State v. Doherty

• Court: Oregon Supreme Court
• Writing for the Court: BEAN, C.J.
• Citation: State v. Doherty, 52 Or. 591, 98 P. 152 (Or. 1908)
• Decision Date: 01 December 1908
• Parties: STATE v. DOHERTY.

98 P. 152

52 Or. 591

STATE v. DOHERTY.

Supreme Court of Oregon

December 1, 1908

Appeal from Circuit Court, Morrow County; H.J. Bean, Judge.

Dan P Doherty was convicted of murder in the second degree, and he appeals. Affirmed.

James A. Fee, for appellant.

A.M Crawford, Atty. Gen., and G.W. Phelps, Dist. Atty., for the State.

BEAN C.J.

The defendant was tried and convicted of murder in the second degree for shooting and killing one Oscar Allen in a saloon in the town of Lexington, on December 20, 1907, and from the judgment, sentencing him to the penitentiary for life, he appeals.

Allen was working for one Padburg on a farm near the town, and on the night of the tragedy he and his employer were in town and spent most of the evening at a saloon kept by one Inskeep. Allen had been engaged in a game of cards early in the evening, but about two hours before he was killed had withdrawn from the game, and, while waiting for Padburg to get ready to go home, lay down on a billiard table in the back room of the saloon and went to sleep. Defendant had been in the saloon some time early in the evening, had taken a drink or two, went away, and returned again about 10 or 11 o'clock. After remaining in the front room about an hour talking to Padburg, Bereshears, and Lane, the bartender, during which time he had several drinks, he offered to buy the drinks "for the house," and Padburg went into the back room where Allen was sleeping and awoke him, telling him to get up: "Dan (the defendant) is buying a drink for the house. Get a drink, and we will go home." Allen got up, went into the front room, and took a drink with the others. The defendant asked him to treat, which he did, and Allen then requested the bartender to give him a pint of whisky and a package, belonging to him, lying on the safe back of the bar, preparatory to going home. Defendant, however, insisted that he buy another drink, but Allen declined to do so, saying that he had bought one and did not want to buy another. Defendant kept insisting and called him a "cheap John" or "cheap geaser," until Allen became out of humor and told him not to repeat the request. Defendant then jumped around in front of Allen and told him "the dirt under his finger nails knew more than the breed of him." Whereupon Allen using some abusive language, caught him by the throat and pushed him into a corner of the saloon, but did not strike or attempt to strike him. The bartender called to Allen to stop, and told him he had gone far enough, and he left defendant and walked away. Defendant, nevertheless, followed him, "edging along the bar," as one witness said, saying, "You are a bigger man than I am, but I am not afraid of you," and still kept insisting that he buy the drinks, and repeated the term "cheap John" or "cheap geaser." Allen told him not to ask him again to buy any more drinks, and that if he did, using an oath, he would mash his mouth, or something to that effect. Defendant thereupon repeated the request, when Allen struck at him, and the defendant drew his gun and commenced firing at Allen, firing five shots in all, from the effects of which Allen died in a few minutes. All the witnesses, who were present at the time, except defendant, say that, as far as they could see, Allen did not strike defendant, but missed him, and that defendant was standing when he did the shooting. Defendant testified, on his own behalf, that Allen struck him on the chest, and he fell to the floor, and while on the floor took out his gun and fired one or two shots, then got up, and fired three more, as Allen was moving backward.

The court gave numerous instructions concerning the right of self-defense, stating therein, among other things That the danger "must not have been brought on by defendant." He must not be the aggressor by some overt act or demonstration. That if defendant used offensive and abusive language to deceased, and deceased expressed an intention to strike him if he repeated such remarks, and defendant did so, and invited and brought on the difficulty, he could not successfully set up self-defense, unless he, in good faith, withdrew, or attempted to withdraw, from the conflict. That if defendant had no reasonable apprehension of impending injury to himself, but did the killing from a spirit of retaliation or revenge, for the purpose of punishing defendant for past injuries done him, he could not avail himself of the law of self-defense. That if Allen assaulted the defendant before the shooting, but in good faith withdrew from the conflict by retreating or otherwise, defendant had no right under the law to shoot, unless the shooting and killing were necessary, or apparently necessary, to protect himself from death or great bodily harm. That the killing must have been unavoidable. These and other like expressions or statements were excepted to by defendant, and he now insists that they do not correctly state the law as applicable to the facts of the case. As we have said, the portions objected to are but excerpts from the instructions, and, of course,...