State v. Doris

• Citation: 94 P. 44,51 Or. 136
• Parties: STATE v. DORIS.
• Decision Date: 03 March 1908
• Court: Supreme Court of Oregon

94 P. 44

51 Or. 136

STATE v. DORIS.

Supreme Court of Oregon

March 3, 1908

Appeal from Circuit Court, Wallowa County; T.H. Crawford, Judge.

James Doris was convicted of manslaughter, and appeals. Reversed.

A.S. Bennett, for appellant.

I.S. Van Winkle, for the State.

KING, C.

James Doris was convicted of the crime of manslaughter for the killing of Chas. G. Sim in Wallowa county on October 1, 1906 and sentenced to 10 years' imprisonment, from which he appeals.

The killing is admitted, but defendant claims that, while acting in self-defense, the weapon used was accidentally discharged shooting Sim, from the effects of which he died on the following day; that Sim was a large and strong man, weighing 185 pounds, but defendant was small in stature weighing but 125 pounds; that deceased made a vicious assault upon him, and considering his life in danger, and being physically unable to defend himself, he drew the pistol as the only means of self-preservation, but that when he did so he expected to stop the attack upon him without the necessity of shooting his assailant. The trouble appears to have had its inception in a remark which decedent quoted defendant with having made, to the effect that certain young ladies in the vicinity could not play for a dance which was soon to take place, and in the arranging of which defendant was one of the committee. It appears that defendant, on hearing of the statement, called upon Sim for an explanation; that he first denied having made the remarks attributed to him, but, on being reminded of his statements by one of the young ladies present, admitted having used the imputed words, whereupon defendant called him a "d_____d liar," when deceased, who was but a few feet away, made the alleged assault, with the result indicated.

At the trial witnesses were called by the state who testified that Sim, on the day of his death, was told by his physician and friends present that he could not recover, whereupon he was requested to make such statement as he desired concerning the tragedy. On cross-examination facts were elicited tending to show that although decedent was very weak and it appearing that death was near, of which he was informed by the physician in attendance, he entertained hopes of recovery, concerning which the physician, the state's witness, testified on cross-examination as follows: "Q. State whether or not you had informed him of his condition before he made this statement? A. I did. He says, 'Doctor, what do you think about my case?' I says: 'Sim, I will have to be honest with you. You can look for the worst; expect the worst'--I says. And his remarks he made, if you asked for them--he says, 'Why,' he says, 'Why should I die? I feel stronger now than I did last night, and I'll tell you,' he says, 'I have been in worse shape than this,' or words to that effect. He said he had typhoid fever at one time, and he says: 'It will be probably necessary to have some brandy handy, and if it is necessary, give me brandy.' And I gave him hopes then, and I felt like being as hopeful with him as I possibly could." After adducing further testimony on the point, the declaration, without objection, was admitted in evidence, as follows:

"Lostine, Oregon, Oct. 22, 1906.

"Statement of Chas. G. Sim:

"I was sitting in parlor of Hotel Haun, and Jimmie Doris said: 'Come out, Charley. I want to talk to you.' I stepped out, and Flossie Haun and Jimmie Doris and O.W. Pagan was present. He said: 'Did you tell Flossie Haun that he (Doris) said that they could not play for the dance?' I said, 'No,' at first. Then Flossie asked him if he didn't tell me that Jimmie Doris said so, and I said, 'Yes.' Then Doris called me a damned liar. Then I caught him with my left on his jaw. I was standing close enough to do so. Just as I struck him he fired. He must have had his gun ready to fire. I have no gun, and do not own one. I never had any trouble with him before. He made a nasty remark in his paper some time ago about two members of the McCurdy family been doing the town. I then asked, 'Who edited the locals?' and he said: 'That is my business.' I didn't say a word.

Charles G. Sim.

"After reading the paper, Mr. Sim requested to add that just before he called him a d_____d liar he turned away and said; 'Oh, it dosen't amount to anything anyway, and there was no harm done.'

