State v. Butler

• Court: Supreme Court of Oregon
• Writing for the Court: BENNETT, J. (after stating the facts as above).
• Citation: 96 Or. 219,186 P. 55
• Parties: STATE v. BUTLER.
• Decision Date: 23 December 1919

186 P. 55

96 Or. 219

STATE
v.
BUTLER.

Supreme Court of Oregon

December 23, 1919

In Banc.

Appeal from Circuit Court, Jackson County; F. M. Calkins, Judge.

William E. Butler was convicted of manslaughter, and he appeals. Affirmed.

The defendant was indicted and charged with the crime of murder in the second degree. He was tried and convicted of the crime of manslaughter, and received an indeterminate sentence of from 1 to 15 years.

The killing itself is not denied by the defendant, and grew out of the following facts: The defendant was the owner of a tract of land near Eagle Point, in Jackson county, which was inclosed by a fence. For some time prior to the killing there had been a controversy in the neighborhood over a road running through this tract of land, and as to whether such road was a valid county road. McDonald Stewart, the individual killed by defendant, was a neighbor living with his father near one side of defendant's tract of land and apparently interested in the opening of the road in question.

The road supervisors, ostensibly under authority from the county court, had opened the fence on each side of defendant's tract of land where the road went through a number of times prior to the killing. The fence would remain open during the day, but would be put up again in the night. It appears to have been the belief of some of the people who lived in the neighborhood that the defendant was putting up the fence, and he had been threatened with prosecution for closing the alleged county road. The defendant, on the other hand, claimed that some third party was the individual who had been putting up the fence at night, and that it was done for the purpose of getting him into trouble.

On the night in question the supervisor had arranged with McDonald Stewart, the deceased, and with a Mr. Jackson, who also lived in the neighborhood, to watch the fence, for the purpose of settling the question as to who was putting it up at night. The road ran through the field from west to east, and it was arranged that the supervisor and Jackson were to watch the fence on the west side, while the deceased was to watch it on the east side. At first it was intended that another neighbor, by the name of Patrick, should share with Stewart in watching the fence on the east side, but he was not able to go and the deceased went alone.

Dutton, the road supervisor, and Jackson went up to the vicinity of the fence on the west side that evening in an automobile, accompanied by Mrs. Jackson, stopped the automobile under a tree, and waited. Dutton and Jackson walked a short distance over toward the fence. It was a moonlight night, and presently they saw a man come to the gap of the fence and commence putting it up. They went back to the automobile and drove it up to the vicinity of the gap, but by this time there was no one in sight. They got out of the automobile and started along the fence, Dutton apparently being in the lead. Presently they saw a dark object, which they took to be a man, behind the fence about 30 feet away, but so hidden by the fence that they could not identify him. Mr. Dutton continued to advance until he got within about 15 feet of the man, who then partly raised up and pointed a gun at Dutton over or through the fence. Dutton said, "For God's sake don't shoot me over this fence," and stepped back two or three steps. The person in the fence then turned the gun on Jackson, who also turned back, and they both walked to the car, got into it, and went home. This occurred between 7:25 and 8:25 o'clock--probably, from the testimony, about 8 o'clock. Dutton and Jackson could not identify the person in the fence, but in a general way they described his clothing, and they noticed in the moonlight the polished brightness of the gun barrel. The shooting occurred near the gap on the east side where McDonald Stewart was watching.

About 9 o'clock that night, or a little before, the defendant telephoned to the sheriff from his home about the shooting. He claimed that after the shooting he had walked from the place where it occurred down to his house before telephoning, so that the shooting may be assumed to have occurred somewhere in the neighborhood of 8:30, or possibly a few minutes later. The defendant claimed he was walking along down a fence in the vicinity of the gap when some one fired two shots at him. He claims that at the second shot he saw the flash from behind the tree about 100 feet away; that he then fired himself, two shots toward the point where the flash had occurred; that a third shot was then fired from the tree and hit the fence close to where he stood; that he then got down behind the fence, and, seeing a dark object, which he took to be part of a man's person, behind the tree, fired a third shot, when the man behind the tree fell and uttered some sound which indicated to the defendant that he was hit. The defendant then, as he says, got up and walked down to his home and telephoned to the sheriff.

