106 P. 638 | Or. | 1910
Lead Opinion
delivered the opinion of the court.
Hans Goodager was indicted and tried for murder in the first degree for the killing of Tony Moer, found guilty of manslaughter, and sentenced to 12 years’ imprisonment, from which this appeal is prosecuted.
“You are further instructed in relation to the law of self-defense, that one cannot claim its benefits after he had intentionally put himself where he knows or believes he will have to invoke its aid. Circumstances justifying an assault, in the law of self-defense, must be such as to render it unavoidable. If you find from the evidence, and beyond a reasonable doubt, that defendant sought an altercation between himself and Tony Moer, the deceased, or find from the evidence beyond a reasonable doubt that the defendant could, without any unreasonable or unnecessary surrender of his own rights and privileges, have avoided any altercation between himself and Tony Moer, the deceased, it was the duty of the defendant to avoid such altercation, and so render a resort to the law of self-defense unnecessary.”
This instruction constitutes one of the principal errors assigned, and appears to have been taken from one given and quoted in State v. McCann, 43 Or. 155, 159 (72 Pac. 137). It is admitted the defendant was, at the time of the tragedy, in his. place of business, and engaged in a lawful occupation. Under these facts it cannot unqualifiedly be held that, by reason of being there on the occasion of the difficulty, defendant could not avail him
“The language employed by the court in the instruction complained of must be read in the light of the surrounding facts. It is possible that, under some circumstances, the charge might be subject to objection, for in a free country it is not expected that one person shall flee from another, and it may be that the demands of business might require one intentionally to go where he knows or has reason to believe he may be in imminent danger, and possibly compelled to resort to force as a matter of self-defense.”
This is clearly applicable to the case under consideration. The defendant may have known that, by reason of his occupation, making it necessary for him to be in the saloon on the occasion, and to remain there, he was placing his life in danger, or was in danger of great bodily harm. But he had a lawful right to be there, and it was not incumbent upon him to abandon his premises to his adversary, even though by so doing he might avoid an altercation.
2. The jury may have inferred from the instruction, as they easily might have done, that, because of defendant remaining in the building after the controversy arose, he was not entitled to invoke the aid of self-defense, and although, under the proof, they may not have deemed themselves justified in finding him guilty of either of the higher degrees, they may have thought that, since the accused was deprived of the right of self-defense, it became their duty, under the instruction, to find him
“When it is manifest that an error has been committed, prejudice will be presumed, unless it affirmatively appears from an inspection of the record that no prejudice could have resulted therefrom.”
This condition the record does not disclose, nor are any facts conceded from which we may infer its harmless effect. We are impelled, therefore, to hold the error prejudicial, necessitating the granting of a new trial.
3. In view of a new trial other errors assigned will be considered. Counsel for the defense, at the trial, attempted to lay a foundation for the impeachment of one of the State’s witnesses by reading to him questions and answers in his testimony, taken at the defendant’s preliminary examination. To this character of examination objections were made and sustained, .the trial court holding the questions and answers could not be read seriatim to the jury, and indicated, as the proper procedure, the interrogation of the witness as to any statements claimed to have been made by him on the occasion, concerning which the inquiry was intended to be made. To these rulings exceptions were taken by the counsel for defense, who stated the excluded line of inquiry was for the purpose of laying a foundation for impeachment. Under the well-settled rule in this State the method of inquiry attempted is not permissible, and no error was committed in its exclusion. Written statements, purporting to have been made by a witness, must first be exhibited to him, before any question may be put concerning the statements therein. In fact the statute expressly so provides. Section 853, B. & C. Comp.; State v. Steeves, 29 Or. 85 (43 Pac. 947); State v. Crockett, 39 Or. 76 (65 Pac. 447). This was clearly held in the case last cited, where the defense, without having first shown to the "witnesses the
“If, from the form of a question propounded to a witness, the answer is apparent, it is not necessary for counsel, when an objection is interposed, to state to the court what reply is reasonably expected to the interrogatory, for that is obvious.”
See, also, Whale v. Gatch, 42 Or. 251, 254 (70 Pac. 832). Another exception to the rule is where the testimony sought to be elicited- is on cross-examination, as in the case at bar (8 Ency. P. & P. 238, and Clark v. Sleet, 99 Va. 381: 38 S. E. 183), under which circumstances it is manifest that this rule should not be invoked; to db so would often convey to the witness the very facts not desired to be disclosed, and such disclosure, it is obvious, would frequently tend to defeat the very purpose of the cross-examination. To require a statement of the facts expected to be obtained from an adverse witness would, in effect, be to demand that counsel should speculate upon the probable answer of the witness, or to deal unfairly with the court: Cunningham v. Railway Co., 88 Tex. 534 (31 S. W. 629). Nor is this view inconsistent with the holding in State v. Savage, 36 Or. 191, 216 (60 Pac. 610: 61 Pac. 1128), as contended, in which the point was neither presented nor considered. It is only necessary, therefore, on cross-examination, in the event the question or line of inquiry does not suggest the purpose thereof, that its object be stated in a general way, or in some manner not calculated to apprise the witness of the special purpose of the inquiry. Such method was pursued in this instance; the counsel stating his object to be the laying of a foundation for the impeachment of
But, for the error in giving the instruction considered, the judgment will be reversed and a new trial ordered;
Reversed.
Rehearing
Decided April 26, 1910.
On Petition for Rehearing.
[108 Pac. 185.]
delivered the opinion of the court.
The State petitions for a rehearing, basing its principal contention on the ground that the record fails to show the conceded facts alluded to in the opinion.
6. Furthermore, counsel cannot be heard at an oral argument upon one theory or one state of facts, there admitted, and, after receiving an adverse decision predicated thereon, return by motion for rehearing, and urge in such motion, and at such hearing, that the facts previously conceded, and upon which the decision was rendered, are not in harmony with the record, and ask that he again be heard upon a different theory. Experimenting with the court in such manner, whether by design or oversight, cannot be sanctioned. To countenance such action would leave both the court and the litigants powerless to determine when litigation is terminated, and the object sought thereby defeated in the end by the hypothetical practice so established. The motion for rehearing is denied.
Reversed: Rehearing Denied.
