State v. Nortin

• Court: Supreme Court of Oregon
• Citation: 133 P.2d 252,170 Or. 296
• Parties: STATE <I>v.</I> NORTIN
• Decision Date: 19 January 1943

170 Or. 296

133 P.2d 252

STATE

v. NORTIN

Supreme Court of Oregon.

Argued December 2, 1942.

Affirmed January 19, 1943.

Homicide

1. In prosecution for first degree murder, general form of verdict finding defendant guilty of manslaughter was proper if supported by evidence of either voluntary or involuntary manslaughter.

Indictment and information

2. All degrees of homicide including voluntary and involuntary manslaughter are included in the charge of murder in the first degree.

Homicide

3. In prosecution for first degree murder, where there is substantial evidence of murder in any degree followed by a verdict of guilty of manslaughter, the defendant cannot complain of denial of his motion for a directed verdict.

Homicide

4. In homicide case, irresistible impulse is not available as a complete defense although it may reduce the offense to the grade of manslaughter.

Homicide

5. Every killing is "manslaughter" unless it is justifiable or excusable, or is accompanied by malice or deliberation, when it becomes "murder" in the first or second degree.

Homicide

6. In prosecution for first degree murder, evidence authorized instruction on law of murder in both degrees.

Homicide

7. In first degree murder prosecution, substantial evidence supported conviction of manslaughter.

Witnesses

8. In first degree murder prosecution, where defendant's wife when asked if defendant had not stated, "I shot her. She would not leave me alone" answered that she did not remember, permitting state as impeachment on rebuttal to offer testimony that during an interview, wife informed officer that defendant had made such statement was not error in view of fact that record disclosed that testimony of officer and wife related to identical occasion.

Witnesses

9. In first degree murder prosecution, where defendant's wife during examination testified that she did not, during interview, inform deputy sheriff that defendant had stated "I had to kill the old lady" permitting deputy sheriff on rebuttal to give impeaching testimony that wife had so quoted defendant, was not error where evidence disclosed that there was but one conversation between the wife and impeaching witness and that it was identified in their minds.

Witnesses

10. Counsel who proposed to impeach a witness by showing prior inconsistent statement should recall the occasion to witness and specify the time and place and person or persons present and ask witness if he did not make the specified statement concerning which impeaching witness is expected to testify, and in examining impeaching witness he should identify the occasion in similar manner and inquire if witness to be impeached made the statement in question, setting it forth.

Witnesses

11. Failure to strictly comply with the common and approved practice indicated by statute in impeaching a witness does not constitute error.

Witnesses

12. The statute regarding procedure to be followed in impeaching a witness is a restatement of the common law rule and bears with it the gloss of common law decisions.

Witnesses

13. Where specific occasion in question has been called to attention of witness to be impeached and it clearly appears that such occasion is identified in his mind and he is then asked concerning specific inconsistent statement with which it is proposed later to impeach him, the purpose of statute regarding impeachment has been fulfilled.

Criminal law

14. Where all or substantially all of the evidence tending toward conviction is circumstantial, the court should, upon request, instruct on the law relating to circumstantial evidence, but where there is substantial direct evidence of guilt it is not necessarily reversible error to refuse to instruct on the law of circumstantial evidence.

Criminal law

15. If an instruction regarding circumstantial evidence is given in a case supported by both circumstantial and direct evidence, it would be in the nature of a cautionary instruction, the giving or refusing of which is generally considered to rest in the sound discretion of trial court.

Criminal law

16. It is not necessary to have direct evidence on every material issue in case in order to obviate the necessity for instructing on circumstantial evidence.

Criminal law

17. In first degree murder prosecution resulting in manslaughter conviction, refusal to give requested instruction on circumstantial evidence was not error where defendant testified directly to fact of killing and also to facts which at best showed negligence and at worst disclosed voluntary homicide in course of a quarrel and the bulk of the incriminating evidence came directly from testimony of defendant.

                  See 26 Am. Jur. 5598
                  23 C.J.S., Criminal Law, § 1312
                

Before KELLY, Chief Justice, and BELT, LUSK and BRAND, Associate Justices.

Appeal from Circuit Court, Multnomah County.

MARTIN W. HAWKINS, Judge.

Clarence Nortin was convicted of manslaughter, and he appeals.

