State v. Holbrook
| Decision Date | 05 October 1920 |
| Citation | 98 Or. 43,192 P. 640 |
| Parties | STATE v. HOLBROOK ET AL. |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Klamath County; D. V. Kuykendall, Judge.
On petition for rehearing. Petition denied.
For former opinion, see 188 P. 947.
The defendants, William Holbrook and J. E. Paddock, were jointly charged with murder in the second degree for the killing of O. T. McKendree. They did not ask for separate trials, but appeared together and by the same attorneys, and were tried together. The jury found both defendants guilty of manslaughter. The defendants appealed to this court, and here, as in the circuit court, the defendants joined hands for they not only appeared by the same attorneys, but they united by filing a single opening brief and a single reply brief.
The printed abstract filed by the defendants contained more than 30 assignments of error. The defendants did not in their two printed briefs discuss or even mention all the assignments of error. After hearing the appeal, this court, speaking through Mr. Justice Burnett, rendered an opinion affirming the judgment of the circuit court. 188 P. 947. In that opinion every assignment of error presented by the defendants in the two printed briefs, jointly filed by them, was examined and decided.
The defendants have petitioned for a rehearing; but they have done so through different attorneys and by filing separate petitions. In the petition of William Holbrook six grounds for a rehearing are assigned as follows:
(1) "Permitting the character witnesses of the plaintiff to testify to a specific crime that the witnesses heard defendant Holbrook had committed;" (2) "permitting the state to ask the witness Harry Bailey, who was called by defendants, to testify as to the reputation of the defendant Wm. Holbrook for being a peaceable citizen, 'if the defendant Holbrook had not been accused of stealing sheep from Mr. S. B. Chandler';" (3) "permitting plaintiff to give testimony as to the reputation of deceased for being a peaceable citizen;" (4) refusing to permit Letcher Holbrook "to testify concerning the conversation with the witness Santiago"; (5) refusing to permit the defendants to offer testimony concerning the conversation said to have been had between Santiago and H. C. Lemler on April 17th; and (6) refusal to direct a verdict of not guilty.
The petition filed in behalf of J. E. Paddock enumerates four grounds for a rehearing:
(1) Refusal to sustain a motion directing a verdict of not guilty; (2) refusal to give an instruction upon the subject of circumstantial evidence; (3) permitting evidence of experiments; (4) refusal to permit evidence of the conversation said to have occurred on April 17th between Lemler and Santiago.
In their petitions for a rehearing, the defendants occupy common ground, so far as concerns the question of the admissibility of the statements made by Santiago to Lemler; and, although the contentions made by one defendant do not in any respect conflict with those made by the other, still it will be observed that, with the exception of the statements claimed to have been made by Santiago to Lemler, the petition of one defendant presents questions different from those presented by the petition of the other. The petition of Holbrook presents and discusses questions which are not even referred to in the two original briefs filed by the defendants. None of the points raised by Holbrook were discussed or even mentioned in the original briefs filed by the defendants except the point involving the conversation with Lemler and the motion for a directed verdict. The petition submitted in behalf of Paddock presents additional arguments in support of the questions discussed in his petition, although the same questions were presented and discussed at the original hearing.
Renner & Chastain, of Klamath Falls, for appellants.
G. A. Will and M. E. Pogue, of Salem, for appellant Paddock.
Weatherford & Wyatt, of Albany, for appellant Holbrook.
W. M Duncan, Dist. Atty., W. S. Wiley, Deputy Dist. Atty., and Thomas Drake, all of Klamath Falls, and W. Lair Thompson, of Portland, for the State.
HARRIS J. (after stating the facts as above).
It is difficult to convey a clear understanding of the different phases of the several questions raised by the petitions for a rehearing, unless a somewhat extended account is given of the evidence found in the record. Dry Prairie is a plateau located about 32 miles from Klamath Falls; it is about 5 miles north and south and about 4 miles east and west. The plateau, particularly on the east side, is bordered by an irregular line of hills, upon which are growing trees. The homicide occurred on Saturday, April 20, 1918, at what is referred to in the record as the Holbrook camp. This camp consisted of two tents, which had been set up about one-half a mile from the east side of the plateau. As we read the record, the Holbrook camp was located north of a line drawn east and west through the center of Dry Prairie, although one witness seems to think that the camp was located near the center of the east side of the prairie. One of the Holbrook tents at the Holbrook camp was 10X10 feet in size, while the dimensions of the other were 10X12 feet. Both tents opened towards the east. The tents were about 6 feet apart; the larger one standing south of the smaller tent.
