the testimony. His testimony showed clearly that the defendant told him he had crawled down the fence for quite a distance, and this was entirely sufficient to support the charge of the court in that regard.

6. The defendant asked the court to charge the jury as follows:

“An assault or attack with a dangerous weapon will almost invariably justify the killing of the’ assailant in self-defense, except when it is manifest to the defendant that the weapon cannot or will not be used for the purpose or killing or inflicting great bodily harm.”

And the refusal of this instruction is assigned as error. The instruction was argumentative and invaded the province of the jury. Whether an assault or attack with a dangerous weapon will justify the killing of an assailant will depend upon the circumstances, and is clearly a question for the jury. The court had no right to say to the jury that such an attack “would almost invariably” justify killing.

7. The instruction asked for by the defendant in the eleventh assignment of error might probably have been given by the court, but its refusal could not in any way prejudice the defendant for it referred to malice and ill will, and the jury must have found that there was no malice or ill will, or the verdict would have been for murder in the second degree instead of manslaughter. Besides, the court charged the jury absolutely that the defendant had a right to defend himself, if he was in danger or believed himself to be in danger, To the extent of taking the life of the deceased. One of the charges given was as follows:

“The law gives to every man the right, of self-defense. This means, that if a man is assaulted, he may defend his life or his person from great bodily harm. He may repel force by force and he may resort to such force as under the circumstances surrounding him, may be reasonably necessary to repel the attack upon him even to the taking of the life of his adversary.

“If then yon should find in the consideration of this case the defendant honestly believed that he was being feloniously assaulted, and did honestly believe that he was then and there in danger of death or great bodily harm, he would be justified in defending himself even to the extent of taking the life of his adversary.

“As I said, it is incumbent upon the prosecutor to prove to you beyond a reasonable doubt that the killing was not done in self-defense, and if, from the evidence offered in the trial of this case, yon find that the prosecution has not proved beyond a reasonable doubt that the killing was not done in self-defense, yon should find a verdict for the defendant. ’ ’

And other instructions given by the court were as absolute in this regard. These charges were equivalent to saying to the jury that if it was necessary, or apparently necessary, to kill the deceased to save his own life, or to save himself from great bodily harm, the defendant was justified in doing so, without regard to malice or anything else.

8. The twelfth, thirteenth, fourteenth, and fifteenth assignments of error were fully and entirely covered by the general' charge. It is well settled that the court is not required to give charges asked for in the exact language quoted, and we think the charge given by the court was, on the whole, quite favorable to the defendant and fully covered the principles involved in the charges asked for and refused.

9, 10. The sixteenth assignment of error has reference to an instruction defining manslaughter. It is urged that there was no evidence of manslaughter, and that this instruction was abstract. But every killing is manslaughter unless it is justifiable or excusable; or is accompanied by malice or deliberation, when it becomes murder in'the first or second glegree.

In this case, if the jury was in donbt as to whether there was any malice and was satisfied the killing was not justifiable or excusable, it was bound to find a verdict of manslaughter. All ■ the circumstances were before the jury, and they may have inferred that the defendant, under the provocation of a sudden attack, grew angry and killed the deceased without any real or apparent necessity. Under such circumstances the killing would not be justifiable or excusable, and the verdict of manslaughter wbuld be sustained.

Section 1902, L. O. L., provides:

11 Every other killing of a human being by the act, procurement, ■ or culpable negligence of another, when such killing is not murder in the first or second degree, or is not justifiable or excusable, as .provided in this chapter, shall be deemed manslaughter.”

11. There was ample evidence to sustain a verdict of manslaughter in this cause.

12. The eighteenth, twentieth, twenty-first, twenty-second and twenty-third assignments of error refer to instructions given by the court. We think these instructions, when read together with the others, are substantially correct. Some of the instructions, when taken from the remainder of the charge and read by themselves, might be subject to possible criticism; but in the light of the entire charge this ceases to be true, and we think the charge on the whole was entirely favorable to the defendant.

13. The nineteenth assignment of error refers to the following chargfe:

“You should also consider the evidence of any threats made by the defendant against Stewart, if any are shown, in aiding you to determine the intent with which the defendant committed the act, and also to aid you in determining the question of malice on the part of the defendant.”

