57 P. 197 | Or. | 1899
delivered the opinion of the court.
This is an appeal from a judgment of death pronounced by the circuit court for Polk County against the defendant W. G. Magers, upon his conviction of the crime of murder in the first degree, alleged to have been committed by killing one Andrew Raymond Sink. The assignment of error chiefly relied upon for reversal relates to the action of the trial court in refusing to declare to the jury when the sun set on September 13, 1898. It is deemed necessary to a proper understanding of the point insisted upon to state a portion of the evidence which
In People v. Kee, 61 Cal. 404, the prosecuting attorney was permitted to read from Ayer’s Almanac to prove when the sun rose on the day of the commission of an alleged offense, and it was held that, inasmuch as the court was obliged to take judicial notice of the rising of the sun, no error was committed. Mr. Justice McKee, speaking for the court, says : “The fact for the proof of which the almanac was offered was one of those facts of which a court may take judicial notice. Formal proof of it was therefore unnecessary. It would have been sufficient to have called it to the knowledge of the judge at the trial; and if his memory was at fault, or his information not sufficiently full and precise to induce him to act upon it, he had the right to refer to an almanac, or any other book of reference, for the purpose of satisfying himself about it, and such knowledge would have been evidence.” In State v. Morris, 47 Conn. 179, the defendant being upon trial for burglary, the state was permitted to offer in evidence an almanac for the purpose of showing at what hour the sun set on the day when the crime was alleged to have been committed; and it was held that its admission was not prejudicial, the court saying :
“Twilight” is defined in Webster’s International Dictionary to be: “The light perceived before the rising, and after the setting, of the sun, or when the sun is less than eighteen degrees below the horizon, occasioned by the illumination of the earth’s atmosphere by the direct rays of the sun, and their reflection on the earth.” The length of twilight necessarily depends upon the time of the year, and the distance from the equator. At the summer solstice, twilight lengthens in northern latitudes as the distance from the equator increases, until a point is reached at which it lingers from the setting to the rising of the sun. Considering the words “twilight” and “dusk” as synonymous, the terms so used are qualified by the sentence, “being about fifteen minutes after sun
The evidence, as far as it tends in any manner to connect the defendant with the commission of the crime, except that the deceased was lase seen alive in his company, is wholly circumstantial; and, this being so, in discussing the grade of the offense we shall assume, as the defendant contended, that some other person is responsible for the killing. While it is barely possible that the wounds found upon Sink’s body might have resulted from his precipitation .from the bridge, the fact that his hands were tied gives rise to the inference that his life was taken by human agency, and that his body was thrown into the river to hide the evidence of a grave crime. If a person, without previous preparation, take
In the celebrated case of Commonwealth v. Webster, 5 Cush. 295 (52 Am. Dec. 711), circumstantial evidence was relied upon to establish the defendant’s guilt, notwithstanding ■ which Mr. Chief Justice Shaw instructed the jury upon the law applicable to manslaughter as well as to murder, but in doing so said : “We have stated these distinctions, not because there is much evidence in the present case which calls for their application, but that the jury may have a clear and distinct view of the leading principles in the law of homicide. There seems to have been little evidence in the present case that the parties had a contest. There is some evidence tending to show the previous existence of angry feelings ; but unless these feelings resulted in angry words, and words were followed by blows, there would be no proof of heat of blood in mutual combat, or under provocation of an assault, on the one side or the other, and the proof of the defend
