85 P. 998 | Or. | 1906
delivered the opinion of the court.
The defendant, John C. Barnes, was indicted, tried, and convicted of the crime of murder in the first degree, al
The entire testimony given at the trial is sent up with the bill of exceptions, from which it appears that on Monday, May 1, 1905, at about 10 o’clock in the forenoon, a human skeletem was discovered in a burning log heap a few feet east of the right of way fence near the railroad, about a mile and a quarter north of Glendale. Nearly all the flesh had been consumed, and there remained of the framework intact only the skull, the vertebrse, and parts of the shoulder and of the hip bones. The structure of the skeleton indicated the death of a small person, but it was impossible to distinguish the sex. A soft black hat, having two matches stuck in the band, was found at the same time, hidden beneath the loose bark of a stump near the fire. There were also discovered in the ashes about where the hips of the skeleton lay, a three-bladed pocket knife, and near it some nails that had probably been driven in the soles and heels of the shoes worn by the deceased. In the immediate vicinity were seen some dark spots on the grass, earth, and stones, supposed to be blood stains, and the grass appeared to be lodged, as if some object had been dragged over it. After quite a number of persons had visited the place where the skeleton was found, a leather belt and a purse were discovered in the brush about 40 feet from where the fire had been. It further appeared that Graham, the man charged to have been killed, was
The testimony tending to connect the defendant with the commission of the crime shows that he and Graham were gold miners who were acquainted with, and had lived near, each other on Dadd’s Creek, Douglas County, for several months until Thursday, April 27,1905, when Graham moved across Cow Creek to Tuller’s Creek, several miles westerly, and was last seen as he crossed the railroad going to his new residence. The defendant on the next day borrowed a Winchester rifle from a neighbor, telling him that he desired to shoot a wounded deer which he had seen. That evening, as he returned with the gun, he found two men at his cabin who had been hunting for stray cattle, to whom he stated that Graham claimed to be a “bad man,” and referring to the latter he remarked : “If he makes a crooked move at me, I will kill him.” He further stated to his visitors that they need not arise when he did the next morning, for he was obliged to get up early so as to meet a man at a tunnel on the railroad. Barnes left his cabin Saturday morning about 4 o’clock, taking the rifle with him, and five hours thereafter he was in the town of Glendale, 10 miles southerly, where he paid a bill which he owed a merchant, and received a sum of money in ex
Sunday evening Barnes went south on the train towards Glendale. The next morning, May 1,1905, which will be remembered as the day when the skeleton was found, he called at a saloon in that town about 5 o’clock and, waking the barkeeper, he secured a drink of whisky. At 1 o’clock that day he was about a mile and a quarter north of Glendale, where he met one W. H. Pruett, to whom he stated that Graham had gone to Mule Creek, a tributary of the Umpqua River, prospecting, and that he had purchased from him some sluice boxes and was going to his cabin after them. Pruett told him the boxes referred to never belonged to Graham, but had been owned by another person from whom the narrator purchased them. Barnes, upon receiving this information, remarked: “I am so
It will be remembered that the parts of the skeleton found in the burning log heap, indicated the remains of a small person. This fact alonéis not controlling on the question of identity, for the human framework discovered might have been that of any person corresponding in stature with Graham (Commonwealth v. Webster, 5 Cush. 295, 52 Am. Dec. 711), but when this circumstance is considered in connection with the other attending conditions, we think the jury were authorized in concluding as the verdict implies, that the remains were those of the person charged to have been killed. The consumption of a human body by fire does not necessarily repel an inference of suicide or of an unintentional death, for the dissolution may have been caused by purposely leaping or accidently falling into a fire, or by being unable to escape from a burning building. So, too, a human body may be destroyed by that means after death had resulted from natural causes. The finding of the remains of a healthy person, like Graham, in a burning log heap, where escape was possible in case contact with the fire was accidental, and probably, where immediate intense pain resulting from the flame would cause an abandonment of an attempt at self-destruction, must necessarily repel every inference of death by means of such a fire. This conclusion is fortified by the testimony of a locomotive fireman who said that on Monday, May 1,1905, at about 2:20 A. m., he saw, on the east of the railroad, about a mile and a quarter north of Glendale, a fire and a man standing by it. From this declaration under oath it would seem to appear that the fire which consumed Graham’s body was not ignited by him. The evidence of what was supposed to have been blood stains in the vicin
An exception was taken by defendant’s counsel to the admission of testimony as to the finding of Graham’s diamond ring, on the ground that the circumstance was too' remote, indefinite and uncertain. In Morris v. State, 30 Tex. App. 95 (16 S. W. 757), testimony of the finding in a well of a watch, the property of a person charged to have been killed, several months after the alleged murder, was held admissible in connection with other evidence proving that on the day the defendant was arrested he had access to the well and could have thrown the watch into it. It will be remembered that on the day Barnes was arrested there was found in his sack of potatoes a small roll of tinfoil, the identity of which was reasonably accounted for, which being unwrapped revealed Graham’s diamond ring. Evidence of this circumstance in connection with the others was, in our opinion, admissible. In the case of State v. Anderson, 10 Or. 448, the defendant’s contradictory statements as to the whereabouts of the missing person were also regarded as tending to create an inference of his guilt. In the case at bar Barnes stated that Graham had gone to Mule Creek prospecting and afterward that he had gone to California, sayingthat Graham had a few dollars, thereby implying that he was able to travel by rail. As Mule Creek is situated west of Glendale and California south of that
Believing that the attending circumstances adverted to-are of the character indicated, and that other alleged errors that have'been assigned are unimportant, the judgment is affirmed. Affirmed.