88 P. 306 | Or. | 1907
delivered the opinion of the court.
The facts stated by these jurors are practically identical with the facts stated by the jurors in the case of State v. Amstrong, 43 Or. 207, 217 (73 Pac. 1022). That case and the cases therein cited from this court upon the same point are conclusive upon the point raised here. The challenges were properly disallowed. It is claimed, however, that the case at bar is within the rule of State v. Miller, 46 Or. 485, 491 (81 Pac. 365). In that case the defendant, having exhausted all his peremptory challenges, was compelled to take a juror who had a fixed and positive opinion formed from hearing at least part of the testimony given at the former trial by the widow of the deceased, and from hearing other witnesses at such trial detail the testimony given by them. In other words, he had formed his opinion from what he had heard from witnesses who claimed to know the facts and had testified to them at a former trial, and not from hearsay and newspaper reports, as did the jurors in this case. That ease is not applicable, here.
8. Certain principles, well established by this court, are applicable to the disposition of the questions raised upon the giving and refusal of instructions in this ease: First, the instructions must be considered as a whole, and, when so considered, if they are substantially correct and could not have misled the jury to the prejudice of the defendant, the judgment will not be reversed because some instruction considered alone may be subject to criticism: State v. Anderson, 10 Or. 448; State v. Hansen, 25 Or. 391 (35 Pac. 976, 36 Pac. 296); State v. Tarter, 26 Or. 38, 43 (37 Pac. 53); State v. Bartmess, 33 Or. 110, 126 (54 Pac. 167); State v. Gray, 46 Or. 24 (79 Pac. 53); 1 Blashfield, Inst, to Juries, 902.
Error is assigned in the refusal to give 21 separate instructions requested by the defendant, but it is unnecessary to note each instruction refused, since most, if not all, of them applicable to the ease were covered by the general charge.
“The law presumes the defendant to be innocent of any ■offense, and this presumption follows him in the trial of this ■case until the contrary is shown beyond a reasonable doubt, and, in order to warrant a conviction of any or either of the offenses T have named, this presumption must be overcome by competent ■evidence which convinces you of his guilt to a moral certainty, •and, if the evidence in this case does not satisfy you beyond a reasonable doubt of the defendant’s guilt of murder in the first •degree, it is your duty, under the oath you have taken, to acquit the defendant of the charge of murder in the first degree.”
It is conceded that a portion of this instruction was covered ■ by the following instruction given by the court, to which no ■exception was taken:
“The defendant in any case is presumed to be innocent until the contrary is proven. In case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to be acquitted, .and, in that case, your verdict should be ‘Not guilty.’ ”
But it is claimed that this instruction did not go far enough, .and that the court should have instructed the jury that the presumption of innocence continued until the jury reached a verdict. The instruction given was as broad in that respect as the ■■one requested. The slight difference in the phraseology of the fwo instructions upon the presumption of innocence until the contrary is shown or proven beyond a reasonable doubt did not niter the meaning, which was the same in each. If any difference existed, it was in favor of the defendant in the last instruction given.
“The law does not require demonstration, however; that is, it •does not require such a degree of proof as, excluding the possibility of error, produces absolute certainty, because such proof .is rarely possible. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind. This is called satisfactory evidence, and it is the only evidence which will justify a verdict of guilty.”
“If it should appear to you from all the evidence in this case beyond a reasonable doubt that the defendant has committed a crime which is included in the crime charged in the indictment, and there should still remain in your minds a reasonable doubt as to which degree he is guilty of, then, in that case, the defendant is entitled to the reasonable doubt as to the higher crime or to the highest degree, and you can only return a verdict of guilty of the degree of the crime so included in the indictment, as to which there is no reasonable doubt.”
The instruction refused, being substantially covered by the general instructions of the court, there was no error in refusing it.
“If any person shall, in the commission of an unlawful act, or a lawful act without due caution or circumspection, involuntarily kill another, such person shall be deemed guilty of manslaughter^: B. & C. Comp. § 1746.
