State v. Bartmess

• Decision Date: 13 August 1898
• Parties: STATE v. BARTMESS.
• Court: Oregon Supreme Court

54 P. 167

33 Or. 110

STATE v. BARTMESS.

Supreme Court of Oregon

August 13, 1898

Appeal from circuit court, Union county; Robert Eakin, Judge.

George W. Bartmess was indicted for the crime of murder in the first degree, alleged to have been committed in the killing of one Henry Sidal, and, having been tried therefor, was convicted of manslaughter, and sentenced to imprisonment in the penitentiary for a term of 10 years. From this judgment he appeals, assigning as error the action of the trial court in admitting and rejecting testimony, and in giving and refusing certain instructions. Affirmed.

J.F. Baker and T.H. Crawford, for appellant.

H.F Courtney, Dist. Atty., and J.A. Fee, for the State.

MOORE J.

It is contended by defendant's counsel that the court erred in permitting the state to cross-examine its own witness, and attempt to impeach him upon an immaterial matter. To render the exception intelligible, it is deemed expedient to detail the circumstances which led up to the homicide: The testimony tends to show that, defendant having leased to deceased and one Henry Ruhnstroth a tract of land for farming purposes, a controversy arose between him and them as to the right of possession of a garden; that on April 25, 1897, Sidal drove to the garden with a plow in his wagon and attempted to pass through a gate which Bartmess was trying to hold in position, so as to prevent him from entering and plowing the garden, but Sidal pushed the obstruction down, took the plow from the wagon, and threw it on the gate over which he stepped, and pursued Bartmess a short distance towards the latter's house, about 100 yards off, to which he fled through an opening in the fence. Sidal thereupon hitched his team to the plow, and, commencing at an opening in the fence, near the southeast corner of the garden, plowed once around the lot. In the meantime Bartmess, having obtained a Winchester rifle at the house, returned to a gate on the east side of the garden, as Sidal was plowing the second furrow around the north end of the lot, and fired over his head. As Sidal reached the southeast corner of the garden, completing the second furrow, he was shot by Bartmess, the bullet entering the left side at a point above the hip, passing to the right and a little downward, severing the left common iliac artery, and lodging in the fifth lumbar vertebrae, from the effect of which he died in a very few minutes. The state insists that he was instantly killed in his tracks as he followed the plow, while Bartmess says he was shot as he was approaching him in a threatening manner. Bartmess testified, in substance, that, after he fired the first shot, he passed through the garden gate, and went towards the southeast corner of the lot, towards which Sidal was plowing; that, as the latter reached the gap in the fence, he told him to drive out, and, upon his refusal, he repeated the command, whereupon Sidal threw the lines from his shoulder, passed around the horses, and came 7 or 8 feet towards him; that he twice told him to stand back, but seeing him still approaching, and fearing that his life was in danger, he, without taking aim, fired the gun at a distance of 12 or 13 feet from Sidal, who, being hit, placed his hands to his side, went back ward about 11 feet, turned around, and lay down.