It is urged that there was no evidence of any threats by the defendant against Stewart, but as we have already seen, the threat testified to by Stewart’s father was broad enough to cover him, if the jury should find he was one of the persons interested in the opening of this road.

14. We think there is nothing in the record which would justify us in reversing the case on account of the argument of the district attorney. The language may have been bitter and somewhat intemperate, but it seems well settled in this state that such, language, when going no further than in this case, will not justify a reversal.

15. Neither do we think the cause can be reversed on account of the instruction to the jury given by the court when they were unable to agree, in which the court sent them back for further consideration of the case, and urged them to try to reach an agreement if possible. The language in no way coerced them. It was nothing more than a fair and proper request upon the part of the court for the jury to give the matter further consideration, and try to reach an agreement, if possible. The language of the court was as follows:

“Now, when you go back I want you to do the best you can to harmonize your differences, and everybody remember that it must be a very severe strain upon a defendant to go through an ordeal of this kind, and he is entitled to a verdict of whatever it shall be, and it is also important that the state shall have a verdict, as we will have to try the case over again if we do not get a verdict, • and I want you to try not to lose your tempers and to try your best to harmonize your differences and everybody try to do right and to do what your consciences think should be done but do not get stubborn and say you won’t. Sometimes jurors get tired and I know it is hard to ask jurors to do this work but some jury will have to solve this and so I will ask you to do the best that you can to solve it.”

There seems to be nothing coercive in this instruction. On the contrary, it seems to have been a very temperate and reasonable statement of the duty of the jury to meet each other’s yiews in a reasonable spirit and try to reach a unanimous conclusion if they conscientiously could. There seems to be nothing which would indicate that it was in any way the duty of any juror to give up his honest views or accede to a verdict which he could not conscientiously concur in.

Much stress is placed upon the words admonishing the jurors to not “get stubborn and say you won’t.” But this must be referred to what went just before it, in which the jury was told to try “to harmonize your differences, and if possible, try to do right and do what you conscientiously think should be done.” And when read in this light it was entirely proper. One of the meanings of the word “stubborn” given by the International Dictionary is “Unreasonably unyielding.” And this was, evidently from the context, the sense in which the word was used in the instruction.

Judge Thompson, in his work on Trials (2 ed.) vol. 3, at pages 2123, 2124, cites with approval three different instructions given by three different courts, in which the same word, or its exact equivalent, is' used in a similar instruction in the same way; one being passed upon by the Supreme Court of Nebraska in Jessen v. Donahue, 4 Neb. (Unof.) 838 (96 N. W. 639); another by the Supreme Court of Michigan in Mead v. Harris, 101 Mich. 585 ( 60 N. W. 284); and one by the Supreme Court of South Carolina, Caldwell v. Duncan, 87 S. C. 331 (69 S. E. 660). It seems well settled in this state, as well as generally, that the trial court can, with propriety, admonish the jury in a temperate and moderate way, as to its duty in considering a case and in trying to reach an agreement: State v. Saunders, 14 Or. 300 (12 Pac. 441); State v. Hawkins, 18 Or. 476 (23 Pac. 475). The instruction of the court in this case seems to be well within the rule.

In State v. Saunders, 14 Or. 300 (12 Pac. 441), the exact instruction complained of does not appear in the report of the case, but we have examined the record in that case, and the instruction, in so far as it is important on this question, was as follows:

“That it was their duty to try and agree upon a verdict. * * That the court could now discharge a jury when there was no hope of their agreeing on a verdict— * * still it was of great importance that the jury agree and the case be decided and ended. * * That in discussing the case in the jury room, it was the duty of each juryman to carefully hear and consider the opinion of his fellows; that it might happen that all the jurymen would not remember or view the evidence alike, and they should discuss all matters pertaining to the case freely and with candor — that it was not proper for one juryman to announce that his views were correct without first considering the opinions of his fellows. If jurors would never in any manner change or modify their impressions after hearing their fellows, verdicts would not often be rendered and the jury system would be a failure. That they would have to remain together and could not separate until they agreed upon a verdict and brought it into court.”

In relation to this instruction the court said:

“The objection to the instructions to the jury, as to their duties — telling them the effect of a disagreement at common law, and of how juries were kept together until they did agree; the mitigation of the rule in the United States; and remarking to them that they would have to remain together, and could not separate until they agreed on a verdict, and brought it into court — cannot be entertained. It was proper for the court to inform the jury respecting their duty; advise them how they should consider the matter before them, and the course to pursue in reaching a conclusion.”

