State v. Porter

• Decision Date: 31 July 1897
• Citation: 49 P. 964,32 Or. 135
• Parties: STATE v. PORTER.
• Court: Oregon Supreme Court

49 P. 964

32 Or. 135

STATE v. PORTER.

Supreme Court of Oregon

July 31, 1897

Appeal from circuit court, Union county; Robert Eakin, Judge.

Kelsey Porter was convicted of murder in the first degree, and he appeals. Affirmed.

C.E. Cochran, J.M. Carroll, and C.F. Hyde, for appellant.

John L Rand, Dist. Atty., and T.H. Crawford, for the State.

WOLVERTON J.

The defendant was convicted of having committed the crime of murder in the first degree by killing one Joseph Benjamin Mache, whose wife and son, named respectively Mary E. Mache and Benjamin Mache, Jr., he also killed at the same time. The bodies of the latter had each a gunshot wound thereon of a nature to produce death almost instantly, and upon the body of Joseph Benjamin Mache there were found three gunshot wounds and a fracture of the skull, as to which latter there is some uncertainty touching the cause that produced it. Either one of two of the wounds upon the body, or the one upon the head, was sufficient to produce death. One of the questions most strenuously urged here involves the instructions of the court respecting certain statements of the defendant tending to connect him with the commission of the crime with which he was charged. The objection goes to the use made by the court of the term "confession" in connection with such statements. To be clearly understood it is necessary to recite some of the testimony relating thereto. Henry Oliver testified, in substance: That on January 1, 1896, the day of the homicide, he and his brother Charles Oliver, met Mr. Baker and the defendant about six miles from the defendant's place, where the homicide occurred. That Baker said to the witness: "I guess you had better go down to Mr. Porter's place. Porter has done up the Mache family. You and Charlie had better go down there;" and that the witness asked defendant for some directions, to which he replied, "You will find them at the barn." Continuing, the witness further stated: "I went down to Porter's place. I found the sleigh down at the creek. Found Mrs. Mache sitting in the sleigh, with her shoulders turned a little to the right; she being dead. I found Mr. Mache at the right-hand corner of the sleigh, in the creek. He was dead, lying in the water. I found Ben Mache, Jr., next. He was about forty or fifty yards up the slope from the other bodies, where he fell. The imprint looked as if he had fallen upon his back. I found a gun [revolver] by Ben, Jr., with the muzzle down in the snow. After examination, I found three empty shells occupying three chambers of the gun, and one empty chamber and two cartridges in the chambers." On redirect examination the following was elicited: "Q. Did Mr. Porter tell you anything at any time how old man Mache was,--what he was doing at the time he shot him? A. Yes. He talked on the road coming down here about the case, and at one time said he shot the old man Mache. Q. What did he say at that time to you about how Mr. Mache was at the time he killed him? A. He said he saw the old man Mache was shot, and he started there towards the sleigh. I believe he said he started to run down to the sleigh,--towards them,--and the old man jumped out of the sleigh, and run towards him, and he shot him." H.J. Baker testified, in substance, that he saw the defendant on the morning of the 1st, before 9 o'clock. He came to witness' place on horseback; was much excited; had a gun with three cartridges and one empty shell in it. Witness then responded to interrogatories as follows: "Q. You may state to the jury what he said. A. He said he had ruined the Mache family. Q. What else, if anything, did he say then? Go ahead and tell the conversation that occurred at that time,--all the conversation you had with him. A. He said he had killed young Ben Mache, and I said, 'Did you kill the old man?' and he said, 'I did.' I said, 'For God's sake, you didn't kill the old lady, Mrs. Mache?' He said, 'I killed her too.' And I asked why he did that, and he said he got so scared, as soon as he saw them, that when Ben shot at him he shot at Ben, and killed the old woman; and I asked him why he killed the old man, and he said he saw Ben running down the road, and he shot at him and hit the old man. Q. What else did he say? A. After he started for town, he said he was in a hurry to get a doctor. He thought she was only hurt. She was sitting up in the sleigh. I asked why he didn't go and see, and he said he was in a hurry to get the doctor." On cross-examination witness stated that the accused said he fired the shots from the shed, and gave as a reason why he did not give up the gun to witness at once that "he was afraid of being shot by this man Rockwood." Charles Oliver testified as follows: "Q. You may state to the jury what, if anything, he said about the homicide. A. He said so much that I can't remember all of it. He made one remark that after he got down off the barn, and the sleigh had stopped down there at the creek, he went down there to see what was the matter with them, or something to that effect. While there, the old man started at him with his hands up, and he says, 'If you want it, I'll give it to you,' and shot him right there." The defendant, being called as a witness in his own behalf, testified, in substance: "I think it was on Wednesday when the trouble occurred. That morning, after feeding the stock, I went down and shoveled the snow off my

