190 P. 580 | Or. | 1920
The errors relied upon, upon this appeal, refer principally to the admission of evidence on behalf of the state, as to the intelligence and capacity of these children, and their ability to talk and give a statement of the occurrence, and the statements of the defendant as to his reason for not questioning them, and that they were unable to talk, and the denying of defendant’s motion for a directed verdict and to set aside the judgment for lack of evidence.
It was a reasonable contention on the part of the prosecution, which might weigh more or less strongly with the jury, that an innocent man, coming home after a short absence, and finding his wife shot to death in the yard, and the children of that age immediately about, would immediately have commenced to solicitously inquire from them as to the way in which the tragedy had occurred, and to address himself as best he could to obtain from their childish intellect and childish minds some clue to the cause and manner of the homicide.
If he did not do so — if he did not make any inquiry from them whatever, or seek in any way to obtain any information — the jury might consider it unusual and unnatural conduct, which would weigh very heavily, against the truth of his story. If, in addition to this, he gave false statements as to the capacity and intelligence of the children, and offered this as an explanation for his unnatural and unusual conduct, it might add strongly to the weight of his actual failure to inquire.
It would seem only natural that an innocent man,, if confronted with a situation of this kind, should not only inquire himself of his children in every pos
This evidence was not admissible upon that ground, nor for the purpose of impeaching the defendant as a witness. It was admissible, however, under another elementary principle, that the declarations of a party, either in a criminal or civil action, are admissible against him as declarations against interest. This principle is too elementary and too well established to be subject to any question. It was so at common law. In Grreenleaf on Evidence (16 ed.), Volume 1, Section 171, it is said:
“The general doctrine is that the declarations of a party to the record, or of one identified in interest with him, are, as against such party, admissible in evidence.”
And again in Section 195:
“In general, a party’s conduct, so far as it indicates his own belief in the weakness of his cause, may be used against him as an admission, subject, of course, to any explanations he may be able to make removing that significance from his conduct. In particular, ‘falsehood is a badge of fraud, and a case which is sought to be supported by means of deception may prima facie, until the contrary be shown, be taken to be a bad and dishonest case’; and this applies equally to civil and to criminal cases.”
And Section 727, L. O. L., provides, that evidence may be given on the trial of “the declaration, act, or omission of a party as evidence against such party.”
In the case of State v. Smith, 43 Or. 109 (71 Pac. 973), cited by appellant, the declarations of the defendant were offered by the defendant himself, in his
There was, therefore, no error in this case'in admitting the declarations of the defendant that he had made no inquiry of the children as to the circumstances of his wife’s killing, and his explanation of the reason why he did not, and of the falsity of that explanation, if it was false. If the four year old boy was an ordinarily — or more than ordinarily — intelligent boy, and was able to tell a story in relation to anything that had occurred, as was testified by the witnesses, and if he was able to tell these comparative strangers a story of how the killing occurred, it would surely be true that the defendant himself, who was their father, could also have talked with him and elicited some story as to the death of their mother, and how it came about, and if he made no such inquiry, and did not attempt to do so, as he told several witnesses, according to their testimony, and gave a false reason for not doing so, these were circumstances which the jury had a right to consider.
Under such conditions the district attorney is sometimes placed in a more or less embarrassing position. Here, having proved the fact necessary to his case, that the child was able to and would talk about what had occurred, and was able to and did talk about the occurrence, and tell a story as to how his mother’s death occurred, the jury would naturally expect to hear what that story was, and would, if the state did not offer to prove the same, be likely to conclude that there was something in the statement that would be against the theory of the state, and that the state had therefore prevented the same from being disclosed. The children themselves had been removed from the state and were out of reach of a subpoena. Probably the district attorney made the order of proof to clear his skirts of any apparent suppression of evidence, leaving it to the defendant to object to the testimony, if he desired to have it excluded.
Individually, the writer of this opinion can see no impropriety upon the part of the district attorney in offering to present this proof, and giving the at
It seems perfectly plain that there were only five possible theories upon which her death could be explained: (1) Suicide; (2) accident; (3) accidental killing by the four year old child; (4) an attack and killing by some outside person during the interval between the time when the defendant claims to have gone for the cows and his return; (5) killing by the defendant, and the resulting untruthfulness of his story in relation thereto. The jury may have eliminated all these theories, except the last, as unreasonable and improbable.
They may very well have considered the suicide theory as unreasonable, and even impossible. In the first place, there was no evidence to show that the deceased was in such a state of health, or in such mental condition, as to be at all likely to commit such an act, and indeed the effect of defendant’s own statements was against any such' conditions. Then, too, the character of the gun and the character of the wounds and their range might have seemed to the jury to make it impossible that she could herself have fired the two shots in such a way as to make the wounds, and take the range which they did.
The theory of accident might seem to the jury just as impossible. The fact that those two wounds, one of which broke the left arm of the deceased, and the other passed through the heart, and must have been almost immediately fatal, and the fact that the gun was a lever gun, which would have to be reloaded by throwing a cartridge from the magazine to the barrel, before the second shot could be discharged, together with the points where the bullets entered and
The difficulties in sustaining the theory that the deceased reloaded the gun by the lever and fired one of these shots herself after the other one had taken effect, which would have to be done, after her left arm was broken in the one case, or after she was shot through the heart in the other, are obvious. It was just as difficult to explain the occurrence upon the theory that the four year old child fired both of these shots from some childish impulse, and was able to reload the gun between the firing of the two shots.
There were also difficulties, although perhaps not so entirely insuperable, in the way of the theory that the homicide was' committed by an outsider, in an attempt to rob or commit some vicious attack. There is no evidence that anyone had been seen in the immediate vicinity on that evening, and the evidence tended to show that search was made and no tracks were found in the soft, sandy soil immediately surrounding the premises. There was no evidence of any struggle, or that the clothes of deceased were torn in any wav. The evidence seems to have conclusively estaN-shed that the shots in question were fired with the defendant’s gun, which usually hung on nails in the middle or back portion of the house. It would have to follow, if the killing was done by an outside person, that he had in some way succeeded in getting possession of defendant’s own gun, and then, after killing Mrs. Zullig with it, threw it down partially loaded and made his escape.
Whether any of these theories were reasonable and probable was for the jury. If these theories were
Then there were a number of affirmative circumstances which might bear more or less against the defendant — his delay in going for help after he reached home; his waiting to remove the cartridges from the gun and to wash and clean it; his hesitation and reluctance in announcing the death of his wife, and in explaining what he claimed to know of it when he reached Anderson’s that night; his disinclination and refusal to permit any of the neighbors to stay at the house that night, when they got there about midnight; his wiping and cleaning up the blood about the premises before anyone reached there to inspect it; his failure to show any interest in tracing the cause of the death at the coroner’s inquest and afterward; his failure to inquire of the boy, or to make any effort to find out anything about it; his claim that the boy could not talk sufficiently to tell a connected story, which the jury may have believed false; the burning up of his wife’s clothing which she wore at the time she was killed; the sending the children away immediately before the trial; and many other circumstances were before the jury for its consideration. It is only fair to say that there were also circumstances and features in the conduct of the defendant which seemed in his favor, but all these circumstances for and against were for the jury, and were submitted and no doubt weighed by it.
We think the judgment of the court below must be affirmed. Affirmed. Rehearing Denied.