In State v. Hawkins, 18 Or. 476 (23 Pac. 475), the court had charged the jury:

“I need not admonish this intelligent jury that it is_ important to the ends of justice, and to secure public respect for our judicial tribunals, that juries agree upon verdicts in cases submitted to them, so that causes may be determined and new trials and delays of justice avoided.”

This instruction, like the one in the Saunders case, was held to be within the fair province of the court and to be no error, the court saying:

“Such instructions announce no principles of law further than to impress upon the minds of jurors the duty of considering the case in all of its bearings fairly and without prejudice, and to endeavor to reach a just conclusion.”

And again:

“It was proper for the court to inform the jury respecting their duty; advise them how they should consider the matter before them, and the course to pursue in reaching a conclusion. * * No intelligent or conscientious juror could be misled by such an admonition. He understands the motive of the court not to be to control or coerce his judgment contrary to his conscientious convictions, or to induce him to yield to the judgment of his fellows without the fullest comparison of all of the facts. It is impossible to see in what manner such advice to the jury could have injured the defendant.”

At the time the instruction was given the jury had not been out an unreasonable time — only about 7 hours — and had not reported they were unable to agree; but came in to ask the court for further instructions. The case at bar is clearly distinguishable from that of State v. Ivanhoe, 35 Or. 150 (57 Pac. 317). In the latter case the jury had been out all night and had reported they were unable to agree. Much stress was laid upon these facts in passing upon the case on appeal. Also, the instruction was much more coercive in its tendency than the instruction in the present case. In that case the trial court dwelt upon the matter at some length and in the course of a long instruction told the jury, among other things:

“That they should listen with a disposition to be convinced by each other’s arguments. * * A proper regard to the judgment of other men will often greatly aid us in forming our own judgments. In many of the relations of life it becomes a duty to conform to the opinion of others, when it can be done without a sacrifice of conscientious convictions. More especially is this a duty when we are called to act with others, and when dissent on our part may defeat and materially affect the rights of third parties. The single object to be effected is to arrive at a true verdict, and this can only be done by deliberation, mutual concessions, and a due deference to the opinions of each other. * * Without that, the trial by jury, instead of being an assistance or essential aid in the administration of justice, would become a most effectual obstacle to it. ’ ’

It is easy to see that the instruction in that case was far more extreme, and went far beyond the very moderate instruction given by the court in this case. The opinion in the Ivanhoe case does not, in any way, overrule the previous opinions in the Saunders and Hawkins cases, already quoted from. On the contrary, it distinguishes from them upon the ground that in the Ivanhoe case the jury had been out a long time and had come in and reported that they could not agree.

There may be a question as to whether the attempted distinction between the Ivanhoe case and the previous cases was well based, but whether there was such a logical distinction for the Ivanhoe ease upon that ground, or not, it is perfectly plain that’there is no such distinction between the case now at bar and those of State v. Saunders and State v. Hawkins. Here the jury had not failed to agree. On the contrary, they came in for further instruction in relation to self-defense, from which it must be inferred that they were still considering the matter with the view of an agreement. There surely can be no logical distinction between such an instruction, given at this time, and the same instruction, if it had been given before the jury went out at all. The case at bar is clearly distinguished in this regard from the Ivanhoe case and is exactly on all-fours in principle with the previous cases. It is very doubtful if this question is properly presented by any exception, and it certainly is not specifically pointed out in the assignments of error; but in any event, there was, it seems to me, no error in the action of the court in this regard.

16. Defendant’s seventeenth assignment of error refers to the following instruction:

“The law regards human life as the most sacred of all interests committed to its protection, and there can be no setting up of self-defense, unless the necessity of taking human life is actual, present, urgent, unless, in a word, the taking of his adversary’s life is the only reasonable resort of the party to save his own life or his person from deadly harm or severe calamity felonious in its character, or from all of the circumstances he had reasonable ground to believe his life or person was in sneh grave danger.”

