209 P. 349 | Or. | 1922
The defendant and John Tillman were soldiers stationed at Camp Lewis. They left camp without leave, arriving in Portland at about 3:10 p. m. on November 17, 1920. Each was in full uniform; each wore a campaign hat; and each had with him an army automatic pistol. After arriving in Portland they sold one of the pistols. Afterward at about 7 p. m. near Nineteenth and Everett Streets they held up and robbed Thomas E. Fanning. They committed a second robbery when they held up Ole and John Indergard at about 7:30 p. m. on First Street between Stark and Washington Streets. At about 9:45 p. m. they held up and robbed a man near the intersection of Ninth and Flanders Streets. The Indergard holdup was reported to the police station at 7:40 p. m.; the Fanning holdup at about 8 p. E; and the third robbery at about 9:45 p. m. A description of the men who had committed the robberies was given to those in charge of the police station. The detective department and “all the officers on the beats,” were notified and given the description of the soldiers who had committed the robberies.
A posse of station men, including Jerome Palmer, was organized at about 10 p. m. and they got in the patrol wagon and went to Ninth and Flanders and there E. Thorpe, a policeman, joined them; and they then proceeded to Sixteenth and Pettygrove Streets
Walters proceeded about fourteen feet after he and Tillman were accosted by Thorpe, and Walters was only five or six feet from Palmer when he shot Palmer. ' Walters ran east on G-lisan' Street and Thorpe “stepped out in the street and took two more shots at him and he turned around and answered with another shot,” which struck Thorpe but did not seriously hurt him. The defendant ran to Fifth Street and turned north on Fifth, followed by Thorpe and officers who had left the patrol wagon, and by officers on patrol duty in that section. A number of shots were fired at Walters while in flight, and there is evidence that he fired at least two shots at his pursuers. The defendant sought refuge in the railroad yards near by and was soon captured there. Officers Thorpe and Palmer were in uniform and each was wearing a policeman’s helmet when the defendant shot Palmer. Sixth Street is well lighted, and the defendant knew that Thorpe and Palmer were policemen.
Ole Indergard was permitted, over the objection of the defendant, to tell the jury that he and his brother John had been held up and robbed by the defendant and Tillman. The state called John Tillman as a witness and he was permitted to testify, over the objection of the defendant, about the three robberies committed by the witness and the defendant prior to the homicide. The defendant insists that there was no connection between the robberies and the homicide, and that therefore it was prejudicial error under the doctrine of State v. Start, 65 Or. 178.
The state proved by direct testimony that the defendant shot and killed Palmer. Indeed the defendant, as a witness for himself, admitted that he fired the shot. Palmer was a- policeman. Sixth Street was well lighted; the killing occurred near a lamp-post containing a cluster of lights; Palmer wore the uniform of a policeman, including a helmet; one witness, John M. Reek, when a block away saw Palmer fall and “could tell it was an officer”; another witness, 0. Barber, was at the intersection crossing of Fourth and Glisan Streets, two blocks away from the scene of the homicide, and upon hearing the shot “looked up there” and “saw an officer fall after the first shot” and “could see it was an officer by his cape and helmet.” Tillman testified that after the third holdup he told the defendant “that the police was going to get us” and that the defendant “said he did not care, they were not going to take him.” Tillman also testified that when he first saw Palmer and Thorpe “they were across the street” and were proceeding to the corner of Sixth and Glisan and that he and the defendant were at that moment going toward the same corner and were about thirty feet from it, and that upon seeing the officers he said to the defendant “there comes the police now.” On direct examination the defendant testified:
The defendant as a witness for himself also testified on direct examination that he did not know what was his object in shooting and that
“I did not realize why I did shoot; I was drinking —under the influence of liquor; I was not drunk, but I was under the influence of liquor. I don’t really know why I did shoot.”
