State v. Mims

• Decision Date: 23 July 1900
• Citation: 61 P. 888,36 Or. 315
• Parties: STATE v. MIMS.
• Court: Oregon Supreme Court

61 P. 888

36 Or. 315

STATE v. MIMS.

Supreme Court of Oregon

July 23, 1900

Appeal from circuit court, Umatilla county; S.A. Lowell, Judge.

Edwin L. Mims was convicted of manslaughter, and he appeals. Affirmed.

Jas. A. Fee and J.H. Raley, for appellant.

H.J Bean, Dist. Atty., and J.J. Balleray, for the State.

WOLVERTON J.

The defendant appeals from a judgment rendered against him upon conviction of the crime of manslaughter upon an indictment for murder, wherein it is alleged that he killed one J. Henry Miller. The facts will sufficiently appear as the opinion proceeds.

In the course of the trial the state called Ed Rush as a witness who testified, among other things, that in the latter part of May or the first of June preceding he was in Miller's saloon that the deceased objected to Mims playing in his house, and that, as Mims was going out with some friends, he heard him say, "I will kill that son of a _____ some time if he don't let me alone." For the purpose of impeachment the following question was propounded on cross-examination "I will ask you if, in a conversation that occurred in John Basye's office about Wednesday, October 18, 1899, in the presence of John Basye, H.L. Scott, W.D. Blitch, I.N. Davis, and a farm hand of yours, if you did not in that conversation state and say, in conversing about the Mims case, that you were present in Miller's saloon, and that you heard Miller say that, if Mims did not stay out of there, that he would have to kill the son of a _____, or words to that effect?"--to which he answered, "No, sir." He was further interrogated as follows: "Q. Were you in that office at any other time about that time? A. No, sir. Q. You were there for the purpose of settling a bill, were you not? A. Yes, sir." Subsequently the defense called Basye, Blitch, and Davis, whose evidence tended to show that Rush did make the statement imputed to him. John Beggy was called in rebuttal, and testified, substantially, that he lived in Pendleton, was a laborer engaged in farming and railroading, and was working for Rush at that time; that he recollected of being in the town of Helix on the day named in the impeaching question; that he went there with Rush, Basye, and a man from the warehouse, whom he afterwards recognized as Montgomery; that he stayed in Basye's office half an hour, when he went out into the store for about ten minutes, then returned again to the office, where he remained for something like three hours and a half, waiting for the train; and that the men referred to in the question were coming in and going out. He was then asked: "Did you hear Ed Rush, in that conversation, say that he had been down to Miller's saloon, here, and that he had heard Miller say that if the defendant here, Ed Mims, did not stay out of there, he would shoot the son of a _____? Did you hear Mr. Rush say anything like that?"--to which he answered: "I heard him say he heard Mims-- Q. Heard Mims say? A. Heard Mims say that he would kill the son of a _____, Miller, the first chance he would get. That is all I heard then." He further testified that he heard no other conversation in which the language imputed to Rush was used. There was a motion to withdraw the testimony from the jury for the reason, among others, that it did not refer to the same conversation alluded to by the impeaching witnesses, which was denied, and the appellant complains of the ruling. The well-settled rule of law that evidence intended to show that the witness has on other occasions made statements out of court similar to such as he has testified to in the case is not admissible in corroboration, was invoked as fatal to the ruling. But we do not understand that this testimony was introduced for such purpose, but with the view of showing that the witnesses called to impeach Rush were mistaken in their interpretation of his language. It was shown very clearly that Beggy was the farm hand alluded to in the impeaching question put to Rush, which makes him competent to testify respecting the conversation, so as to counteract the statements of the impeaching witnesses.

There was evidence introduced to the effect that the defendant was acting in self-defense when he shot the deceased, and, for the purpose of showing that he had reason for believing and fearing that the deceased would have killed him, if not resisted, or done him great bodily harm, he produced G.F. Stranahan to prove that he saw Miller have a difficulty in his saloon some two or three weeks previous to the encounter with Mims, and that Miller on that occasion armed himself with an ice pick and came out with the evident intention of settling the difficulty. The court refused to allow the testimony to go to the jury, and error is assigned. It was competent to show the reputation or the general character of the deceased as a quarrelsome, vindictive, or dangerous person; but such reputation cannot be established by proving specific acts of violence towards third persons, or single, isolated, or unlawful acts forming no part of the res gestae. Underh.Cr.Ev. § 325; Jenkins v. State, 80 Md. 72, 30 A. 566; Ryan v. State (Tex.Cr.App.) 35 S.W. 288; State v. Peffers, 80 Iowa, 580, 46 N.W. 662; Thomas v. People, 67 N.Y. 218; People v. Druse, 103 N.Y. 655, 8 N.E. 733. The proffered evidence of Stranahan was of a particular act, and therefore obnoxious to the rule.

Thomas Milarkey, a witness for the state, being called in rebuttal, was asked: "Can you tell the jury whether or not he [Miller] was in the habit of arming himself on any occasion when he had any difficulty?"--to which he answered: "I never saw him have any arms at all whatever. I don't think he carried any. I am positive he didn't." The court denied a motion to withdraw the answer, and error is predicated upon the ruling. Some evidence had gone to the jury to the effect that the deceased was in the habit of arming himself whenever he became involved in difficulty. The question was intended to counteract such evidence, and the answer was apparently responsive, so far as the witness' knowledge went. The character of the inquiry involved in some measure the reputation of the deceased as being a dangerous person when in dispute, and the answer had a bearing upon the issue, so there was no error in allowing it to stand.

The state called T.J. Means as a witness, who narrated the circumstances of the encounter which resulted in the death of Miller. On cross-examination he was asked: "As a matter of fact, wasn't Mims as helpless as a child in that fight?"--to which he answered: "I don't think he could fight with Miller." He was then asked: "Did he stand any chance at all to get away from him or to protect himself at all any sooner than he did get away?"--which question the court would not permit him to answer. Later in the trial, Gus Holloway, also an eyewitness to the altercation, was called by the defendant and asked: "Which one of the parties, up to the time that shot was fired, had the advantage in that fight?"--and the court refused to allow the question to be answered. The ground of the objection to both questions was that they called for the opinion of the witness touching a matter about which the jury was as competent to judge as they. The witness Holloway had detailed the facts and circumstances from the inception of the altercation up to the time the fatal shot was fired, and had described minutely the movements and positions of the respective antagonists leading up to the result, which gave the jury equal facilities for judging as to who had the advantage in the quarrel as the witness. The incident was susceptible of accurate and perfect description in detail, and there was no occasion for opinion evidence such as was called for. The jurors were able to determine the question of advantage from the delineation of the attending circumstances, and it was within their peculiar province to do so, unaided by the opinion of the witness. So it was with the question propounded to Means. They were enabled to judge from a delineation of the circumstances attending the encounter up to that particular period of the incident whether Mims had any chance to get away sooner than he did, and the opinion of the witness was incompetent for their further advisement.

One of the counsel for the state in his argument to the jury made use of the following language: "We put Mr. Means upon the stand because we had to, but we don't claim that he told the truth,"--to which objection was taken, and an exception saved. The counsel continued: "Gentlemen of the jury, you have a right to judge as to whose witness he [referring to Means] was, and who he was testifying for;" and, after further objection: "I have a right to call your attention to the strenuous objection of Judge Fee to this statement of mine." The basis of the objection is that the statement of the counsel tended to the impeachment of the state's own witness. There were but two persons who witnessed the altercation...