1. Henry Ruhnstroth, a witness for the state, testified that, when Sidal threw the plow on the gate, he followed Bartmess several steps towards the latter's house; and, the question being asked as to how many steps were taken, he replied: "I couldn't say exactly; maybe three or four, something like that." The attention of the witness having been called to the circumstances of time, place, and persons present, he was asked if he did not, at Bartmess' preliminary examination, in answer to the question, "How far did Sidal run after Bartmess?" say, "It was a couple of steps." Counsel for defendant objected to the question, for the reasons hereinafter stated; but the objection being overruled, and an exception allowed, the witness answered: "Yes, I may have. I said either several or a couple; I don't know exactly." The witness was also asked if Bartmess ever told him why he killed Sidal, to which he replied: "Well, when I first saw Bartmess, he said he shot him; that he wouldn't have done it, but he was afraid; he was coming towards him, and he told him he was going to kill him." The attention of the witness having again been called to the circumstances of time, place, and persons present, he was asked if he had not said that Bartmess told him a number of times that he would not have killed Sidal for plowing in the garden if it were not that he had the quarrel at the gate. The same objection having been interposed as in the preceding preliminary question, counsel for the state informed the court that the testimony of the witness had taken them by surprise; whereupon the objection was overruled, an exception allowed, and the witness answered: "I guess I remember. I said I expect he never would have killed the man if it wasn't for the quarrel." The state, over defendant's objection and exception, called W.B. Sargent, who was not named as one of the persons present in the preliminary question propounded to Ruhnstroth, and one Hindman, who both testified that Ruhnstroth used the language as claimed by the prosecution. Counsel for the state, having called Ruhnstroth to the stand as a witness, thereby represented him as not wholly unworthy of credit, for which reason they could not attack his general reputation for veracity; but, having stated to the court that they had been surprised by his unexpected testimony, it was within the sound discretion of the court to permit them to call the attention of the witness to the circumstances of time, place, and persons present, in order that they might refresh his memory; but having answered in an equivocal manner, and seemingly tried to shade his testimony to defendant's advantage, no error was committed in allowing his contradictory statements, made at another time, to be offered in evidence, not as substantive proof, but by way of explanation only. Hill's Ann.Laws Or. § 838; Langford v. Jones, 18 Or. 307, 22 P. 1064; State v. Steeves, 29 Or. 85, 43 P. 947; Campbell v. State, 23 Ala. 44; People v. Jacobs, 49 Cal. 384.

It is insisted that if Ruhnstroth testified at the preliminary examination that Sidal ran after Bartmess "a couple of steps," and at the trial that he followed him "several steps," or even "three or four steps," there is no material contradiction in the statements, and hence the court erred in admitting evidence of his former testimony. The defendant sought to excuse the homicide on the ground of self-defense, and, in support of his theory, tried to make it appear that, when he fired the fatal shot, he had reason to believe, and did believe, that deceased was about to take his life, or to inflict upon him some great bodily injury. The correct distance Sidal pursued Bartmess was therefore very material in tending to show the reasonableness of the latter's apprehension of violence, and also to illustrate the degree of the former's turbulence and vindictiveness. True, there is not much apparent difference between a "couple of steps" and a "few steps"; but the manner of stating these facts might be such as to impress the trial court that the witness intended to attach much more importance to the latter phrase than the use of the words employed would seem to indicate; and, since the tone and bearing of a witness cannot be incorporated into the bill of exceptions, the trial court was much better able to determine the question than this court can possibly be from an inspection of the record, in view of which we are not prepared to say that its discretion was abused in admitting the contradictory evidence objected to. It having been charged in the indictment that Bartmess purposely, and of deliberate and premeditated malice, killed Sidal, the defendant's plea of not guilty rendered material any evidence tending to prove that issue. If Bartmess said he would not have killed Sidal for plowing in the garden if it were not that they had the quarrel at the gate, the declaration would have been against his interest, and evidence thereof would have tended to show premeditation and deliberation. The prosecuting attorney, expecting to be able to prove this admission by Ruhnstroth, called him to the stand, and requested him to state whether Bartmess ever told him why he killed Sidal, to which he replied: "Well, when I first saw Bartmess, he says he shot him. He wouldn't have done it but he was afraid. He was coming towards him, and he told him he was going to kill him." This testimony tended to prove defendant's theory of the homicide, and, having been produced by the state, was binding upon it, unless its effect could be avoided by stating to the court that a mistake had been made in calling the witness, in proof of which his attention was called to the circumstances of time, place, and persons present, and the statement which was imputed to him, detailed with particularity, in order that his memory might be refreshed; and, upon inquiring if he made the statement, the witness replied: "I guess I remember. I said I expect he never would have killed the man if it wasn't for the quarrel." It will be observed that the witness qualifies the statement imputed to him by making it his own, instead of acknowledging that it was Bartmess' declaration; and this being so, and the alleged admission being material, the mistake made in calling the witness was excused by producing other witnesses to prove that Ruhnstroth made, in their presence, the statement upon the faith of which the state relied.

It is insisted that, Sargent's name not having...