State v. Gibson

• Decision Date: 03 August 1903
• Citation: State v. Gibson, 43 Or. 184, 73 P. 333 (Or. 1903)
• Parties: STATE v. GIBSON.
• Court: Oregon Supreme Court

73 P. 333

43 Or. 184

STATE v. GIBSON.

Supreme Court of Oregon

August 3, 1903

Appeal from Circuit Court, Josephine County; H.K. Hanna, Judge.

Thomas J. Gibson was convicted of murder in the first degree, and appeals.Reversed.

R.G Smith and L. Bilyeu, for appellant.

A.M. Crawford, Atty. Gen., and A.E. Reames, Dist. Atty for the State.

WOLVERTON J.

The defendant appeals from the judgment of the circuit court rendered upon his conviction of the crime of murder in the first degree, alleged to have been committed by shooting one B. Schonbacheler with a gun.The killing was admitted, and self-defense interposed as a justification.Defendant and Schonbacheler lived upon adjoining places, their dwellings being situated about 175 yards apart.It was shown by defendant's testimony and admissions that in the evening of the 18th of April, 1902, he took his gun, and went from his house toward a crossing on Rogue river, intending to ask one Van Dorn, who lived on the other side, for the use of his boat to go down the river in order to procure his own; that his course led him diagonally across his own premises approaching the division line between his and Schonbacheler's, the crossing, however, being upon his own land, and that by taking this direction it was his purpose to avoid going upon or across the premises of the deceased, who had threatened his life; that he saw deceased come out of his house with a gun, and proceed down upon his side of the line fence in a southeast direction, their courses converging to a common point; that deceased was continuously in view of him, except for a short time, when he disappeared behind a little raise or knoll; that, after reappearing, he passed out in front of him, being near the line, and within 100 yards of him, or about that, when he(defendant) called upon him to drop his gun; that thereupon the deceased, without saying anything, whirled around, threw his gun to his shoulder, and began taking aim at him, when defendant threw up his gun, took sight and fired, and that the deceased fell; that the defendant then started back to his house, and, after going a few steps, looked around, saw deceased moving, and heard him making a noise, when he fired again.The first shot took effect in the head, and the second in the body, either of which would have proven fatal.It was further shown that on the day previous Schonbacheler threatened that on the morrow he would blow out the defendant's brains with a shotgun, which threat was communicated to him on the morning of the tragedy.The gun which the deceased had was an old shotgun, and was lightly charged, and the accused knew the character of the weapon.There was some testimony also tending to show that the deceased had a bad reputation as being a dangerous and quarrelsome man.Other testimony was adduced, but the foregoing is sufficient to illustrate fairly the nature of the case and the conditions and circumstances under which the defendant seeks to excuse his act in taking the life of the deceased.The court, after reading the indictment to the jury, and defining the different degrees of murder, instructed them that: "There shall be some other evidence of malice than the mere proof of killing to constitute murder in the first degree; and deliberation and premeditation, when necessary to constitute murder in the first degree, shall be evidenced by poisoning, lying in wait, or by some other proof that the design was formed and matured in cool blood, and not hastily upon the occasion.You will not understand from this that it is necessary either to prove poisoning or lying in wait in this case, but there must be some proof satisfactory to your minds that the act charged was done with deliberation and premeditation, in order to find the defendant guilty of murder in the first degree."After defining the terms "deliberation,""premeditation," and "malice,"the court further instructed the jury as follows: "Certain presumptions of law are conclusive.Under our statute the following presumptions of law are declared to be conclusive: (1) The intention to murder from the deliberate use of a deadly weapon, causing death within a year.(2) A malicious and guilty intent is presumed from the deliberate commission of an unlawful act for the purpose of injuring another."Following these, there was an instruction as to the law of self-defense.The defendant having saved exceptions to the ruling of the court in this respect, error is assigned, and the question is presented for our determination whether the instructions were proper in view of the case made upon the evidence.

The instructions are practically in the language of the statute but the statute is not applicable in every case of homicide, at least without appropriate explanation and limitations.The first instruction or statute is itself a limitation upon the second, for it confines the operation of the presumption there designated to murder of a lesser degree than the first, and it has been so construed by this court.State v. Carver,22 Or. 602, 30 P. 315;State v. Bartmess,33 Or. 110, 54 P. 167.See, also, Hamby v. State,36 Tex. 523.The provision adopted by our statute that an intent to murder is conclusively presumed from the deliberate use of a deadly weapon probably comes from Mr. Greenleaf's treatise on Evidence, wherein it is announced as a rule of law that "a sane man is conclusively presumed to contemplate the natural and probable consequences of his own acts; and therefore the intent to murder is conclusively inferred from the deliberate use of a deadly weapon."1 Greenl.Ev. (16th Ed.) § 18.This text has been severely criticised as a logical non sequitur, and is not now regarded as sound.2 Bish.Cr.Proc. (2d Ed.) § 619;Clem v. State,31 Ind. 480."That a person intends the ordinary consequences of his voluntary act"(B. & C. Comp. § 788, subd. 3) is, by our statute, made a disputable presumption, and to deduce from it a conclusive presumption of an intent to murder from the deliberate use of a deadly weapon seems still more incongruous and illogical than Mr. Greenleaf's deduction from his premise.But the Legislature has made the presumption conclusive, and therefore indisputable, and it should be given that effect where applicable, unless contrary to natural justice.The doctrine of the celebrated case of Commonwealth v. York, 9 Metc. (Mass.) 93, 103, 43 Am.Dec. 373, reaffirmed inCommonwealth v. Webster, 5 Cush. 295, 309, 52 Am.Dec. 711, as interpreted by the distinguished jurist Chief Justice Shaw, in Commonwealth v. Hawkins, 3 Gray, 463, is that, where the killing is proved to have been committed by the defendant, and nothing more is shown, the presumption of law is that it was malicious, and an act of murder; but that it was inapplicable to that case, where the circumstances attending the homicide were fully shown by the evidence.Mr. Thompson states the doctrine thus: "Where it is shown that a homicide was committed with a deadly weapon, and no circumstances of mitigation, justification, or excuse appear, the law implies malice.The malice thus implied is that malice aforethought which is necessary to sustain an indictment for murder."2 Thomp.Trials, § 2531.The clearest exposition of the rule we have found is that given by Mr. Justice Campbell, of the Supreme Court of Mississippi, in the following language: "The law presumes the accused to be innocent of the crime charged until the contrary is made to appear; but when it is shown that he killed the deceased with a deadly weapon, the general presumption of innocence yields to the specific proof of such homicide, and the law infers that it was malicious, and therefore murder, because, as a rule, it is unlawful to kill a human being, and is murder, if not something else; and, as special circumstances only will vary the legal view of homicide so as to relieve it from the character of murder, it is inferred or presumed to be such from the fact of killing unexplained; but, if the attendant circumstances are shown in evidence, whether on the part of the state or the accused, the character of the killing is to be determined by considering them, and it is then not a...