barn. It was just a little bit after I had been at the barn for the purpose of shoveling snow before the Maches came along. Prior to this time we had had some difficulty with reference to some harness which Ben Mache, Jr., and William Rockwood stole from me. When I got back from looking after the harness one day, Mr. Mache and his wife came down through my place. They stopped right close to my stable, and the old man disputed my word, called me a liar, and I told him that I wanted him to keep off my place, and not bother me any more. The Maches and Rockwood would go through there most every day, and this man Rockwood was implicated with these other parties, and was what caused me to get the gun in the first place on account of his being there,--this Rockwood,--for Bob Haynes was telling me about what Rockwood said, that he and Ben Mache was going to set me afoot, and put a bullet hole in me. When I got home, Rockwood came along, and he slipped his hand back on his pistol, and threatened to shoot me. He said, 'God damn you, I have been hunting for you; and I will fix you with my Winchester if you don't run.' That morning of the trouble I climbed upon the stable with my gun. I understood that Rockwood was going to take a gun that morning to raffle it off, and I was afraid of him. I laid my gun upon the ribs beside the rafters. I had not been there very long,--perhaps a minute or two,--when they came. I saw them down below, and they came through, and I picked up my gun, and went out on the west shed,--this shed that is near where they came along. The road passes close to it, and I stood on the shed with my gun in my hand, down by my sides. The old man drove up, and we commenced talking. I said, 'You please quit coming through here. You throw my fence down, and let the stock out.' Says he, 'You lie; you lie,' and swore again, and says: 'This is a public highway through here, and you needn't try to keep us out. We will kill you if you do.' Just then I seen something glitter off to my left side, and I turned to look that way, and I saw it was a pistol right there, and Ben Mache was pointing it right at me, and as I looked round the pistol went off with a bang, and I raised my gun to shoot at the boy, and he struck out on his horse, and run down a little to left as he started. He was in a hurry to get away, and was grabbing at the reins. I think the pistol is what caused the horse to shy; and as the horse ran down the road, running from side to side,--from one side of the road to the other,--I was shooting at the boy, and when the old folks got killed he ran right in line with them, so that in shooting at him I hit the old folks. I made no demonstration of any kind with my gun up to the time Ben Mache shot at me. I was just holding it in my hand. I had no intention of killing the old man and his wife, and they would not have been killed if Ben had not fired those two shots at me first."

Other evidence shows that the body of Ben Mache, Jr., was found 310 feet distant from the shed, and the bodies of Joseph Benjamin and his wife 420 feet from the same point, and that the shooting was done with a Winchester rifle. Three exploded shells were found at the shed, and two within six or eight feet of the sleigh. The court instructed the jury as follows: "Evidence of oral confessions, admissions, or statements of defendant are admissible against him on the trial of a criminal action; but if you believe from the circumstances proven that the defendant may not have clearly expressed his own meaning, or witness misunderstood, such confessions or admissions should be viewed with great caution. In this case, if you believe from the testimony and the circumstances that the confessions or admissions were correctly and understandingly made by the defendant, and that his language is correctly remembered and accurately given by the witness, then such confessions or admissions are entitled to weight, the same as other testimony. The confessions or admissions of a defendant may be given against him on a trial for crime, but such confession is not sufficient alone to warrant conviction without some other proof that the crime has been committed; that is, that the body of the offense--that is, the fact of the killing--must be proven by other evidence."

It is contended that the jury might have been misled by the court's use of the term "...