State v. Holbrook

• Decision Date: 06 April 1920
• Parties: STATE v. HOLBROOK ET AL.
• Court: Oregon Supreme Court

188 P. 947

98 Or. 43

STATE v. HOLBROOK ET AL.

Supreme Court of Oregon

April 6, 1920

In Banc.

Appeal from Circuit Court, Klamath County; D. V. Kuykendall, Judge.

William Holbrook and J. E. Paddock were convicted of manslaughter and they appeal. Affirmed.

Under an indictment charging them with the crime of murder in the second degree by killing O. T. McKendree, the defendants were convicted of manslaughter, dissatisfied with which, they appeal.

Bennett J., dissenting.

W. H. A. Renner, of Klamath Falls (Renner & Chastain, of Klamath Falls, on the brief), for appellants.

W. M Duncan, Dist. Atty., of Klamath Falls, and W. Lair Thompson of Portland (W. S. Wiley, Deputy Dist. Atty., and Thomas Drake, both of Klamath Falls, on the brief), for the State.

BURNETT J.

The scene of the homicide described in the indictment is Dry Prairie, a plateau approximately 4 or 5 miles square, in Klamath county. There are some ridges in the plain, and it is surrounded by wooded hills. In the immediate vicinity of the killing, tussocks of short grass were growing in a sandy soil, about 6 inches apart on the average. It was a suitable place for keeping sheep during the lambing season. The decedent was the owner of a band of about 2,500 sheep, in charge of a Spaniard named Jim Santiago, who, it appears, claimed a one-fourth interest therein under a contract for the purchase of the same from the decedent, and for which he had not yet completed the payment. It is claimed on behalf of the prosecution that Santiago had gone into Dry Prairie several days prior to the homicide, and likewise before the advent of the defendants, with another band of sheep owned by the defendant Holbrook and his brother, and accompanied by Paddock as an employé of the Holbrooks.

It is contended by the defendants that, as they approached the prairie from the southeast over the adjacent hills, they had a full view of the valley and saw no sheep there at all. It soon developed, however, that Santiago was there with sheep, and some discussion took place between himself and the defendants from time to time about his rights there. During their interview Paddock asserted control of the land where Santiago was then camped, whereupon the latter on the next day moved his camp farther north, and established it on a portion of the public domain. Meanwhile, the defendants had made their camp, consisting of two tents facing eastward, at a point approximately 1,900 feet south 35~ 25' west from the camp of Santiago, as the latter was last established.

It seems that, when Santiago learned of the coming of the defendants and of their claim to the grazing on the prairie, he sent word to McKendree, who was then at Klamath Falls, about 30 miles distant. McKendree came to Dry Prairie on the morning of April 20, 1918. At that time his sheep were in the western part of the prairie, south of some springs near which were some shearing corrals. He went there and found Santiago. All this time McKendree was riding on a white horse and was armed with a repeating rifle. He returned with Santiago, traveling in an easterly direction towards the latter's camp. On arriving at a point approximately north of the camp of the defendants, described by Santiago as "about half of a quarter of a mile" away, they separated; Santiago going towards his own camp, and the decedent riding directly to the camp of the defendants.

Digressing here, it is contended by the defendants and their witnesses that the decedent came to their camp before going west to the springs. On his arrival at their tents, as they state, he quarreled with them and called them vile names, threatening to "blow their caps off," leveling his rifle at them, and compelling them to come out from their tent at the point of his gun, and demanding that they leave the prairie. He had dismounted, as they say, and at this juncture his horse broke away from him, whereupon he pursued on foot and caught it, some distance east of their tents. He there mounted the horse and proceeded on a northwesterly course towards the springs already mentioned, calling out to them as he passed that, if he caught either of them, he would beat him so his mother would not know him. He then went on in that direction, and later returned, as already stated, making the first time he appeared at their camp according to the theory of the prosecution, and the second time as the defendants assert. They say that he rode up and renewed the quarrel, demanding that they leave, claiming that there was not room enough in the prairie for two bands of sheep. Paddock contended, according to the defendants' story, that he had before that kept sheep there through the lambing season when other bands were there, insisting that he had a better right there than any one else, on account of having filed an application for a stock-raising homestead under the act of Congress of December 29, 1916 (U. S. Comp. St. 1918, U.S. Comp. St. Ann. Supp. 1919, §§ 4587a-4587k), entitled "An act to provide for stock-raising homesteads, and for other purposes."