It will be noticed that this instruction does not make it necessary for the defendant to have been in actual danger, but clearly points out to the jury that he had a right to act on the appearance of danger as presented by the circumstances. It is strenuously urged, however, that that part of the instruction which requires the injury to be “felonious in its "character” is erroneous in the use of the word “felonious.” It is plain that the court used the word “felonious” in this connection as synonymous with “great bodily injury.” I think, under our statute, the use of the word “felonious” was not error.

Independent of our statute the court had high authority for the instruction.' In the case of Commonwealth v. Selfridge (Selfridge’s Trial, p. 160), in the Supreme Court of Massachusetts, which seems to have been tried before the full court of that state, Chief Justice Parsons, in charging the grand jury, said:

“But if the party killing had reasonable ground for believing that the person slain had a felonious design against him, although it should appear afterward that there was no such design, it will not be murder but will be either manslaughter or excusable homicide, according to the degree of caution used and the probable grounds of such belief.”

And Mr. Justice Parker, in charging the trial jury, said:

“When, from the nature of the attack, there is reasonable ground to believe that there is a design to destroy his life, or commit any felony upon his person, the killing of the assailant will be excusable homicide.”

. In another leading case, United States v. Wiltberger, .3 Wash. C. C. 515 (Fed. Cas. No. 16,738), before Judges Washington and Peters, Judge Washington, then an Associate Justice of the Supreme Court of the United States, charged the jury as-follows:

“As to this, the law is that a man may oppose force to force in defense of his person, his family or property against one who manifestly endeavors by surprise or violence to commit a felony, as murder, robbery or the like. In this definition of justifiable homicide the following particulars are to be attended to; the intent must be to commit a felony. If it would be only to commit a trespass as to beat the party, it would not justify the killing of the aggressor.”

The charge of Mr. Justice Parker in the Selfridge case was quoted with approval by the Supreme Court of Michigan in People v. John, Doe, 1 Mich. 451.

In Brownell v. People, 38 Mich. 732, Chief Justice Campbell, delivering the opinion of the court, said:

“Any serious bodily harm apprehended from a felonious attack — such as mayhem, for example— would not merely excuse but justify extreme resistance. ’ ’

In another leading case of State v. Kennedy, 20 Iowa, 569, Judge Dillon, one of the greatest judges, unquestionably, who ever sat upon thé Iowa bench, said:

“And unless there’be a plain manifestation of a felonious intent, no assault will justify killing the assailant.” -

In the previous Iowa case of State v. Thompson, 9 Iowa, 188, it was said by Judge Stockton:

“If it is not apparent from the manner of the assault, the nature of the weapon used, and the like, that the assailant intended to commit a felony, that the danger was imminent, and that the species of resistance used was necessary to avert it, the party assailed is not justified in resorting to the use of a deadly weapon and using it in a deadly manner.”

In State v. Harris, 46 N. C. 190, the court below had charged the jury:

“That whenever there are reasonable grounds to believe there is a design to destroy life or to rob or to commit a felony the killing of the assailant will be justifiable.”

And the Supreme Court affirmed the judgment, saying:

“We see no error in these directions.”

In Johnson v. State, 136 Ga. 804 (72 S. E. 233), the court below had charged the jury:

“One would not be justified under the law of self-defense in killing another, to prevent the commission of an injury upon him which would amount to nothing more than a misdemeanor.”

And the court held that this instruction was not erroneous.

In Territory v. Baker (Johns.), 4 N. M. 117, 128 (13 Pac. 30, 41), the court said:

“The phrase, ‘great personal injury,’ as used in the statute, means something more than apprehension, however imminent, of a mere battery, not amounting to a felony. . In order to justify the assault, and to slay an assailant, within the meaning of this section, there must be an apparent design on the part of such assailant to either take the life of the person assailed, or the infliction of some great personal injury, amounting to a • felony, if carried out; and, in addition thereto, there must be imminent danger of such design being accomplished.”

In Acers v. United States, 164 U. S. 388 (41 L. Ed. 481, 17 Sup. Ct. Rep. 91, see, also, Rose’s U. S. Notes), the court below had charged:

That in order to justify a killing in self-defense, the sudden injury must have been

“a great injury to the person injured that would maim him, or that would be permanent in its character, or that might produce death. * * That there was danger to his life or of deadly violence to his person, and unless that condition existed then there is no ground upon which this proposition can stand.”

The court held that there was no error.

