87 P. 535 | Or. | 1906
delivered the opinion.
The defendant, John Branton, was accused by an information of the crime of assault with intent to kill, alleged to have been committed as follows:
“The said John Branton on the 9th day of March, A. D. 1905, in the said County of Lane and State of Oregon then and there being, did then and there with a certain revolver gun, loaded with gunpowder and leaden bullets and capable of being discharged, unlawfully and feloniously assault John Fletcher with the aforesaid gun by feloniously shooting and wounding him, the said John Fletcher, with said revolver gun, with intent him, the said John Fletcher, to kill and murder, contrary to the statute in such case made and provided, and against the peace and dignity of the State of Oregon.”
' A demurrer to the information, on the ground that it • attempted to charge the commission of more than one crime, was overruled, and, the cause being tried, the defendant was found guilty as charged, and appeals from the judgment which followed.
“If any person shall assault another with intent to kill, * * such person, upon conviction thereof, shall be punished/’ etc.: B. & C. Comp. § 1767.
A kindred enactment is as follows:
“If any person, being armed with a dangerous weapon, shall assault another with such weapon, such person, upon conviction thereof, shall be punished,” etc.: B. & C. Comp. § 1771.
It may be supposed that a person might intentionally attempt by violence to do another a bodily injury with a deadly weapon, without an intent to take the life of the person so assaulted. So, too, it can readily be seen that a person might assault another with a destructive instrument with intent to take the life of the .latter. The design with which a deadly weapon is used in making an assault determines the grade of the offense, and, when a purpose to take the life of another accompanies the overt act, it augments the crime to an assault with intent to kill. A specification of such charge may, therefore, include the accusation of an assault with a deadly weapon: 1 Bishop, New Crim. Law, § 780, subd. 3; 1 McClain, Crim.
2. It is maintained by defendant’s counsel that the court erred in admitting, over objection and exception, certain immaterial manuscript, claimed by the prosecuting attorney to have been written by the defendant, without proof of such writings having been admitted or treated by him as genuine. The documents so received were introduced in evidence to establish a standard ■of comparison with the defendant’s handwriting for the purpose ■of proving that he inscribed a letter that came by mail, addressed to the specified officer of the town where it purports to have been written, of which the following is a copy:
“Cottage Grove Or Mch 8 95
Marshel i leave this note to show that i have took my life :and you will find me on the road between town and branton ranch i am tired living and leave this to save troubel for my friends and expence to the county.
good Bye.
J. Fletcher.”
As tending to incriminate the defendant, a fellow prisoner, who was confined with him in the Lane County jail, appearing .■as a witness for the state, testified that the defendant, referring
“Astoria, June, 1905.
Eugene. ” ■
Mr. J. W. Williams as i am the gilty one in the Branton case i cant fase him in it so i aslc you have him turned loose
J fletcher.”
Mrs. Della M. Wetzel, a sister-in-law of -the defendant, testified that she had corresponded with him, and, referring to letters purporting to have been written by him to her, January 24, 1892, and September 3, 1901, she stated that he told her he •wrote them; that after she received a similar letter, dated June 28, 1903, she discussed with him the subject-matter and contents thereof; and that, alluding to a like letter of December 20, 1901, he inquired of her if she had told her father what he wrote her therein. These letters, over objection and exception, were received in evidence for the sole purpose of proving the basis of a comparison of handwriting, and are numbered, respectively, Exhibits 1, 2, 4 and 5. D. Linebaugh testified that the defendant, in his presence,' subscribed his name to a note which stipulated for the payment to him of a sum of money, which written promise, over objection and exception, was received in evidence and numbered Exhibit 6. Several witnesses were thereupon called by the state, each of whom, having testified as to his qualifications,- severally expressed, over objection and exception, an opinion that the letters, copies of which are hereinbefore set out. when compared with Exhibits 1, 5 and 6; wére written-.by the defendant.
“The handwriting of a person may be shown, by any one who believes it to be his, and who has seen him write, or has seen writing purporting to have been his, upon which he has acted or been charged, and who has thus acquired a knowledge of his handwriting”: B. & C. Comp. §776.
“Evidence respecting the handwriting may also be given by a comparison, made by a witness skilled in such matters, or the jury, with writings admitted or treated as genuine by the party against whom the evidence is offered”: B. & C. Comp. § 777-
In Munkers v. Farmers Ins. Co. 30 Or. 211 (46 Pac. 850), Mr. Justice Bean, speaking for the court in construing the section last quoted, settles the question raised by saying: “Under this statute it is clear that any writing which is admitted to be or treated as genuine by the party against whom the evidence is offered may be used for the purpose of comparison with the writing or signature in question, although it may not be admissible in evidence for any other purpose.” See, also, 15 Am. & Eng. Enc. Law (2 ed.), 267, note 3. In Holmes v. Goldsmith, 147 U. S. 150 (13 Sup. Ct. 288: 37 L. Ed. 118), in interpreting the section of the statute last referred to, it was held that, when the genuineness of a paper sued on is put in issue) papers not otherwise competent may be introduced in Oregon for the purpose of enabling the jury to make a comparison of handwriting,
It was argued at the trial herein that a party against whom writings may be offered in evidence could have admitted or treated them as genuine without ever having written them himself, and as such manuscripts are received- as a basis of comparison of penmanship, he might be convicted upon the authorized writing of a person who theretofore had been his' clerk, and, this being so, the rule adopted in the cases referred to should not be applicable in the trial of criminal actions, and that the testimony of a .witness that she discussed with the defendant the contents of a letter purporting to have been written by him to her is not sufficient evidence in a ease' of this kind that he wrote the letter, and hence the basis for the comparison necessarily fails, and the error in admitting such letter becomes manifest. The sections of the statute hereinbefore quoted relate to the same subject-matter and should be construed together. Considering these clauses in that manner, it is the genuine, handwriting of the person against whom the evidence is offered, that has been admitted or treated by him as such, that must be taken to form the basis of comparison of penmanship, and not such documents as might be valid and binding on him, though written and signed by another at his request. The bill of exceptions discloses that Exhibits numbered 1, 2 and 5 were severally admitted and treated by the defendant as having been written- by him, and that he subscribed his name to Exhibit No. 6. Exhibit No. 4 .is as follows:
“Cottage Grove Or. June 28th — 1903. Dear Sister and family and all the rest of the folks.
We are all well except Boy he has the measeis I hope you are all well I got my hay in the barn before the rain that is all I had cut it is raining now I have about 12 acres reasy to cut now Well I will tell you about me going to get married I shall marry on the evening of the 9 of July at (0 Clock I will let you no in time so you can make calculation on the 4 if you want to go You peopel can come up to me place and go to town in the evening or if you want to just come to Mrs Dowens and then*93 come on the next day We dont expect to have very many at our weding Come if you can rite and let me no if you are coming. Well I will close Tours as ever John T. Branton.
Send Mancey and nell Word.”
It will be remembered that Mrs. Wetzel testified that after receiving this -letter she discussed with the defendant the subject-matter and the contents thereof. She also testified that she had frequently seen him write and recognized his penmanship.
“It is therefore ordered that the said defendant John Branton he confined in the penitentiary of the State of Oregon for the term of ten years, and that he pay the costs of this prosecution.”
The word “considered,” when used by. a court to express the final conclusion reached on the trial of an issue, or on the admission or confession of a party, has been deemed appropriate; but other words have been held equivalent thereto: 1 Freeman, Judgments (4 ed.), §46. This, when in a criminal action which condemns the prisoner to be punished and sets forth par
No prejudicial error having been committed, and the judgment being sufficient, it is affirmed. Affirmed.