11 Or. 178 | Or. | 1883
13y tlie Court,
The appellant was indicted by the grand jury of Jackson county for the crime of murder in the first degree, committed by shooting and killing William Justus, his father; for which he was tried at the June term of the circuit court of that county, and found guilty as charged, and sentenced to be hanged. From that judgment he brings his appeal to this court. Among the errors relied upon to question the correctness of that judgment and secure a new trial, is the fact, as disclosed by the record, that a person, not authorized by law, was present before the grand jury, at the request of the district attorney, for the purpose of assisting them in the examination of witnesses, and in framing the indictment. That any person other than the dis
The next assignment of error is the overruling the objection of the appellant to the admission of certain pasteboard targets as evidence. It appears by the bill of exceptions that one James Birdseye, by direction of the coroner, and in the presence of the coroner’s jury, made several experiments with the gun, with which the defendant claimed he had accidentally killed his father, by discharging it at certain targets made out of pasteboard, at different distances, respectively marked upon them. The coroner, Mr. Huffer, being on the witness stand, the prosecuting attorney, in the presence of the jury, exhibited to him these targets, to the admission of which the objection was made, which he identified, and further testified as follows: that “he saw the defendant’s gun tested at different distances, and that the distances were marked respectively on the targets; that he saw the gun loaded when the experiments were made; that the loads of powder were a charger full, and that the charger was the one on the pouch used by the defendant.” Birdseye, who had loaded and fired the gun, testified: “T loaded
With this explanation we now come to the pasteboard targets which were admitted in evidence against the objection of the defendant. Their object was to rebut the defense of accidental killing by showing that the statements of the prisoner upon which this defense was based, was inconsistent with what it was claimed the inferences from the target experiments would prove to be the circumstances of the case. As no one was present, except the prisoner, when the deceased was killed, and as his statements were inconsistent with the theory of a “near” gun shot wound which the prosecution claimed was the cause of the death, the object of the experiments, made on the paste board targets which
Now it must be manifest that there are here noted so many marked characteristics of near gunshot wounds which could by no possibility be reproduced, or represented by experiments upon pasteboard, yet upon which the fact of a near wound is made to depend, and often to be determined, that it would be utterly unsafe to apply the inferences sought to be deduced from such experiments to the fact in dispute, unless there can be found in such experiments, and the subject matter which it is their object to explain or illustrate, some point of similitude or ground of common resemblance, always present, as a result induced by a similarity of conditions or circumstances. It may be suggested that some identity of resemblance may be traced in the powder burns exhibited by the experiments as the result of near shots, and in the wounds of the deceased which the medical authorities indicate, are usually, if not always present in “near” wounds. But when, as here, the casé is not susceptible of direct proof, and the fact. in issue—whether the ball was fired near or from the distance—depends of necessity for a correct determination, upon the appearance of the wound, the fact and its experienced consequences does not belong to the ordinary information of men, but lies within the limits of a particular branch of medical science, and requires to be proved by persons skilled in it, the better to enable the jury to reach a safe conclusion. In Rush v. State, 61 Ala., 89,
In Commonwealth v. Piper, 120 Mass., 188, it is held that unless the experiments are shown to have been made under conditions the same as those existing in the case on trial, the tendency is to confuse and mislead thé jury. (Edit v. Cutler, 127 Mass., 523.) And in all the cases which have come under our observation, where such evidence has been held as admissible, the experiments were made with like means on the same kind of stuff or substance, or were based on a similarity of conditions or circumstances whereby the results produced betray with some certainty and uniformity, a common similitude or agreement, and as a
The next assignment of error is the refusal of the court to give an instruction asked for by counsel for the defendant, to the effect, that if there was a reasonable doubt in the mind of the jury as to whether the killing was done pur