State v. Miller

• Decision Date: 21 December 1903
• Citation: 43 Or. 325,74 P. 658
• Parties: STATE v. MILLER et al.
• Court: Oregon Supreme Court

74 P. 658

43 Or. 325

STATE v. MILLER et al.

Supreme Court of Oregon

December 21, 1903

Appeal from Circuit Court, Harney County; Morton D. Clifford, Judge.

George S. Miller and others were indicted for murder. Defendants Miller and another were convicted of murder in the second degree, and appeal. Reversed.

The defendants George S. Miller and James Colwell were jointly indicted with Bert Bailey for the murder of Joseph Warren Curtis, and convicted of murder in the second degree; Bailey having been discharged from the indictment during the progress of the trial. Briefly, there was evidence tending to show that shortly prior to the homicide Curtis had driven off the range a number of horses (among them, a mare and colt claimed by defendant Miller), and at the time had the colt in a corral upon his premises; that, on being advised of the fact by his codefendant Colwell, Miller went to the Narrows 15 to 18 miles distant from his home, and near the residence of Curtis, where he was informed that the latter forbade him from coming upon his place; that he then took counsel over the telephone with an attorney at Burns, for the purpose of ascertaining his legal rights in the premises, and was advised that he could replevy the colt or take it wherever he found it, provided he was able to do so without committing a breach of the peace; that he, Bailey, and Colwell left the residence of the latter about 8 o'clock on the evening of March 22, 1902, gathering up several gentle horses on the way and taking them along, intending to turn the colt out of the corral and drive it away with them; that, to reach the corral, they cut an outer wire inclosure of Curtis, a third of a mile or more distant, Miller going ahead; that, when they had gone about half the distance to the corral, Curtis ordered Colwell and Bailey to take the horses off of his premises, and that they drove them back; that Miller was not aware of what had been done, nor of the presence of Curtis until he came near the corral; that Curtis was armed with a 22-caliber rifle, and the defendant with a shotgun; and that several shots were fired, resulting in the death of Curtis. The killing is admitted, but defendants seek to justify it as an act of self-defense.

J.K Weatherford, for appellants.

A.M Crawford, Atty. Gen., for the State.

WOLVERTON J. (after stating the facts).

At the trial, three photographs of the deceased, showing the gunshot wounds, were offered and admitted in evidence over the objection of defendants. This constitutes one of the assignments of error. One of the photographs shows shot wounds on the upper part of the left breast, about the shoulder, clavicle, and neck; and the other two portray numerous wounds of the same nature upon the back and left side. The purpose of introducing them was to show thereby the number of shots discharged upon the person, and that two of them took effect from the side or rear, in order to discredit Miller's statement that he fired all the shots while Curtis was shooting at him. McMullen, who took the photographs, testified that they were as correct as any that could be taken under the circumstances, and considering the condition of the light in the room. Dr. Marsden, after minutely and particularly describing the wounds found upon the body, further testified that the photographs represented their true character as nearly as could be done by the process, but that they were not exact reproductions, in that they failed to indicate the oblique appearance of some of the wounds on the upper part of the chest. Photographs, when admitted in evidence, should be shown to be correct representations of the conditions existing, or of the subject sought to be verified by the artificial view presented. Whether, however, the preliminary proofs in this regard are sufficient upon which to allow them to go to the jury, is a matter largely within the sound discretion of the trial court. Blair v. Pelham, 118 Mass. 420; Verran v. Baird, 150 Mass. 141, 22 N.E. 630; Harris v. Quincy, 171 Mass. 472, 50 N.E. 1042; Church v. Milwaukee, 31 Wis. 512. There is a limit, however, to the use of photographs as evidence, and, while they are competent for some purposes, they are not competent or appropriate for all. Generally, they may be used to identify persons, places, and things; to exhibit particular locations or objects where it is important that the jury should have a clear idea thereof, and the situation may thus be better indicated than by the testimony of witnesses, or where they will conduce to a better or clearer understanding of such testimony. They may also be employed to detect forgeries, and to prove documents where the originals cannot be readily produced. But unless they are necessary in some matter of substance, or instructive to establish material facts or conditions, they are not admissible, especially when they are of such a character as to arouse sympathy or indignation, or to divert the minds of the jury to improper or irrelevant considerations. Baxter v. Chicago & N.W.R. Co., 104 Wis. 307, 80 N.W. 644; Selleck v. City of Jonesville, 104 Wis. 570, 80 N.W. 944, 47 L.R.A. 691, 76 Am.St.Rep. 892; Fore v. State, 75 Miss. 727, 23 So. 710. The photographs here introduced were wholly unnecessary as proof of the number of shots fired, or the direction from which they were discharged, as it respects the person of the deceased. Nor did they serve to elucidate or to explain the testimony of the witnesses in the case. The shot wounds were distinctly visible upon the body, where also could be seen the direction from which they took effect, and all conditions attending them were susceptible of being established in the ordinary way by the testimony of the witnesses who had occasion to observe and examine them, so that photographic representations of the appearance of the body were neither necessary nor instructive for indicating the existing conditions. Beyond this, the pictures were not faithful reproductions, as one witness testified that they did not show the oblique character of some of the wounds, and they presented a gruesome spectacle of a disfigured and mangled corpse, very well calculated to arouse indignation with the jury, and were manifestly harmful instrumentalities for use as evidence against the defendants, without being useful, in a legitimate sense, for the state. There was error, therefore, in permitting them to go to the jury.

Colwell as a witness for the defense, related in detail the circumstances leading up to the difficulty resulting in the homicide from the time the colt was last seen upon the range, which tended to show, among other things, that he first discovered the animal in Curtis' possession upon his premises,...