State v. Hawkins , 18 Or. 476 ( 1890 )

Strahan, J.

The first point made by the appellant’s counsel is, that the court below erred in overruling the motion for the continuance of the cause for the term. The killing took place on the first day of May, 1889; on the thirteenth day of June following the defendant was indicted by the grand jury, and on the seventeenth day of June, 1889, he filed his motion for a postponement of the trial of the cause until the next regular term of the court, for the reason one M. B. Goldstien, a witness whose evidence was alleged to be material, could not then be procured at that term of court. The court declined to postpone the cause for the term, but did postpone it until the fifteenth day of July, 1889, to which time the court adjourned, for the purposes of the trial. The residence of the absent witness was Portland, but he was • the manager of an itinerant theatrical troupe, which was performing in Washington Territory at the time.

The affidavit recites: “I am informed and believe that said witness will swear that said deceased was armed with a pistol, and that he heard the report of the same and saw the flash of the powder therefrom, when the deceased fired the same at me, which occurred at the time of my effort to defend myself from said attack of said deceased; and that the said witness testified before the coroner’s jury as the State’s witness. He was also subpenaed by the State, attended the preliminary examination, but gave ho testimony at that time; he was subpenaed as a witness before the grand jury at the present term of this court, and gave testimony concerning said difficulty,” and that no effort has been made by the State’s counsel to detain said Goldstein as a .witness in said cause. This affidavit is silent as to whether the same facts could not be proven by other witnesses; but on the fifteenth day of July, 1889, the application was renewed and an additional affidavit was submitted by oue of tlie defendant’s counsel, in which he says that he knows of no other witness by whom the important facts stated in the affidavit of the defendant heretofore filed can be so clearly and satisfactorily established and proven. The killing occurred on the street in the city of Salem, and was witnessed by a number of people, and the affidavit fails to disclose that Goldstein possessed any different means of knowledge from all others who witnessed the unfortunate encounter. The affidavit fails to disclose how or when the affiant acquired a knowledge of what Goldstein would swear to, nor does it appear why he was not promptly subpenasd before he left the city, after testifying before the grand jury, and finally the inference is made very strong by Mr. Ford’s affidavit that the same facts could be proven by other witnesses, though not so clearly and satisfactorily. It must be observed that if the deceased was armed with a pistol at the time of the killing, and made an attack on the defendant with it, and any witness knew the fact, his testimony on that subject would be neither dubious or uncertain. It would be a fact about which there could be no doubt.

Looking at the entire tenor of those affidavits, we are unable to say the trial court erred in overruling the appellant’s application to postpone the trial. In such cases the trial courts exercise a large discretion. Ordinarily that court can determine better than we can whether or not the ends of justice will be promoted by an adjournment; still, having a supervisory po-wer over the proceedings of the circuit court, if we could see it had abused its discretion to the injury of the appellant, we would not hesitate to reverse. But in this case the fact does not appear. The appellant's application was too weak and uncertain to require the circuit court to allow a continuance. Neither are the allusions in the affidavits to what the newspapers contained sufficient to have required the court give a continuance. If the newspaper articles had been of so serious and inflammatory a character as to actually cause so deep a prejudice in the public mind as to preclude a fair and impartial trial in the county, the proper motion was not for a postponement, but for a change of the place of trial. Hill’s Code, § 1222.

It appears from the record that during the progress of the trial the State introduced testimony tending to show that a person was seen in the vicinity of the house where the deceased was stopping on the occasion of his visit to Salem, on the evening of the homicide, and during the trial of said cause the defendant offered himself as a witness in his own behalf, and made no allusion to this evidence so introduced by the State. During the closing argument made on behalf of the State by Hon. Richard Williams, he commented on this circumstance, saying that he did not know and did not ask the jury to believe that the person seen in the vicinity of where the deceased was stopping was the defendant; but that the defendant had been on the witness stand, had an opportunity to deny the same, but didn’t do so. No objection was made to this remark at the time of its utterance, but after the argument was closed, the defendant’s counsel asked the court to instruct the jury as follows: “The statute of this State, in allowing a party to testify in his own behalf in a criminal cause, expressly provides that his failure to do so shall not create any presumption against him, and I caution you against the comments of the counsel for the State, as they had no right to speak of the failure of the defendant to testify on any point or circumstance of the case.” This instruction was refused, apparently for the reason that it was not submitted to the court within the time prescribed by a rule of court. This rule requires all instructions desired by counsel to be submitted to the court before the last argument commences. Conceding without deciding ■that when a defendant in a criminal case offers himself as a witness in his own behalf, is silent as to some fact appearing in the case against him, that no unfavorable inferences can be drawn against him on account of such silence, still I think in this case counsel for appellant did not raise the question at the proper time or in the proper manner. If the counsel for State transcended the proper bounds of discussion it was the province of defendant’s counsel to take an objection at the very time of the utterance of the objectionable words, and to take the ruling of the court at the time upon their propriety. Suppose that objections had been promptly made to the observations of counsel by the State, and he had immediately desisted, there would have been n<? available error. Worley v. Moore, 97 Ind. 15. Or, if objection had been made, and the court had ruled that counsel was not in order, the defendant would have had no cause of exception. But it is claimed that in a spirit of abundant caution the court ought to have given the instruction asked by the defendant. In any view of the subject I do not think the remark of counsel was of such a character as to- call for special instructions from the court. 'The subject was barely alluded to by counrel, and where no objection was made at the time, and where it is apparent such remark could in no manner have misled or influenced the jury, I think it would be going too far to reverse the judgment on account of or by reason of such remark. This view of the subject renders it unnecessary to consider or determine the applicability or effect of the rule of court referred to in the record. It may be observed generally, however, that it is within the discretion of the trial court to promulgate and enforce all such rules for tho speedy and convenient dispatch of business as are not inconsistent with law.

