98 P. 152 | Or. | 1908
Opinion by
The defendant was tried and convicted of murder in the second degree for shooting and killing one Oscar Allen in a saloon in the town of Lexington, on December 20, 1907, and from the judgment, sentencing him to the penitentiary for life, he appeals.
Allen was working for one Padburg on a farm near the town, and on the night of the tragedy he and his employer were in town and spent most of the evening at a saloon kept by one Inskeep. Allen had been engaged' in a game of cards early in the evening, but about two hours before he was killed had withdrawn from the game, and, while waiting for Padburg to get ready to go home, lay down on a billiard table in the back room of the saloon and went to sleep. Defendant had been in the saloon some time early in the evening, had taken a drink or two, went away, and returned again about 10 or 11 o’clock. After remaining in the front room about an hour, talking to Padburg, Bereshears, and Lane, the bartender, during which time he had several drinks, he offered to buy the drinks “for the house,” and Padburg went into the back room where Allen was sleeping and awoke him, telling him to get up: “Dan (the defendant) is buying a drink for the house. Get a drink, and we will go home.” Allen got up, went into the front room,
All the witnesses, who were present at the time, except defendant, say that, as far as they could see, Allen did not strike defendant, but missed him, and that defendant was standing when he did the shooting. Defendant testified, on his own behalf, that Allen struck him on the chest, and he fell to the floor, and while on the floor took out his gun and fired one or two shots, then got up, and fired three more, as Allen was moving backward.
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The judgment is affirmed. Affirmed.