Evidence showing the motive for the commission of a crime is competent; and, although as stated by Mr. Justice Burnett in State v. Humphrey, 63 Or. 540, 550 (128 Pac. 824), “the prosecution is not bound to prove a motive for the criminal act charged in the indictment,” it is permitted to do so. Ordinarily a wide latitude is allowed for proving the motive: State v. Ingram, 23 Or. 434 (31 Pac. 1049); 16 C. J. 547, 590; 13 R. C. L. 910. The defendant was being tried upon a charge of murder in the first degree, and it was peculiarly appropriate to ascertain why he fired the fatal shot and to learn his intent, for the indictment embraced three punishable degrees of homicide: State v. Reed, 53 Kan. 767 (37 Pac. 174, 42 Am. St. Rep. 322). See also State v. Martin, 47 Or. 282, 285 (83 Pac. 849, 8 Ann. Cas. 769). Obviously, he fired the shot in order to prevent arrest by officers of the law. The crime for which the defendant was being tried arose out of the robberies. The killing would not have occurred if the robberies had not been committed. The robberies furnished the motive for the killing. Under all the authorities evidence showing the commission of the robberies was competent: State v. Hembree, 54 Or. 463, 474 (103
Tillman testified as a witness for the prosecution, and the defendant complains because the trial judge did not instruct the jury, in the language of Section 868, subdivision 4, Or. L.:
“That the testimony of an accomplice ought to be viewed with distrust.”
Although the defendant neither requested such instruction nor excepted because it was not given, we shall assume, without deciding, that it was error to omit to give it if Tillman was an accomplice. If Tillman was not an accomplice then of course the defendant was not injured. Although there is no universally accepted definition of the term “accomplice,” it is said in this jurisdiction that the “term includes all the particeps criminis whether considered in strict legal propriety as principals or accessories”: State v. Roberts, 15 Or. 187, 197 (13 Pac. 896); State v Odell, 8 Or. 31, 33; State v. Edlund, 81 Or. 614, 617 (160 Pac. 534).
As a general rule the test as to whether a witness is an accomplice is whether he himself could be indicted and punished for the crime for which the accused is being tried. If he could be so tried and
Tillman was an accomplice in the commission of the three robberies; but the record does not disclose a word of evidence having the slightest tendency to show that he participated in or was connected with the homicide. Tillman was not an accomplice in the killing of Palmer, and, therefore, the trial judge properly omitted to instruct the jury about viewing the testimony of an accomplice with distrust.
The following is the remaining assignment of error:
“The court erred in instructing the jury as follows : ‘An intent to murder is conclusively presumed from the-deliberate use of a deadly weapon causing death within a year.’ ”
The defendant did not in any form object or except to the giving of this instruction, and consequently in this condition of the record it would be sufficient to hold that the question sought to be raised is not properly here for decision. However, the giving of the instruction did not injure the defendant.
The instruction must be read in connection with the remainder of the charge: State v. Megorden, 49 Or. 259, 269 (88 Pac. 306, 14 Ann. Cas. 130). After giving the instruction to which objection is made, the court defined a deadly weapon and then gave the following instruction:
“The deliberate use of a deadly weapon necessary to constitute a conclusive presumption of indent to murder' is the use of such weapon without cause or. provocation, real or imaginary; but this intent to
The charge to the jury included the definitions of the three degrees of unlawful homicide and a thorough explanation of their respective constituent elements. The jury were likewise informed that the burden of proof was upon the prosecution and that before the defendant could be adjudged
“guilty of the crime charged or of any of the lesser degrees included therein it is necessary for the state to prove the defendant guilty beyond a reasonable doubt.”
The challenged instruction, when read in connection with the remainder of the charge, was in entire accord with the holding in State v. Gibson, 43 Or. 184 (73 Pac. 333), and with other precedents dealing with the same subject: State v. Carver, 22 Or. 602 (30 Pac. 315); State v. Bartmess, 33 Or. 110, 130 (54 Pac. 167); State v. Gray, 46 Or. 24, 31 (79 Pac. 53).