State v. Holbrook

• Decision Date: 16 November 1920
• Citation: State v. Holbrook, 98 Or. 43, 193 P. 434 (Or. 1920)
• Parties: STATE v. HOLBROOK ET AL.
• Court: Oregon Supreme Court

193 P. 434

98 Or. 43

STATE v. HOLBROOK ET AL.

Supreme Court of Oregon

November 16, 1920

In Banc.

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

On second petition by defendantJ. E. Paddock for rehearing.Petition denied.

For original opinion, see188 P. 947.

Renner & Chastain, of Klamath Falls, G. A. Will, of Minneapolis, Minn., and M. E. Pogue, of Salem, for appellants.

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.

On page 11 of the manuscript of our opinion, filed October 5, 1920 denying the petitions of the defendantsWilliam Holbrook and J. E. Paddock for a rehearing (192 P. 640), we quoted from the reported testimony of Garcia and said that he stated "I saw the man with yellow trousers (Paddock) lift his arm and shoot a shot."Paddock has filed a second petition for a rehearing, and, among other things, the writers of the petition say that they"are unable to find any such language in the record of Garcia's testimony."The point sought to be made by the defendant Paddock is that there was no direct evidence against him, and that therefore his substantial rights were materially prejudiced by the refusal of the trial court to instruct the jury on the subject of circumstantial evidence.As we view the record, the case against Paddock was not entirely dependent upon circumstantial evidence, but upon the contrary there was direct testimony given by the two witnesses Santiago and Garcia; and when in our written opinion rendered on the petitions for a rehearing, we quoted Garcia as having said, "I saw the man with yellow trousers (Paddock) lift his arm and shoot a shot,"we did so for the purpose of explaining the foundation upon which we rested our conclusion that there was direct testimony against Paddock.If we have erroneously quoted from the record, then of course the foundation upon which our conclusion is based is to that extent weakened.We did not, however, erroneously quote from the record, but the answer ascribed to Garcia is exactly as it is written in the record which the defendants presented to us on this appeal.As shown on page 122 of the transcript of testimony, near the bottom of the page, counsel for the defendants, when cross-examining Garcia, asked the following question: "What did you see when you heard the next shot?"And Garcia answered thus: "I saw the man with yellow trousers lift his arm and shoot a shot."There is no controversy whatever about the identity of the man...