State v. Hawkins

• Citation: 23 P. 475,18 Or. 476
• Parties: STATE v. HAWKINS.
• Decision Date: 10 March 1890
• Court: Supreme Court of Oregon

23 P. 475

18 Or. 476

STATE v. HAWKINS.

Supreme Court of Oregon

March 10, 1890

Appeal from circuit court, Marion county; R.P. BOISE, Judge.

The defendant was indicted for the crime of murder in the first degree. A trial resulted in his conviction of murder in the second degree; and, having been sentenced to the penitentiary during his natural life, he has brought this appeal. The points relied upon to reverse the judgment will be noticed in the opinion.

(Syllabus by the Court.)

An affidavit made in support of a motion to postpone the trial of a criminal case until the next term of court examined, and held insufficient.

. In a criminal trial, where the defendant offers himself as a witness, and omits to testify concerning one fact which the state deemed material, and in the concluding argument counsel for the state mentioned such omission, but no objection was made to such argument at the time, held that, if counsel for the state transcended the proper bounds of debate before the jury, it was the province of defendant's counsel to take an objection at the very time of the utterance of the offensive words, and to take the ruling of the court upon their propriety.

If the objection had been promptly taken, and counsel had desisted there would have been no available error; or if an objection had been made, and the court had ruled the counsel was not in order, the defendant would have no cause for an exception.

An instruction by which the jury was informed that if they found, beyond a reasonable doubt, that the prisoner was then seeking O., the deceased, to provoke a quarrel with him, or with the intent of having an affray with him, and a difficulty did ensue, he could not, without some proof of a change of conduct or action, excuse the killing of O. on the ground that he believed that O. was attempting to draw a weapon with which to assault the deceased; held not erroneous.

An instruction by which the court told the jury that he need not admonish this intelligent jury that it is important to the ends of justice, and to secure public respect for our judicial tribunals, that juries agree upon verdicts in cases submitted to them, so that causes may be determined, and new trials and delays of justice avoided, held not erroneous.

If the publication of articles in a newspaper cause such prejudice in the public mind as to preclude a fair and impartial trial in the county where the action is pending, the defendant's remedy is a motion to change the place of trial for that reason, and not a motion to postpone the trial.

ON REHEARING

A party has not the right to arm himself, and seek his adversary, and provoke a quarrel or difficulty with him, and take advantage of it, and justify the killing of such party on the ground that he acted in self-defense.

. The right of self-defense does not imply the right of attack, and will not avail in any case where the difficulty was induced by the party himself.

W.M. Kaiser, S.L. Hayden, and Tilmon Ford, for appellant.

H.H Hewitt and E.B. Williams, for the State.

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

1. The first point made by the appellant's counsel is that the court below erred in overruling the motion for the continuance of the cause for the term. The killing took place on the 1st day of May, 1889. On the 13th day of June following the defendant was indicted by the grand jury; and on the 17th day of June, 1889, he filed his motion for a postponement of the trial of the cause until the next regular term of the court, for the reason that one M.B. Goldstein, a witness whose evidence was alleged to be material, could not then be procured at that term of court. The court declined to postpone the cause for the term, but did postpone it until the 15th day of July, 1889, to which time the court adjourned for the purposes of the trial. The residence of the absent witness was Portland, but he was the manager of an itinerant theatrical troupe which was performing in Washington Territory at the time. The affidavit recites: "I am informed and believe that said witness will swear that said deceased was armed with a pistol, and that he heard the report of the same, and saw the flash of the powder therefrom, when the deceased fired the same at me, which occurred at the time of my effort to defend myself from said attack of said deceased, and that the said witness testified before the coroner's jury as the state's witness. He was also subpoenaed by the state, attended the preliminary examination, but gave no testimony at that time. He was subpoenaed as a witness before the grand jury at the present term of this court, and gave testimony concerning said difficulty,"--and that no effort has been made by the state's counsel to detain said Goldstein as a witness in said cause. This affidavit is silent as to whether the same facts could not be proven by other witnesses; but on the 15th day of July, 1889, the application was renewed, and an additional affidavit was submitted by one of the defendant's counsel, in which he says that he knows of no other witness by whom the important facts stated in the affidavit of the defendant heretofore filed can be so clearly and satisfactorily established and proven. The killing occurred on the street in the city of Salem, and was witnessed by a number of people; and the affidavit fails to disclose that Goldstein possessed any different means of knowledge from all others who witnessed the unfortunate rencounter. The affidavit fails to disclose how or when the affiant acquired a knowledge of what Goldstein would swear to, nor does it appear why he was not promptly subpoenaed before he left the city after testifying before the grand jury; and, finally, the inference is made very strong by Mr Ford's affidavit that the same facts could be proven by other witnesses, though not so clearly and satisfactorily. It must be observed that if the deceased was armed with a pistol at the time of the killing, and made an attack on the defendant with it, and any witness knew the fact, his testimony on that subject would be neither dubious nor uncertain. It would be a fact about which there could be no doubt. Looking at the entire tenor of these affidavits, we are unable to say the trial court erred in overruling the appellant's application to postpone the trial. In such cases, the trial courts exercise a large discretion. Ordinarily, that court can determine better than we can whether or not the ends of justice will be promoted by an adjournment. Still, having a supervisory power over the proceedings of the circuit court, if we could see it had abused its discretion to the injury of the appellant, we would not hesitate to reverse. But in this case the fact does not appear. The appellant's application was too weak and uncertain to require the circuit court to allow a continuance.

Neither are the allusions in the affidavits to what the newspapers contained sufficient to have required the court to give a continuance. If the newspaper articles had been of so serious and inflammatory a character as to actually cause so deep a prejudice in the public mind as to preclude a fair and impartial trial in the county, the proper motion was not for a postponement, but for a change of the place of trial. Hill's Code, § 1222.

2. It appears from the record that during the progress of the trial the state introduced testimony tending to show that a person was seen in the vicinity of the house where the deceased was stopping on the occasion of his visit to Salem, on the evening of the homicide; and during the trial of said cause the defendant offered himself as a witness in his own behalf and made no allusion to this evidence so introduced by the state. During the closing argument made on behalf of the state by Hon. Richard Williams, he commented on this circumstance, saying that he did not know, and did not ask the jury to believe, that the person seen in the vicinity of where the deceased was stopping was the defendant, but that the defendant had been on the witness stand, had an opportunity to deny the same, but did not do so. No objection was made to this remark at the time of its utterance, but after the argument was closed the defendant's counsel asked the court to instruct the jury as follows: "The statute of this state, in allowing a party to testify in his own behalf in a criminal cause, expressly provides that his failure to do so shall not create any presumption against him; and I caution you against the comments of the counsel for the state, as they had no right to speak of the failure of the defendant to testify on any point or circumstance of the case." This instruction was refused, apparently, for the reason that it was not submitted to the court within the time prescribed by a rule of court. This rule requires all instructions desired by counsel to be submitted to the court before the last argument commences. Conceding, without deciding, that when a defendant in a criminal case offers himself as a witness in his own behalf, and is silent as to some fact appearing in the case against him, that no unfavorable inferences can be drawn against him on account of such silence, still I think, in this case, counsel for appellant did not raise the question at the proper time, or in the proper manner. If counsel for the state transcended the proper bounds of discussion, it was the province of defendant's counsel to take an objection at the very time of the utterance of the objectionable words and to take the ruling of the court at the time upon their propriety. Suppose that objections had been promptly made to the observations of counsel for the state, and he had immediately desisted. There would have been no available error. Worley v. Moore, 97 Ind. 15. Or, if objection...