278 P. 568 (Or. 1929), State v. Newberg
| Judge | BEAN, McBRIDE, and RAND, JJ., concur. |
| Parties | STATE v. NEWBERG ET AL. [*] |
| Citation | 278 P. 568,129 Or. 564 |
| Docket Number | . |
| Court | Oregon Supreme Court |
| Date | 25 June 1929 |
Page 568
Department 1.
Appeal from Circuit Court, Wallowa County; J. W. Knowles, Judge.
Harry Newberg was convicted of manslaughter, and he appeals. Affirmed.
The appellant and his codefendant, Fred N. Black, were indicted by the grand jury of the county of Wallowa for the crime of second degree murder. The indictment charged that the two defendants, on the 25th day of September, 1928, in that county, without due caution and circumspection, involuntarily killed one Leonard Olsen. Appellant's plea of not guilty was followed by a motion for a change of venue, upon the ground that the circumstances attendant upon the shooting of the deceased, false rumors in regard thereto, and appellant's nonresidence in Wallowa county made it impossible for the latter to obtain a fair trial in that county. The motion was resisted by the state, and was denied by the court. Upon the trial of the appellant it developed that the deceased was shot to death at approximately 9:20 p. m. September 25, 1928, by a bullet fired by one of the two defendants, when they mistook the horse upon which he was riding for a deer. At the close of all the evidence the court withdrew from the jury's consideration the charge of second degree murder, and submitted only the lesser charge of manslaughter. From a verdict of guilty a judgment to that effect was entered, from which the appellant has appealed. He presents for our consideration five assignments of error, one of which is based upon the denial of the motion for a change of venue. The second is premised upon an objection to a portion of the argument of the special prosecutor; a third arises out of the refusal of the court to give three instructions requested by the defendant; a fourth contends that error was committed when the state was permitted to offer some evidence in rebuttal, which the defendant contends constituted part of its case in chief; and the fifth assignment predicates error upon the denial of a motion for a directed verdict.
The first, second, and fourth assignments of error seek our review of rulings made [129 Or. 567] by the trial judge upon matters which the law intrusts largely to his sound discretion. The motion for a change of venue was accompanied by nine affidavits; it was resisted by the state, which filed a like number. It is difficult for us to determine from the brief descriptions, which each affiant made of himself, which of the 18 men was in the superior position to determine whether a fair jury was obtainable, and whether any sentiment, hostile to the appellant, would reach it after being impaneled and exert an effect. We notice, however, that one of the affiants, who subscribed to the affidavit for the defendant, had resided in Wallowa county only two months; another was a nonresident, and a third had resided there for three years. Among those who signed affidavits for the state was the county judge and two members of the board of county commissioners. Each of the state's nine affidavits was subscribed by individuals who had resided in the county for 15 to 47 years. All of these nine averred there were no circumstances present which would operate to the disadvantage of a fair trial of the appellant, and that there were portions of the county where the residents did not know the deceased, and where no feeling upon the homicide was entertained. No affidavit took issue with the two latter averments.
The motion was denied by an able circuit court judge, of many years' experience, in whose district there were only two counties, one of which was Wallowa. The order denying the motion directed that no juror should be drawn from the towns of Wallowa or Lostine, which were the two communities that the defendant claimed were particularly affected by the rumors. Following the entry of the order we find nothing in the record which indicates whether any veniremen were encountered who were familiar with the alleged rumors, or affected[129 Or. 568] by any feeling upon the subject-matter of the indictment. We feel justified in assuming that, if any such difficulty had been encountered, some account of it would have been made a part of the record. A lack of difficulty in obtaining an unbiased jury is persuasive that the accused did not suffer when the motion for a change of venue was denied. The principles of law that are applicable to the exercise of the trial court's discretion in matters of this kind have been many times enunciated by this court. We find it unnecessary to discuss these principles once more. Our last expression upon this subject is in Bramwell v. Rowland, 123 Or. 33, 261 P. 57. We find no error in the court's ruling.
We have carefully reviewed the excerpt from the prosecutor's argument to the jury to which the defendant objected. The court's ruling upon the defendant's objection was pungent and strikingly in favor of the defendant. We find it impossible to believe that the defendant's case was prejudiced thereby; in fact, his contention is not based so much upon what the prosecutor said preceding the ruling as the remarks of the latter that immediately followed. However, no objection was made to the latter, and after a careful consideration of it we find no occasion for interference, especially in view of the fact that the trial judge apparently felt that the argument was entirely fair.
The fourth assignment of error is also based upon a ruling largely in the discretion
Page 570
of the trial judge. It is our opinion that the evidence received as rebuttal testimony was such. The admission of rebuttal testimony rests largely within the discretion of the trial court, and this generally includes the determination of whether the testimony is of that nature. 16 C.J. p. 868; State v. Merlo, 92 Or. 678, 173 P. 317, 182 P. 153; State v. Ayer, 122 Or. 537, 259 P. 427; [129 Or. 569] State v. Ragan, 123 Or. 521, 262 P. 954.
The court instructed the jury:
"I instruct you that, if you find from the evidence in this case beyond a reasonable doubt that the defendant, Newberg, at or about the time alleged in the indictment in this county and state, fired his rifle at an object which he thought to be a deer, he failed to use due caution and circumspection and involuntarily killed Leonard Olsen, then the defendant would be guilty of involuntary manslaughter. Upon the other hand, if the state has failed to establish beyond a reasonable doubt, the guilt of the defendant of the crime of involuntary manslaughter, you should find him not guilty. * * * And I further instruct you that it is your duty to consider this case alone, without any reference to the indictment against Fred M. Black. In order to convict the defendant Harry Newberg of the charge made against him in this indictment, there must be evidence against him which convinces you beyond a reasonable doubt of his guilt. While these defendants are indicted together, and are charged with a joint offense, it is necessary that evidence should be given against each one of them, and it is within the power of the jury, and it is the duty of the jury, to consider the case of each defendant separately, and if the evidence is not sufficient to convict this defendant, Harry Newberg, under the instructions of the court, no matter whether sufficient to convict the other defendant or not, you should consider the case of Harry Newberg alone, and if the state has not...
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