State v. Gray

• Decision Date: 09 January 1905
• Citation: 79 P. 53,46 Or. 24
• Parties: STATE v. GRAY. [*]
• Court: Oregon Supreme Court

79 P. 53

46 Or. 24

STATE v. GRAY. ^[*]

Supreme Court of Oregon

January 9, 1905

Appeal from Circuit Court, Union County; Robert Eakin, Judge.

Woodson Gray, having been convicted of manslaughter, appeals. Affirmed.

J.D Slater and T.H. Crawford, for appellant.

A.M Crawford, Atty. Gen., and Samuel White, Dist. Atty., for the State.

BEAN J.

The defendant was indicted for murder in the first degree for killing one A.M. Halgarth in March, 1903. He was convicted of manslaughter, but upon appeal the judgment was reversed. State v. Gray, 43 Or. 446, 74 P. 927. He was retried and again convicted of the same crime, and from the judgment entered thereon he brings this appeal.

There was evidence for the state tending to show that, on the morning of the killing, the defendant, accompanied by his son Wade, a lad about 14 years of age, was going along the public highway by the deceased's house on his way to the neighboring school for the purpose of having his son, who had been suspended because of a difficulty between him and the children of the deceased, reinstated and readmitted to the school. In place of traveling in the beaten way on the north side of the road, he walked along and over the rough and frozen ground on the south side--the one nearest the house of the deceased--and while passing the house was seen to be looking in that direction, as if watching for some one. After he had passed the house a short distance, the deceased, who was in the field near by, hailed him and started toward the road fence. As he approached the fence he said, "Gray are you going to the schoolhouse?" and the defendant replied, "I am going to the schoolhouse to clear up those s____ of b____ of lies you told the teacher." The deceased then started to get over the fence, when the defendant said, "Come on, I am fixed for you," and drew a revolver. The deceased came over the fence and started toward the defendant, saying, "I told no untruth." During all this time the defendant was cursing and abusing the deceased and his family, calling him a black s____ of a b____, a liar, and using other abusive and insulting language. After crossing the fence, the deceased continued to approach the defendant, who, in the meantime, continued his abusive and insulting language and threatening attitude, and when he got near enough he attempted to seize the arm of the defendant by which he held the revolver, but before he could do so was shot through the body by the defendant. Two or three more shots were fired in rapid succession, when the deceased grappled with the defendant, threw him down, and took the revolver from him. While he had the defendant down endeavoring to take the revolver from him, defendant called to his son to take his knife and kill the "s____ of a b____. The boy, in obedience to the order of his father, stabbed the deceased several times in the back, when he got up and started to move away, but after taking a few steps fell, and on the succeeding day died from the effects of the gunshot wound. During the difficulty the defendant said to his son, "I wish I had killed him, Wade." This evidence is principally from the dying statement of the deceased, and is contradicted in many particulars by the testimony of the defendant and his son, but for the purposes of this opinion it must be taken as true. After making the necessary preliminary proof, the dying declaration of the deceased, which had been reduced to writing and subscribed by him and witnessed by the attending physician and J.T. Chandler, was admitted in evidence. Chandler was called by the state, and testified that he was present at Halgarth's house from about 10 o'clock on the morning of the shooting until the deceased died, on the following day, and that he signed the dying declaration as a witness. On cross-examination he said that he was present in the room all the time while the dying statement was being reduced to writing by the physician. He was thereupon asked: "Well, now, does that statement taken down there by Dr. Whiting, does that contain all Mr. Halgarth stated there during that time?" To this question an objection was made and sustained, because it was not proper cross-examination. The court informed counsel at the time that they might make the witness their own if they so desired, but counsel refused to do so, and now insist upon the ruling as error.

The limit and scope of a proper cross-examination has been so often discussed by this court that it is unnecessary to enlarge upon the subject at this time. It has been held that it must be limited to the matter stated by the witness in his direct examination, or properly connected therewith, and that a witness cannot upon cross-examination be questioned with regard to that which does not impeach, rebut, explain, or modify, or in some way qualify, something he has testified to in chief. He can only be examined as to other matters by the examining party making him his own witness. Goltra v. Penland (Or.) 77 P. 129; Ah Doon v. Smith, 25 Or. 89, 34 P. 1093; State v. Savage, 36 Or. 191, 60 P. 610, 61 P. 1128; Williams v. Culver, 39 Or. 337, 64 P. 763. Now, the only evidence given by Chandler on direct examination was that the writing was executed by Halgarth and signed by him as witness. It was upon this subject only, or matters properly connected therewith, that he could be cross-examined. If counsel desired his testimony as to whether the dying declarations of the deceased were truly stated in the writing, they should have made him their witness for that purpose, and could not obtain the information by a cross-examination.

The defendant sought to justify his act in killing Halgarth upon the ground that it was done in necessary self-defense. Upon this subject the court charged, in substance, as follows:

The law gives to every man the right of self-defense. This means that a man may defend his life and person from great bodily harm. He may repel force by force, and may resort to such force as under the circumstances surrounding him, may reasonably seem necessary to repel the attack upon him, even to the taking of the life of his assailant. If you find from the evidence that the defendant, at the time of the fatal shot or cuts, had reasonable ground to believe, and did honestly believe, that his life was in imminent danger, or that he was in danger of great bodily harm at the hands of the deceased, and not being the aggressor himself, and so honestly believing, he fired the fatal shot or inflicted the fatal wounds, he was justifiable under the law in so doing. And by "aggressor" I mean one who brings on a conflict or affray by some overt act or demonstration calculated to precipitate the difficulty or conflict. If you find that the defendant was traveling along the public highway past the premises of deceased when the difficulty occurred, the defendant was where he had a right to be, and was not required to retreat to the wall. If a person is assaulted in such a way as to induce in him a reasonable belief that he is in actual danger of losing his life or of suffering great bodily harm, he will be justified in defending himself, although the danger be not real, but only apparent. No one has a right to kill another, even in self-defense, unless such killing is apparently necessary for such defense. Before a person can justify the taking of a human life on the ground of self-defense, he must, when attacked, employ all reasonable means within his power, consistent with his safety, to avoid the danger and avert the necessity for the killing. The right of one to take the life of an assailant in self-defense can only be exercised to defend his own life or his person from great bodily harm. Danger of a battery alone will not be sufficient. It is not necessary that the assault made by the deceased upon the defendant, if an assault was made, should have been made with a dangerous weapon. An assault by the deceased with his fists alone, if there was an apparent purpose and the ability to inflict death or great bodily harm upon the defendant, would be sufficient to justify the killing in self-defense, if the defendant, at the time he shot and killed the deceased, had reason to believe, and did believe, that he was in imminent danger of death or great bodily harm at the hands of the deceased. Homicide can be justified or excused on the ground of necessity alone. The necessity must be apparent, absolute, and unavoidable, or the defendant must from all the circumstances have honestly believed it to be so. To excuse homicide, the party must act under an honest and well-founded belief that it is necessary to take life to prevent death or great bodily harm to himself. The danger must be so urgent that the killing is absolutely or apparently necessary, and must not have been brought on by the defendant. Imminent and apparent danger means such overt actual demonstrations as would make the killing apparently necessary to prevent death or great bodily harm. The danger must be unavoidable according to the facts and circumstances as they honestly appeared at the time to the defendant, but it is not necessary...