AFFIRMED.

Irvin Goodman and Leo Levenson, both of Portland, for appellant.

Thomas B. Handley, Deputy District Attorney, of Portland (James R. Bain, District Attorney, and Dan M. Dibble, Deputy District Attorney, both of Portland, on brief), for respondents.

Clarence Nortin was indicted for murder in the first degree and upon the trial was convicted of manslaughter. He now appeals.

In support of his appeal the defendant assigns as error: (1) The refusal of the trial court to direct a verdict, (2) the reception over defendant's objection on rebuttal of testimony concerning statements alleged to have been made by defendant's wife and offered for the purpose of impeachment, (3) the refusal of the court to give appellant's requested instruction Number 15 on the subject of circumstantial evidence.

1-3. BRAND, J.

We will first consider whether there was substantial evidence to support the verdict. The court fully instructed the jury on the law of murder in the first degree, murder in the second degree, and voluntary and involuntary manslaughter. The jury found the defendant "guilty of manslaughter" without specifying whether voluntary or involuntary. This general form of verdict was proper if supported by evidence of either voluntary or involuntary manslaughter. State v. Setsor, 61 Or. 90, 119 P. 346.

The statute provides:

"In all cases, the defendant may be found guilty of any crime, the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit such crime." O.C.L.A. 26-948.

Under this statute, all degrees of homicide, including voluntary and involuntary manslaughter, are in the eyes of the law included in the charge of murder in the first degree. State v. Ellsworth, 30 Or. 145, 47 P. 199; State v. Setsor, (supra); State v. Farnam, 82 Or. 211, 161 P. 417, Am. Cas. 1918A, 318. If there was substantial evidence of murder in any degree followed by a verdict of guilty of manslaughter the defendant cannot complain of the denial of his motion for a directed verdict. In State v. Sing the defendant was charged with murder in the first degree and was convicted of manslaughter. This court said:

"From the evidence set out above, it will be seen that the charge contained in the indictment is supported by evidence from which the jury could have lawfully convicted the defendant of murder.

"At Section 654, Wharton on Homicide (3 ed.), it is said:

"`And a verdict for a lower degree of homicide will not be set aside on the ground that the evidence does not make out that degree of the crime in terms as defined by the statute, when it would have supported a finding of a higher degree.'

"Voluntary manslaughter is a crime within the crime of murder charged by the indicment. Upon an indictment for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment and guilty of any degree inferior thereto: Or. L., § 1552. Manslaughter is a degree of criminal homicide." State v. Sing, 114 Or. 267, at pp. 283 and 284, 229 P. 921.

4, 5. Again if there was substantial evidence of manslaughter either voluntary or involuntary followed by a general verdict "guilty of manslaughter" the defendant cannot complain. Our statute, so far as relevant here, provides that if any person, in the commission of an unlawful act or a lawful act without due caution or circumspection involuntarily kills another, such person shall be deemed guilty of manslaughter. O.C.L.A. 23-406, L. 1941, Chap. 439, § 1. Our statute also defines voluntary manslaughter as follows:

"If any person shall, without malice express or implied, and without deliberation, upon a sudden heat of passion, caused by a provocation apparently sufficient to make the passion irresistible, voluntarily kill another, such person shall be deemed guilty of manslaughter." O.C.L.A. 23-405.

It appears likely that this section was enacted to make it clear that "irresistible impulse" is not available as a complete defense in this state, although it may reduce the offense to the grade of manslaughter. Manslaughter is not limited to a killing in the sudden heat of passion as defined in the foregoing section, for it is also provided:

"Every other killing of a human being by the act, procurement, or culpable negligence of another, when such killing is not murder in the first or second degree, or is not justifiable or excusable as provided in this chapter, shall be deemed manslaughter." O.C.L.A. 23-410.

As said in State v. Butler:

"But every killing is manslaughter unless it is justifiable or excusable; or is accompanied by malice or deliberation, when it becomes murder in the first or second degree." State v. Butler, 96 Or. 219, at p. 235, 186 P. 55.

In State v. Sing (supra) where the indictment was for murder, and the conviction was of manslaughter, there was no evidence of passion or of irresistible impulse, but the judgment of conviction was affirmed. In the case of State v. Silverman, 148 Or. 298, 36 P. (2d) 342, d...