S.P. Crow.

"Witnesses:

"W.R. Hislop.

"Dr. E.R. Seely.

"S.L. Magill."

After the state rested a witness to the making of the declaration was called, who testified that all the statements made by the declarant at the time were not included in the written statement. After saying that the declaration was obtained by questions and answers, the substance of which was written down and afterwards corrected by the deceased, the witness stated that the declarant was asked concerning his "intention at the time that he struck the defendant, if he intended to follow it up by giving him a thrashing," and that decedent answered, "Yes," that he intended to punish defendant and "would have done so if he had not got him, or shot him." The witness was then interrogated as to what, if anything, was said to Sim just before he made this statement in relation to the purpose thereof and the probability of his recovery and as to the purpose for which the dying declaration was made, objections to which were made and sustained. The following offer was then made by the defense, but denied by the court: "Defendant offers to prove by the answer to the last question propounded that just before making the statement introduced in evidence parties in the room, and among others Mrs. Haun, said to Sim, 'We are not afraid but that you are going to get well all right, but we want your evidence so as to punish him just as hard as we can,' and then Sim immediately after made the statement introduced in evidence, and for the purpose of proving this we ask to renew the question just asked, and to have the court permit the same to be answered." After the case was closed counsel for defendant, as bearing on the point, requested the court to instruct the jury that: "The dying declaration of the deceased has been offered in evidence, but this ought not to be considered by you, unless it was made under a sense of impending death, and if you believe from the evidence that the deceased did not expect to die, but expected to get well at the time this statement was made, you should give it no consideration whatever." This was refused, and the court, over objections thereto, inter alia, said to the jury: "In this case the dying declarations of the deceased have been introduced in evidence and read to you. The law presumes that the deceased, when fatally wounded, with knowledge of that fact of his condition and that he must presently die, is so impressed with the solemnity of the occasion and his surroundings that he has every inducement to speak the truth as fully as though he were under oath, and I instruct you that the dying declarations of the deceased introduced in evidence in this case are entitled to be considered by you as other evidence in the case given by witnesses under oath before you, and you are entitled to give the same such consideration and weight as you think, under all the circumstances, the same is entitled to." The point raised by the testimony offered and instruction requested, as well as objection to the instruction given, is that after the declaration was admitted the jury should have been permitted to determine whether the statements were made under such circumstances as would entitle them to consideration as the dying declaration of decedent, and accordingly what, if any, weight should be given thereto, and that in order to determine the weight and credibility thereof the testimony as to all the facts connected therewith should have been admitted; while the state insists that the question is one for the determination of the court alone, and that, when the statement was once admitted in evidence, the jury were precluded from questioning it, or considering the incidents surrounding the declaration, and bound to treat and consider it in the same manner, and give the same credit thereto, to which the testimony of any witness sworn and testifying in the cause might, in their judgment, be entitled to receive. And from the rulings made and instructions given this appears to have been the position of the court below.

In this connection it will be noted that the evidence offered is far from being conclusive as to whether at the time the declarant made his statement he believed death was near. He, at least manifested some doubt on the subject, and the doctor present testified that he gave him some hope. The statement, however, was admitted without objection, except as to certain specified parts thereof, from which it follows that the inquiry as to whether the declaration was admissible in the first instance is not before us, and the questions arising on that point being argued and presented by the parties hereto on the assumption that the preliminary inquiry disclosed sufficient facts to make the declaration prima facie admissible, it will be so treated here. But, conceding its admissibility in the first instance, it appears from the evidence before the jury, as well as from the proffered testimony, that the question as to whether declarant was in such a condition and state of mind as to entitle his statements to the same degree of credit as is usually given to one who is in extremis, and has no hope whatever of recovery, and as to whether he was not given sufficient encouragement to justify him in entertaining strong hopes of recuperation, is one concerning which reasonable minds might draw different inferences and reach different conclusions. From...