96 P. 1067 | Or. | 1908
Opinion by
The first assignment of error relied upon to reverse the judgment, is the admission of the testimony of two physicians as to the number and character of the gunshot wounds suffered by Van Dran as the result of defendant’s assault. The objection was that the extent of the injury done and the manner in which it was done became incompetent and immaterial, upon defendant having admitted the shooting and pleaded justification. The argument is that, if the defendant was warranted in making the assault and attempting to take the life of his adversary, the particulars relating to the character of the wounds, their extent, and the point at which the missiles entered or departed from the body have nothing to do with the question of defendant’s guilt, and could serve no other purpose than to prejudice the jury against defendant. But a plea of not guilty was entered to the charge, and that controverts, and is a denial of, every material allegation in the indictment. Section 1370, B. & C. Comp.
Thus the fact that defendant, in a prosecution for homicide, admits the killing, does not render inadmissible the weapon which he used (State v. Jones, 89 Iowa, 182: 56 N. W. 427), or the clothing worn by the deceased (State v. Winter, 72 Iowa, 627: 34 N. W. 475) ; and the fact that defendant in a prosecution for forgery admits that certain notes are forged, and that he passed them, does not render the notes inadmissible (Commonwealth v. Miller, 3 Cush. [Mass.] 243). The evidence offered was material and relevant. State v. Remington, 50 Or. 99 (91 Pac. 473).
Defendant offered to show that Van Dran’s moral character was bad; that he had interfered with and disturbed the family relations of others, of all of which matters defendant had been informed; that Van Dran had interfered with defendant’s domestic relations, resulting in an estrangement and the latter’s separation from his wife; that he had been guilty of certain acts toward defendant’s wife, and had made certain declarations to her, from which the inference might fairly be drawn that he was attempting to seduce her; and that, with such knowledge, defendant, at the time of making the assault, was acting under the belief that his wife, if found in Van Dran’s presence or in his place of business, was in imminent danger, and that in fact Van Dran was intending to commit the crime of adultery with her that night, to prevent which he made the assault—all of which, on objection by the state, was rejected, and on this account error is assigned.
It is not claimed, nor was there any evidence tending to show, that Van Dran had offered or attempted any personal violence to the defendant at the time of the assault, or to the person of defendant’s wife, who it is admitted was not present; nor had he made any threats that he would do any violence to either of them. But he attempts to justify the assault, by the claim that it was necessary to prevent Van Dran from committing adultery with defendant’s wife that night, which he believed the former was seeking to accomplish by artifice and the active co-operation of the wife.
Finding no error, the judgment must be affirmed.
Affirmed.