The defendant at the time of the trial claims he did not move down the fence toward the south after the third shot was fired by the other man; but there was testimony tending to show that on the night of the killing he told Anderson, the deputy sheriff, that he had crawled down the fence until he came to a place where he could see the black spot, which he took to be part of the man's person behind the tree, before he fired the fatal shot. According to Anderson's testimony, defendant showed him on the ground about the point from which he fired this shot; and Anderson estimated the distance as about 90 feet from the gap. Two discharged shells were found the next morning at the gap in question, and it was the theory of the state that the defendant, after firing these two shots and after the last shot was fired by the deceased, crawled along down the fence out of sight of the deceased until he got far enough past the direct line of the tree so he could see the deceased behind the tree, and then deliberately took aim and fired the shot in question.

The deceased made no statement and there was no direct evidence as to what occurred at the time of the shooting, except that of the defendant himself. The state depended upon the circumstances surrounding the transaction to show that the defendant was the aggressor, or at least that he fired the last and fatal shot when it was unnecessary and could have been avoided without danger to the defendant. The defendant, on the other hand, admitted the shooting, but claims he acted entirely in apparently necessary self-defense, and only to protect himself from danger of death or great bodily harm.

From the verdict of manslaughter only it must be supposed the jury found that the killing was not entirely justified or excusable, but that there was no malice, or at least no sufficient evidence of malice, on the part of the defendant.

The deputy sheriff arrived at the place of the killing about 11 o'clock. According to the testimony, no one went there until the sheriff arrived. The doctor did not get there until about midnight. The deceased was still alive at 11 o'clock when the deputy sheriff arrived, but he died a short time afterward and before the arrival of the doctor. The bullet had passed through the thigh, shattering the thigh bone. According to the testimony of the physician, death was caused by hemorrhage.

Burnett, J., dissenting.

[96 Or. 226] O. C. Boggs, of Medford, for appellant.

Geo. M. Brown, Atty. Gen., and Geo. M. Roberts, Dist. Atty., of Medford, for the State.

BENNETT, J. (after stating the facts as above).

There are about 25 assignments of error, referring chiefly to the rulings of the court as to the introduction of evidence and the instructions given and refused.

It appears, however, from the record that the defendant, was arraigned and filed a demurrer to the indictment, and that he afterwards entered a plea of not guilty and went to trial. The original record did not show affirmatively what disposition was made of the demurrer. The defendant now urges this as a fatal defect in the trial proceedings, but it is a very technical contention, and, we think, is without merit.

The case of State v. Walton, 50 Or. 142, 91 P. 490, 13 L. R. A. (N. S.) 811, and State v. Cartwright, 10 Or. 193, cited by appellant, do not seem to be in point. In the Walton Case there had been no plea to the indictment, and in the Cartwright Case the question was whether or not it was necessary for the record to show that the defendant was present at the trial. In the case at bar both of these facts appear fully from the record. We think the formal disposition of the demurrer was not so essential that the silence of the record thereon would constitute a fatal defect, where the defendant afterwards entered a plea of not guilty and went to trial without objection or question. State v. Sullivan, 52 Or. 614, 98 P. 493. The indictment in this case was [96 Or. 227] in the usual form and seems to have been entirely regular and sufficient.

Section 1626, L. O. L., provides that on criminal appeals the court "must give judgment, without regard * * * to technical errors, defects, or exceptions which do not affect the substantial rights of the parties." Here, the indictment being entirely sufficient, the failure of the court to formally pass upon the demurrer could not possibly prejudice the defendant in any way. The provision of the statute is, therefore, entirely controlling, and the case cannot be reversed upon such a technical omission of formal proceedings. State v. Pender, 72 Or. 94, 142 P. 615; State v. Leonard, 73 Or. 451, 144 P. 113, 681. Besides, it appears from a supplementary transcript filed in this court that the demurrer was in fact overruled, but that the clerk by some inadvertence overlooked the entry at the time in the journal, and it is now remedied by an order entered nunc pro tunc.

Mr. H. J. Stewart, father...