Careful research by the members of this court, assisted by the briefs of learned counsel for the defendant, has discovered four cases which are claimed to be to the contrary, namely: State v. Keasling, 74 Iowa, 528 (38 N. W. 397), State v. Clark, 134 N. C. 698 (47 S. E. 36), Rogers v. State, 60 Ark. 76 (29 S. W. 894, 46 Am. St. Rep. 154, 31 L. R. A. 465), and State v. Sloan, 22 Mont. 293 (56 Pac. 364).

The Iowa case cited does not seem to me to be at all in point. In that case the court had charged the jury that the sudden danger must be actual rather than apparent, and it was upon that ground that the court reversed the judgment of the court below, and not upon the ground that the instruction required the assault to be felonious in its character, in order to justify the killing. The law in Iowa is well established that the assault, in order to justify killing in self-defense, must have been felonious: State v. Thompson, 9 Iowa, 188, and State v. Kennedy, 20 Iowa, 569.

It will appear from the consideration of the above decisions that the overwhelming weight of authority is to the effect that, independent of statutory provisions, an assault must be felonious in its character in order to justify a killing in self-defense. But we are not compelled to depend on the weight of authority at common law, for it seems that our statute and our decisions definitely and certainly settle the matter beyond controversy.

Section 1909 of the present Code was originally enacted as part of the Code adopted in 1864 and was Section 518 of that Code. It provides:

“The killing of a human being is also justifiable when committed by any person as follows: (1) To prevent the commission of a felony upon such person or upon his or her husband, wife, parent, child, master, mistress or servant.”

This is the only section of the Code which gives any definition of justifiable homicide, which could possibly cover a case like the present one. Section 1910 of the Code provides for “excusable homicide.” But no part of its definition has anything to do with a homicide in self-defense. Section 1902, L. O. L., being Section 511 of the Code of 1864, provides that—

“Every other killing of a human being by the act, procurement, or culpable negligence of another, when such killing is not murder in the first or second degree, or is not justifiable or excusable, as provided in this chapter, shall be deemed manslaughter.”

It is clear, then, that the legislature intended to permit the justification of a killing in self-defense, only in cases where it was necessary to prevent the commission of an apparent felony.

Section 1914 of the Code, which was' Section 523 of the Code of 1864, and which was adopted at the same time as the sections already referred to, provides :

“If any person shall purposely and maliciously, or in the commission or attempt to commit a felony, cut or tear out or disable the tongue, put out or destroy the eye, cut or slit or tear off an ear, cut or slit or mutilate the nose or lip, or cut off or disable the limb or member of another, such person, upon conviction thereof, shall be punished by imprisonment in the penitentiary for not less than one nor more than twenty years.”

It seems to me very clear that this section was intended to cover every case of great bodily harm, which would justify a killing in self-defense at the common law, and to make every such willful injury a felony.

Section 1371 of the Code, which was adopted by the same legislature at the same time and as a part of the same' act, as these other sections, and which was Section 3 of the act of 1864, provides:

“A felony is a crime which is punishable with death, or by imprisonment in the penitentiary of this state.”

It seems to me it is very clear that when these sections are construed together, any of the acts which would have been great bodily harm, under the definitions of the common law, are made mayhem and a felony under these statutes, and that, therefore, any of these things, and no others (except danger of death) would justify a killing in self-defense under our Code.

Section 1909 of our Code has been so construed by this court in at least four different cases, which must all be overturned in order to hold that any other assault, except a felonious one, would justify the taking of human life.

The charge complained of in this case was taken almost bodily from State v. Hawkins, 18 Or. 476, 487 (23 Pac. 475, 479), in which the court quotes the language complained of with approval, from State v. Neeley, 20 Iowa, 108.

“The law regards human life as the most sacred of all interests committed to its protection, and there can be no successful setting up of self-defense unless the necessity of taking life is actual, present, urgent; unless, in a word, the taking of his adversary’s life is the only reasonable resort of the party to save his own life or his person from dreadful harm or severe calamity felonious in its character.”

In State v. Olds, 19 Or. 397, 431 (24 Pac. 394, 403), Chief Justice Thayer, delivering the opinion of the court, said:

“The right, either of the state or an individual, to take human life, must be sanctioned by law. In the latter case it must appear that it was done to prevent the commission of a felony upon the individual, etc., as provided in Section 1730 of the Code.”