Along the east side of Dry Prairie, but south and a little east of the Holbrook camp, are three buildings. One building was one-half of a mile distant from the Holbrook camp; the second or middle building was about three-fourths of a mile from the Holbrook camp; while the third was about a mile south of the middle building. The building nearest the Holbrook camp is referred in the record as the Mrs. Paddock homestead; the middle building, as the Paddock homestead; and the third, as the Davis or Paddock ranch house. On the day of the homicide at a point north 35~ 25' east 1,900 feet from the Holbrook camp stood a tent, known in the record as the McKendree camp. Near the northwest corner of Dry Prairie, and between 2 and 3 miles from the Holbrook camp, were some corrals, which are known in the record as the shearing corrals.
About 8 years prior to the homicide a post and wire fence had been constructed along a line running east and west for a distance of nearly a mile. A similar fence had also been constructed running north and south for a distance of more than a mile. Succeeding frosts had caused many of the posts to be drawn from the ground, with the result that a considerable portion of the fence was lying upon the ground, and in many places where the posts remained standing the wires had been severed. The fence line which runs north and south is west of the site of the Holbrook camp, while the fence line extending east and west runs between the McKendree and Holbrook camps, and hence this line is north of the Holbrook camp and south of the McKendree camp. These two fence lines corner at a point which is 2,200 feet northwest from the Holbrook camp. The fence line which extends east and west is, at the point which is directly north of and nearest to the Holbrook camp, about 600 feet distant from that camp.
East of the Holbrook camp, and about 2,550 feet from it, was a spring. In front of and about 25 feet from the larger of the two Holbrook tents stood a wagon, over all or most of which had been thrown a wagon cover.
J. E. Paddock owned or controlled several hundred acres of deeded land along the east side of Dry Prairie. This deeded land included the three buildings already mentioned. Paddock had made an application for additional acreage under the act "to provide for stock-raising homesteads and for other purposes." This additional acreage so applied for was north of and adjacent to the deeded lands. We infer from the record that the remainder of Dry Prairie was government land. The Holbrook camp was located on the tract which had been applied for by Paddock. The McKendree camp was located on the public domain.
Letcher Holbrook owned a band of 2,500 sheep, and his brother William Holbrook had a contract under the terms of which the latter was entitled to a certain portion of the wool and increase. On April 12, 1918, Letcher Holbrook, with the approval of William Holbrook, leased the Paddock lands "for the lambing season, 30 or 40 days," and at the same time Letcher Holbrook employed Paddock to help with the sheep during the lambing season. The Holbrook sheep were at Antelope Springs, about 15 miles distant from Dry Prairie. On the morning of Saturday, April 13th, the sheep were started for Dry Prairie. On Monday morning, April 15th, the Holbrook sheep were driven by Letcher Holbrook and William Holbrook and their herders into the southeast corner of Dry Prairie near the ranch house.
The decedent, McKendree, owned a band of about 2,300 sheep, which had been driven into Dry Prairie for the lambing season. Jim Santiago, a Spaniard, was in charge of the McKendree sheep. The state claims that the McKendree sheep reached Dry Prairie between the 10th and 12th of April, while the evidence offered by the defendants is to the effect that none of the McKendree sheep were seen anywhere on Dry Prairie until Monday, April 15th, after the Holbrook sheep had been driven into the southeast corner of the prairie.
The defendants claim that on Monday, April 15th, after the Holbrook sheep had entered Dry Prairie, and while they were being driven north toward the Paddock homestead, a band of about 800 of the McKendree sheep was driven fast from the southwest corner of the prairie towards the Paddock homestead, apparently for the purpose of intercepting the Holbrook sheep. The witnesses for the defendants say that, in order to prevent the McKendree and...
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