In Blashfield on Instructions to Juries, page 440, it is stated: “Error cannot be predicated upon the omission or refusal of a trial judge to instruct as to the lesser grades of the offense charged, where there is no evidence to reduce the offense to a lesser grade.” Mr. Justice Moore has clearly and ably discussed this rule in State v. Magers, 35 Or. 520 (57 Pac. 197), and briefly and accurately summarized it on page 534 (page 201 of 57 Pae.) of the opinion in that case, as follows: “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 man
Applying this rule to the case at bar, there was no error in refusing to instruct upon the involuntary -killing, for there is no evidence in the case upon which to base such an instruction. There is no question as to how the homicide was committed, or the circumstances under which it was done, and the theory of the defense, as shown by the record and brief and arguments on, appeal, that the defendant was so dazed by the blow given him on the head by his son when the latter struck him with the rifle, and so angered by his quarrel with his wife, that he killed her in a sudden heat of passion Gaused by a provocation sufficient to-make the passion irresistible, does not tend in any way to reduce the offense to involuntary killing. If, as contended by counsel for defendant, the blow on defendant’s head dazed and blinded him, and while so -dazed and blinded;, without knowing exactly what he did or why he did it, he secured a loaded revolver from a trunk in an adjoining room and pursued his son Robert with-the.pistol, and while so dazed and excited, in hot blood, upon the occasion, killed his wife, not realizing what he had done until the next day, such circumstances would not warrant the instruction refused upon involuntary killing. There is no element of involuntary killing, as defined in the instruction refused, in the evidence in this case, nor any circumstances from which it might be inferred. The evidence of the homicide and the manner in which it was done is not circumstantial, but the positive, direct testimony of the witnesses who saw it committed. There is nothing in the ease that could possibly warrant any other instructions upon the grades of the offense than those given, of murder in the first and second degrees, and voluntary manslaughter:
“Deliberation and premeditation must be evidenced by some proof that the design was formed and matured in cool blood and not hastily upon the occasion. Unless the design to take life be formed and matured in cool blood and not hastily upon the occasion, there is not murder in the first degree. There is no definite space of time, however, fixed by law which must elapse between the formation of the intention to kill and the act of killing to constitute murder in the first degree. The question of time for the "blood to cool is one of the facts for the jury to determine from the evidence adduced on the trial, which should satisfy the jury beyond a reasonable doubt.”
This ease is not like the.case of State v. Morey, 25 Or. 241 (35 Pac. 655, 36 Pac. 573), where there was no evidence of any passion or excitement prior to the act of killing, and in which case the court said: “It cannot be said, as a matter of law, that any given space of time would afford an opportunity to a given person for deliberation and premeditation, if there is any question as to whether his mind was so disqualified or disturbed. In such case the question as to whether there had been sufficient cooling time, and whether the mind was in a condition to deliberate and premeditate, would be for the jury to determine and not the court.” There being some evidence in the case at bar that the mind of the defendant had been disturbed shortly prior to the killing, the court very properly left the matter of time for deliberation and premeditation to be determined by the jury, in accordance with the rule declared in State v. Morey, 25 Or. 241, 246 (35 Pac. 655, 36 Pac. 573).
It is insisted that the fifteenth and seventeenth instructions refused were necessary to explain Section 1754, B. & C. Comp.,
“The killing, however, which constitutes manslaughter must be either voluntarily committed in the commission of an unlawful act, or a lawful act without due action (caution?) ox circumspection.”
It then proceeded to define a killing upon a* sudden heat of passion, and to give the meaning the latter term. As the very first sentence of this instruction was inapplicable to the facts in this case as heretofore shown, the refusal of the entire instruction was proper: I Blashfield, Inst, to Juries, § 338.
We have carefully ^considered the exceptions taken to the instructions given by the court, and all other assignments of error in this case, and, considering the instructions as a whole, we think they are substantially correct, and could not have misled the jury to the prejudice of the defendant, and that no substantial error was committed in the trial of the case. Fully realizing the serious consequences to the defendant of upholding the judgment against him, we are, nevertheless, compelled to declare that he had a full, fair and impartial trial under the laws of this state, in which his rights were fully protected by able counsel, and, • there being no error, the judgment of the lower court is affirmed. Affirmed.