“The cardinal distinction,” says Mr. Justice Collibe, in Territory v. Padilla, 8 N. M. 510 (46 Pac. 346), “between all homicides not shown by eye-witnesses and homicides where the killing is shown by eye-witnesses, is that as to the former class the jury must weigh the circumstances, and determine what degree of murder is proven, while as to the latter the court may instruct the jury as to a single degree, or two degrees, or all the degrees, as, or not, the evidence may be applicable to one or more degrees. If the secret killing were shown to be by poison or torture, or necessarily in the commission of, or attempt to commit, a felony, or by lying in'wait, then, also, even in cases of circumstantial evidence, the court may restrict instructions to first degree. If the rule were that every secret homicide presumes murder in the first degree, then the slayer of a man whose body is found pierced by bullets, having in its hand a weapon recently discharged, is placed in the same category as he who has slain unseen a defenseless woman, whose polluted corpse bears evidence of the utmost atrocity. Such a rule is not reconcilable with reason, of which law should be the perfection ; and the only escape from it is for the jury, and not the judge, to weigh all the circumstances which may satisfy their minds as to how the secret killing may have been effected, and determine the degree of the
The statute, Hill’s Ann. Laws, § 200, in prescribing the method of giving instructions, reads as follows : “In charging the jury, the court shall state to them all matters of law which it thinks necessary for their information in giving their verdict, but it shall not present the facts of the case, but shall inform the jury that they are the exclusive judges of all questions of fact.” Notwithstanding which, the rule is well settled, that on a trial of a person for the crime of murder, if there is no evidence tending to reduce the homicide to manslaughter, it is not incumbent upon the court to charge with reference to the lesser crime; but if there is any evidence, direct or indirect, however slight it may be, that tends in any manner to show that the killing was done in the heat of passion, or under such circumstances as to eliminate the element of malice, prejudicial error is committed if the court fail or refuse to instruct the jury upon the law applicable to manslaughter: Kerr, Plom. § 526 ; 2 Thompson, Trials, § 2322 ; State v. Garrand, 5 Or. 216; State v. Whitney, 7 Or. 386; Hart v. State
In'those jurisdictions in which the rule prevails of imposing upon the accused the burden of proving facts which tend to reduce the grade of the offense below murder in the second degree, the presumption of malice is not invoked, except upon clear proof of the killing by the party charged therewith. Mr. Chief Justice Shaw, in Commonwealth v. York, 9 Metc. (Mass.) 93 (43 Am. Dec. 373), quoting from Foster’s Crown Law, as illustrating this doctrine, says : “In every charge of murder, the fact of killing being first proved, all the circumstances of accident, necessity, or infirmity are to be satisfactorily proved by the prisoner, unless they arise out of the evidence imoduced against him ; for the law presumeth the fact to have been founded in malice, until the contrary appeareth.” In Commonwealth v. Hawkins, 3 Gray, 463, Mr. Chief Justice Shaw, interrupting defendant’s counsel, who was proceeding to argue to the court in support of the dissenting opinion of Wilde, J., in Commonwealth v. York, said: “The doctrine of York's Case was that where the killing is proved to have been committed by the defendant, and nothing further is shown, the presumption of law is that it was malicious, and an act of murder.” Where, however, the killing is not proved by any eye-witness to have been done by the party charged therewith, and circumstantial evidence is relied upon to establish his guilt, an instruction to the jury, in the absence of any evidence tending to show the manner of the killing, that they may return a verdict of guilty of mui’der in the first or second degree only, is to infer from the circumstances that the defendant com
Assuming that the exception taken to the instruction was equivalent to a specific request to charge the jury on the law applicable to manslaughter, there was no proof of any circumstances from which the court could say, as a matter of law, that the deceased was maliciously killed. It might reasonably be inferred, from the wounds found on Sink’s body, and the fact that he died from the effects thereof within a year, that he was killed by means of deadly weapons ; and, if it could be inferred that such weapons were deliberately used, the law would conclusively presume an intent to murder (Hill’s Ann. Laws, § 775, subd. 1) ; but, in the absence of any circumstances tending to show malice, it was the special province of the jury to say by their verdict whether the weapons which caused the death were used deliberately.
The state having called one Dr. John Stott, a practicing physician, who testified that he made a microscopical examination of some coloring matter found upon a splinter of wood taken from the bottom of the buggy used by defendant and deceased on September 13, 1898, and compared it with specimens of fresh human blood, with the result that they were practically the same, the following question was propounded to him on cross-examination : “Where blood is exposed to the atmosphere