The court in effect gave the jury the following instruction, to which an exception was duly taken: “That if the jury found from the evidence, beyond a reasonable doubt, that the prisoner was then seeking to meet Ogle to provoke, a quarrel with him, or with intent of having an affray with him, and a difficulty did ensue, he cannot without some proof of a change of conduct or action, excuse the killing of Ogle upon the ground that he believed that Ogle was attempting to draw a weapon with which to assault the defendant.” Counsel for the defendant now insist that the giving of this instruction was error, but he has cited no authority to support his contention. I do not think, under the facts assumed in this instruction, that the doctrine of apparent danger from the deceased can be invoked by the prisoner. He was armed, as the evidence fully shows, was seeking the deceased for the purpose of provoking a quarrel with deceased, or with the intent of having an affray with him. It must be supposed that the deceased was able to judge of such hostile purpose. To say under those circumstances that the, defendant might act upon alleged appearances and draw his pistol and Shoot the deceased would be equivalent to allowing any desperado to go and seek his victim, and as soon as appearances were sufficiently favorable, to draw his gun and murder him. This would not be self-defense, but murder. When a man is armed and seeks another for an affray or an altercation, the law will not permit him to provoke and urge on the difficulty to a point where there is an appearance of an attempt to use weapons, and then justify the aggressor in taking of life simply on the ground of apparent danger. In such case he is the aggressor, and the active cause of the danger which menaces him, and he must abide by that condition of things which his own lawless conduct has produced.

The court further charged the jury: * I need nob admonish this intelligent jury that it is important to the ends of justice, and to secure public respect for our judicial tribunals, that juries agree upon verdicts in cases submitted to them, so that causes may be determined and new trials and delays of justice avoided.” An instruction in relation of the duty of the jury to agree upon a verdict couched in stronger and more imperative language than the one now complain'ed of, was before this court in State v. Saunders, 14 Or. 300, and it was held not to be erroneous. Such instructions announce no principles of law further than to impress upon the minds of jurors the duty of considering the case in all of its bearings fairly and without prejudice, and to endeavor to reach a iust conclusion.

In State v. Saunders, supra, the court, after remarking the effect of disagreements of juries at common law, and that under that, system juries were kept together until they did agree, and how such rule had been mitigated in the United States, said the jury would have to remain together and could not separate until they agreed upon a verdict and brought it into court. This court, in disposing of an exception to this charge, said; “It was proper for ihe court to inform the jury respecting their duty; advise them how they should consider the matter before them, and the course to pursue in reaching a conclusion. Nor should the concluding remark in the charge be construed as any determination to keep them together until they had agreed, or an indication that the case in the mind of the court was so plain that they would not be justified in fa.iling to agree.” No intelligent or conscientious juror could be misled by such an admonition. He understands the motive of the court not to be to control or coerce his judg ment contrary to his conscientious convictions, or to induce him to yield to the judgment of his fellows without the fullest comparison of all of the facts. It is impossible to see in what manner such advice to the jury could have injured the defendant. The claim that its tendency was to make weak jurors yield their judgments to the majority or to those having stronger wills, cannot affect the question if it were true, which is not conceded for the reason that those considerations would be just as likely to operate favorably as unfavorably to the prisoner. After the most careful consideration of this case which I have been able to give it, I am unable to see any error in this record prejudicial to the appellant. So far as the record disclosed the proceedings of the court below, every step in the progress of the trial seems to have been carefully taken with a view of securing, to the fullest extent, a fair and impartial trial.

Having reached the conclusion that there is no error in the record, we have no discretion, but must affirm the judgment.

[Filed March 10, 1890.]