Among other things attributed to the deceased by the defendants in that altercation was a statement by McKendree that he was going to turn into the valley 600 bucks and that Holbrook would have to herd them. They ascribe to him various threats of personal violence as he sat on his horse. At this time Holbrook was inside of or in the entrance to the larger tent of the two, and Paddock was outside, some 20 or 30 feet distant, near a wagon standing there. The defendants say that McKendree rode his horse against Paddock and forced him back several steps, and started to raise his gun, when Holbrook fired two shots in quick succession from a rifle which he had in hand at the time, all while McKendree was facing him. Frightened by the shots, the horse whirled and started towards the Santiago tent, and McKendree fell off. One of the shots passed through his body, entering the chest above the heart, severing the aorta and the vena cava, and lodged in the muscles of the back, after fracturing the fifth and sixth ribs. This shot was shown to be by a soft-nosed bullet which, as some witnesses described it, practically exploded inside the body after striking some bones. The defendants contend that Holbrook fired both shots, and that Paddock was not armed and did not shoot at all. They maintain that he was an innocent bystander.

The direct testimony for the state as to the killing itself comes from Santiago and another Spaniard named Emanuel Garcia. The former narrates that, acting under directions of McKendree after separating, he shouted to Garcia, who was at the Santiago tent, to get a saddle horse for him, as he was going to accompany McKendree some 7 or 8 miles away to find new pasture for their sheep. He says that he watched McKendree continually as the latter rode towards the tents of the defendants and until he was killed; that the deceased rode up in front of the two tents occupied by the defendants and dismounted; that after some 10 minutes' conversation, which Santiago could not hear from his distance, McKendree remounted his horse and started to turn to the right, when one shot was fired from the larger tent; and that, as the horse whirled and started to run in fright, the other defendant, who had stood outside the tent participating in the conversation, fired another shot with a pistol. Medical men who were witnesses for the state testified in substance that there was a gunshot wound entering from the back of the deceased, fracturing the neck of the shoulder blade and passing through the body upward at an angle of about 45 degrees; the exit being just under the collar bone, making a clean-cut wound through the body.

Garcia declares that, having heard the shouted orders of Santiago, he left his camp and went to get Santiago's horse, traveling approximately southeast until he arrived at a point, as shown by the maps introduced, almost due east from the tents of the defendants, at a distance of 2,550 feet. He describes the occurrences after McKendree arrived at the defendants' camp substantially as related by Santiago, and particularly the fact that the man outside the tent fired a pistol shot immediately after the fatal shot, and as the horse turned to run. Santiago, as he says, mounted his horse as soon as he could saddle it, rode some miles to a telephone, and gave information of the homicide to the deputy sheriff. Some of the party of employés with the defendants did the like.

It is in testimony that individuals who arrived there some two hours after the killing were not permitted to go near the body, but were invited to sit down in the larger tent, and were cautioned by the defendants not to disturb two empty cartridge shells that were lying in front of the tent. The defendants claimed not to have touched the body, or to have gone near it, or disturbed anything on the scene, from the time McKendree fell from his horse.

The medical experts declare that the wound severing the blood vessels mentioned was instantly fatal, and that the wound through the shoulder blade would at once disable that arm, so that it would be incapable of holding or carrying a rifle. A witness for the state, who was the first to arrive there of any one except the defendants and their employés, but who claimed that his eyesight was not very good, came near the defendants' tents and was told by them that there was a dead man there, but that they said "We will not say who killed him." The witness claims to have looked casually in the direction of the dead body, and to have seen that it was lying on its back, with its right leg bent, with the knee upward, and a gun lying on the west side, with the butt northeast and the barrel west, and that the body was about 10...