In State v. Smith, 43 Or. 109, 117 (71 Pac. 973, 976), Mr. Chief Justice Moore, delivering the opinion of the court, said:

“Before one can excuse his conduct in taking the life of another it must appear that it was done to prevent the apparent commission of a felony by the latter upon him.”

In State v. Doherty, 52 Or. 591, 596 (98 Pac. 152, 154), Chief Justice Robert S. Bean, delivering the opinion of the court, said:

“Pear of a slight injury is not sufficient, nor will a mere assault, not felonious, furnish an excuse for the taking pf life. If the intention of the assailant is only to commit a trespass or simple beating, it will not justify bis killing. * * But, considering the' relative age and strength of the parties or the ferocity of the attack, if the intended beating is of such a character as to endanger life or limb, then it will he felonious, and the assaulted person is justified in taking the life of the assailant if necessary to preserve his own or protect him from snch a beating.”

' The decisions of this court should, it seems to me, be like a steady light set in a high place to chart and direct the course which the lower courts can safely follow.

That the Circuit Courts have generally followed these decisions, strikingly appears, from the fact that practically the same instruction is now before us from the courts of two different jurisdictions in sections of the state remote from each other.

It is urged that there are cases, as in the instance of an assault by an insane person, or two persons out upon a plank in midocean, which will not hold them both, when a person would be justified in taking life to preserve his own, even although there was no felony intended or apparently intended. It seems enough to say that no such case is presented here, and there is no contention that any such facts' existed. It will be soon enough to decide upon such remote contingencies, when some such case actually occurs. In view of the recklessness of some people in the matter of human life, it may be doubtful whether it would be good policy for the legislature to say in advance, that the killing of another human being should go entirely unpunished even under such circumstances.

An indeterminate penalty with a minimum of only one year’s imprisonment for manslaughter is within the discretion of the trial judge, who hears all the evidence and knows all the facts, and who may be trusted to do as near as he can, what is justice in the cause. In addition to this, the law has provided the pardoning power in the Governor in extreme cases, where even the penalty of one year’s imprisonment for the taking of human life might be harsh and unjust. But whether or not there may be cases in which the court would be justified in stretching the law, or legislating an exception which does not exist, it is plain there was no such case here.

Notwithstanding its statutory correctness and the eminent authority for the same, we do not think the use of the word “felonious” is to be recommended in instructions of this kind. It is more or less technical in its meaning and may possibly be misunderstood and be confusing to the jury. Here, however, there was no request for further explanation or definition of the word, and indeed the defendant in his own requests for instructions used the same term in a similar connection. In the thirteenth instruction the defendant asked the court to tell the jury:

“Any serious bodily harm apprehended from a felonious attack did not merely excuse but would justify extreme necessity.”

And again in the fourteenth request the court was asked by the defendant to say to the jury:

“If then you should find in the consideration of this case that the defendant honestly believed that he was being feloniously assaulted, or had reasonable cause to believe or did believe he was in danger of death or great bodily harm, he would be justified in defending himself even to the extent of taking the life of his adversary.”

The assault upon the defendant in this case, if there was one at all, was with a loaded pistol and was of course deadly in its character., It was for the jury to decide whether or not the deceased made the first assault, as claimed by the defendant, and whether or not defendant afterward fired the fatal shot when it. was unnecessary to protect himself. The question as to this instruction is really purely academic in this particular case.

When there has been generally a fair trial it seems to me we should not be too ready to reverse a case on account of trifling matters. The lower courts have much to contend with and if we review their actions captiously and hypereritically, their judgments in any trials will seldom stand. The aim of the criminal law is not so much to punish the particular offenders, as it is to furnish a just example which will prevent others from committing crime. This is especially true in the matter of murder and felonious homicide. In such cases it is as essential that prompt justice should be done as that justice should be done at all. Every reversal, after there has been a fair trial, tends to dull the edge of justice and discourage its officers in the attempt to enforce the law. At the same time it encourages reckless and evil-disposed persons to a disregard of the sacredness of human life, and to believe that they can carve and shoot each other, upon small provocation, and safely trust to the postponement and evasion of any penalty. No innocent man should be permitted to suffer or be judged without a fair trial; but, on the other hand, no guilty one should be permitted to escape or postpone the penalty of his misdeeds upon any trifling cause.

17. Complaint is made of the conduct of the district attorney and it is claimed that, in his argument to the jury, he used the following language:

“You can’t get away from the fact that Bill Bntler shot that boy in cold blood. The fact that he was down in the other end with a Winchester — a fact asserted by Dutton and Jackson.”

Dutton and Jackson testified, as we have already seen, that they found a man at the west fence, and that he was behind the fence with a gun, which he pointed at each of them in turn, and they described as nearly as they could observe in the dim light, the clothes he wore and the gun which was pointed at them over the fence; and the clothes and gun which were concededly worn and used by the defendant on that night had been described to the jury for comparison. Dutton and Jackson, however, did not directly identify the defendant as the man they saw behind the fence, and it is therefore claimed the statement of the district attorney, that the defendant was down at the other end with a "Winchester “a fact asserted by Dutton and Jackson” was a misstatement and that the court below erred in not sustaining defendant’s objections and motion in relation thereto. It seems doubtful if this question is presented in such a way as to enable us to pass upon it here. The bill of exceptions signed by the judge shows no such occurrence and the original transcript, certified to by the official stenographer, is as follows:

“Mr. Eoberts made the statement that Bill Butler was at the west end of the field.

“By Mr. Boggs: Defendant objects on the ground that it is incompetent, irrelevant and immaterial and not evidence. ’ ’

“By the Court: ‘Gentlemen of the Jury, you are the exclusive judges of the evidence, and you will remember what the evidence was in that respect, and will consider what evidence was given and what wasn’t.”

Certain affidavits were filed on behalf of the defendant, asserting that the district attorney did make the statement complained of by defendant, and alleging that the attorney for defendant did make objection to the language and to the proceedings thereon; and it is claimed that these affidavits are sufficient to present the matter to this court under Section 170 of the Code. The affidavits presented are those of the attorney for the defendant, Grace Taylor, a stenographer, and one Olga Beiberstadt. The stenographer was not the official court reporter appointed by the court, but a stenographer employed by the defendant. There is no evidence that she was a “competent” stenographer, and indeed the report of the argument of the district attorney is so fragmentary, that it seems plain she did not get anything like a complete report of the same. The certificate of the clerk is the only evidence that any of these affiants were disinterested. He certified that the stenographer was a respectable and disinterested party, “unless the fact of her being employed by the defendant’s counsel would make her an interested party.” It does not appear whether she was in the general employ of the defendant’s attorney or only employed in-that particular matter. The certificate of the clerk as to Olga Beiberstadt is as follows:

“I believe the affiant to be a respectable party, but I do not wish to certify that affiant is disinterested for the reason that she and the other members of the family have followed the case quite closely and they were called as witnesses.”

It appears from the record that three of the Beiberstadt family were witnesses for the defendant in the cause. They were the nearest neighbors of the defendant, and evidently on very friendly terms. It was to the Beiberstadt home that the defendant went after the shooting, and where he remained until the arrival of the sheriff. It is apparent from the record that there was ample reason for the clerk to hesitate in certifying that Olga Beiberstadt was a disinterested party. It may also be considered as doubtful whether the stenographer who was in the employ of the defendant in this particular matter was disinterested within the meaning of the law. Again, Section 170, L. O. L., also provides:

“Such statement must be filed within ten days of the time that the objection is made, if the court at the time the objection is made refuses the exception; and if the disagreement does not arise until the time of the settling of the bill of exceptions, then the said statement may be made and filed within ten days of that time and not otherwise.”

There is no showing as to when the controversy arose (if there was a controversy) between the court and the attorneys for the defendant as to what took place, and no showing as to whether or not the affidavits were filed within ten days after the controversy arose. It appears from the record that the cause was tried in February, 1918. The bill of exceptions, however, was not settled until August 10th of the same year. The affidavit of the defendant’s attorney, and that of Grace Taylor, the stenographer, was sworn to on the ninth day of August, so that the controversy must have arisen, at some time prior to the settling of the bill of exceptions, but as to whether it occurred at the trial, or at some time between the trial and the settling of the bill of exceptions, does not appear. The affidavit of Olga Beiberstadt was not filed until August 17th. It seems impossible to say from the record whether the affidavits were filed within the time required by the statute or not. If they were not, of course they cannot be considered by this court.

If we should conclude that the record was in such shape as to present the question to the court at all, we should then have to pass upon the question of fact, as to whether or not the affidavit of these more or less interested parties — the attorney for the defendant — -the stenographer for the defendant, and Qlga Beiberstadt, a possible partisan of the defendant — overcome the showing made by the bill of exceptions, made and certified to by the judge who tried the cause and the official transcript of the official stenographer, certifying as to what took place at the time of the alleged occurrence. Even if the affidavits prevailed over the certificate of the judge and of the official stenographer as to the facts, there would still be a question as to whether upon defendant’s own showing any exception as to the alleged misstatement of the district attorney was properly and tangibly presented to the trial court. Section 170, L. O. L., provides:

“The point of the exception shall be particularly stated.”

The statement of the district attorney now complained of is, that the alleged fact that the defendant was at the west side of the fence was “asserted by Dutton and Jackson.” According to the affidavit the objection of the defendant’s attorney in the court below was as follows:

“If your honor please, defendant objects to the argument of the district attorney. Neither Dutton or Jackson testified that defendant was at the west side of his field that night. The fact that defendant did not testify while on the witness stand that he was not at the west side ,of his field that night is not an admission that he was there. There was no evidence that defendant fulled a gun on Button or Jackson. I object to all the argument of the district attorney, and ask the court to instruct the jury to disregard same, and that defendant did not admit that he was at the west side of the field that night, and that there was no evidence that defendant fulled a gun on Dutton or Jackson, and that neither Dntton or Jackson testified that defendant was at the west side of his fence that night.”

There is so much in the objection and motion, even according to the claim of defendant, and the matters complained of are so blended and confused, that it would have been very difficult, if not impossible, for the court below to have disentangled the good from the bad. It is perfectly apparent that the objection and motion could not have been sustained as a whole. The exception, if there was any, was to the ruling of the court upon the motion as a whole, and otherwise no particular point was presented, as required by the statute. But assuming (but not deciding) that the affidavits were filed in time — that they were sufficient to present the question to the court and that these affidavits prevail over the certificate of the trial judge and the official stenographer; and assuming, further, that the defendant had complied with the law in pointing out the particular point of his objection; we are still of the opinion that there was no such error as would justify a reversal of the cause. It seems to us that the assumption by the district attorney that the witnesses Dutton and Jackson had identified the defendant was more in the nature of a misconstruction of the testimony than a positive and willful misstatement.

The witnesses, Dutton and Jackson, had stated that they saw someone at the west side of the field, and that that person had pointed a gun at them over the fence, as stated by the district attorney, and they had described that person, his clothes, and his gun as nearly as they could on account of the semidarkness and excitement. From the description of the clothes and the gun and the circumstances and the fact that the defendant admitted he was up there at the field with a gun that night, the district attorney jumped to the conclusion that the person Jackson and Dutton saw at the west side was the defendant, and generalized the whole matter by stating that they saw the defendant up there. It would be going much too far, it seems, to hold that such a too-strong construction of the testimony, by an attorney in the heat of argument, is sufficient cause for the reversal of a ease.

The court below submitted the whole matter to the jury who were really .the final arbiters, as to what the testimony really was. The judge, in effect, told them to disregard the statements of the district attorney if they were not sustained by the evidence. No court can be expected to hold every detail of the testimony in a long case in his mind, so that he can say upon the spur of the moment exactly what the testimony was. And he ought not to be required upon a general objection like this, covering a number of different points, to stop the proceedings of the trial and go through a long record from start to finish to ascertain just what was the exact testimony as to each of the different matters covered by the motion. It goes without saying that every attorney should keep within the evidence and if he willfully makes a misstatement as to the testimony upon an important matter, it may be sufficient cause for a reversal. We do not think such a result would be justified from the circumstances in this case.

There are some other minor claims of error, to which we have not specifically referred, but all of which we have carefully considered, and we think the rulings of the court thereon were not erroneous.

Upon the whole the defendant seems to have had a fair trial and the court below seems to have striven to preserve and secure for him all of his rights. Many of the rulings of the court were more favorable to the defendant perhaps than the law would justify.

The judgment is affirmed.

Affirmed. Rehearing Denied.