State v. Rader

• Citation: 94 Or. 432,186 P. 79
• Parties: STATE v. RADER.
• Decision Date: 23 December 1919
• Court: Oregon Supreme Court

186 P. 79

94 Or. 432

STATE v. RADER.

Supreme Court of Oregon

December 23, 1919

In Banc.

Appeal from Circuit Court, Grant County; Dalton H. Biggs, Judge.

Frederick Rader was convicted of manslaughter, and he appeals. Judgment reversed, and new trial granted.

John P. Winter and Robert Maguire, both of Portland (Erret Hicks, of Canyon City, John L. Rand, of Baker, and Winter & Maguire, of Portland, on the brief), for appellant.

James A. Fee, of Pendleton, and George M. Brown, Atty. Gen (Phillip Ashford, of Canyon City, on the brief), for the State.

BURNETT J.

Substantially the facts disclosed by the evidence are these: The defendant is a man about 30 years of age, weighing about 118 pounds. He had ridden on the range after stock since he was a small boy and had been dragged by a horse, injuring him severely and breaking his ribs. His arm had been broken and one of his legs had been fractured in two places. The deceased, McCue was a man described in the testimony as weighing about 200 pounds, well-formed and muscular. The defendant attended to business for his father, who was a stock raiser and owned the premises where the homicide occurred. It was known as the Johnson ranch, and had been leased to a man named Stubblefield, who had assigned the lease or sublet the same to McCue. Contending that the tenant's transfer was void, the senior Rader had been endeavoring to get McCue off the place, and had caused the defendant to serve upon him a notice to quit. No litigation on the subject is revealed by the testimony. In addition to this there was an unsettled account between McCue and Rader respecting the use and occupation of the Johnson place, and some witnesses say that McCue admitted owing a balance to Rader, which he promised to pay, without admitting any certain amount. Some time in the autumn of 1917 he had vacated the Johnson place and taken up his residence in Malheur county. On his way the defendant sought to collect the balance from him, and he promised to pay when he returned. He came back in February, 1918, and brought with him some horses to which he intended to feed some hay left on the Johnson place.

On the day of the homicide the defendant was at what is known as the Wright place, some distance northerly from the scene of the tragedy. A neighbor, Mr. Hale, came along on his way to the town of Long Creek, which was still farther south than the Johnson place, and asked the defendant to accompany him to Long Creek, to which the defendant assented. The latter took with him an automatic pistol in the pocket of his chaps, also a rifle which he carried in a scabbard attached to his saddle. Both Hale and the defendant traveled on horseback. Before he reached the Johnson place the defendant dismounted, took the rifle from its scabbard, and carried it across the saddle in front of him after remounting. He explains this change of its position by saying that he was afraid of one Guy Lunceford, who was in the immediate vicinity and with whom he had had some trouble before. He explains carrying both firearms by saying that it had been his habit for several years while riding in the live stock business, and that it was customary among range riders in that country to carry firearms for the purpose of shooting wolves and other predatory animals, and that he had been riding after stock within the previous day or two.

On arriving at the house on the Johnson place, a one-room cabin described as being 14 by 16 feet in dimensions, he said to Hale, in substance, that he wanted to see McCue for a moment, and went into the house, carrying the rifle on his arm. After a few minutes he reappeared at the door and invited Hale to dismount and come in to warm himself, as the day was very cold. Hale went in, and found the defendant with his rifle still on his arm, and rolling a cigarette. After having been introduced to McCue, the conversation proceeded upon indifferent subjects, without any appearance of anger, until Rader asked McCue, "What are we going to do about this business?" and the latter answered, "I ain't going to do a damn thing about it," took up a pan that was on the stove and slammed it on a bench. At this point Hale, apprehending trouble, left the cabin and mounted his horse. Soon afterward he heard considerable noise as of a struggle in the house, and the defendant called to him for help. Hale at once dismounted, re-entered the house, and found that McCue had the defendant prostrate on the floor, face downward, and was "churning" his head upon the floor. Hale intervened by telling McCue to let him have Rader and he would take him away. He says, in substance, that he was compelled to lift Rader from the floor, grasp him under one arm, and place the other over his shoulder, and that he had dragged him around, and while he was in a half reclining position in Hale's arms they reached the door, when McCue made a dive at Rader and either struck at him or grabbed at him, saying, "You son of a bitch, I will learn you something!" At this juncture Rader, who had said nothing nor made any demonstration since Hale re-entered the house, fired his pistol twice in quick succession. These shots took effect in the abdomen of McCue. Hale found the rifle lying on the floor. It was not fired during the mêlée. Hale released Rader at the discharge of the pistol and started in pursuit of their saddle horses, which had run away. On his return he found McCue lying on the bed in the southeast corner of the room. The dying declaration of McCue indicates that he went outside of the house and returned at once to his bed. In this he is corroborated by the defendant.

The defendant's narration of the affray is to the effect that when he went into the house to see McCue there was no ill feeling manifested and nothing hostile occurred until he asked McCue what he was going to do about the business and the latter replied as stated. He says that he had set his rifle down by a small cupboard in the corner and was looking out of the west window, when suddenly, without warning, McCue leaped upon him and struck him several severe blows, rendering him at least partially unconscious, that he was engaged in beating him when Rader called to Hale for help, and that it was not until McCue had renewed the attack upon him while he was still in Hale's arms that he fired, taking the pistol from his pocket. Rader and Hale immediately procured help and summoned a surgeon, who operated upon the decedent, but the latter died the following day.

The dying declaration of the decedent is the only other evidence about the details of the fatal affray. As narrated by the surgeon, McCue said:

" 'Fritz [meaning the defendant] came in here hunting trouble, with his gun, and I knocked him down trying to get his gun away from him.' Mr. Hale came in--First, I think he said Hale-- He said that 'Hale was going to take him out so he wouldn't bother me.' Fritz began shooting, twice in the house and two or three times outside, he didn't remember, McCue didn't remember, just how many times he shot outside. 'He knocked me down, and then I think there was two shots.' One shot outside knocked him down, and then he shot him through the head and arm. I don't remember just the exact words, but that is as near as I can remember."

Another witness, Charles Lunceford, attributes these words to McCue in his dying declaration:

"He came in and started trouble. I saw he was going to use his gun, and I hit him and knocked him down and got his gun away from him, and would have got his pistol away and made it all right, but the other fellow came in [and had reference to Hale] and said he would take care of him, and he took him and started out with him, and he shot me twice in the stomach, and I started towards him, and outside I fell, and he shot me in the head and arm after I was down."

George Baird and Norman Caverhill give substantially the same account of the declaration.

In addition to the wounds in the abdomen there was another in McCue's right arm, and a fourth through the head from temple to temple. Rader's account of the wound in the head and arm is substantially that, when Hale fled at the beginning of the shooting, the defendant found himself lying on a little platform in front of the door, with McCue bending over him, whereupon he shot upwards from his recumbent position, inflicting the wounds as stated, and that McCue turned around and walked away from the house and called for help, when Rader told him he would help him if he would quit, whereupon McCue returned to the house and laid himself on the bed.

On behalf of the defendant S. J. Cardwell testified to meeting the decedent driving the horses on his return from Malheur county, and further gave evidence as follows: "Q. You may state, Mr. Cardwell, what that conversation that you had with him at that time was. A. Well, perhaps I couldn't state it all, but then I could state a good part of it, anyway. When we met we passed the time of day, and I says, 'You are going back, are you?' 'Yes,' he said, he was coming back, and he said he was coming back over to feed out his hay if it wasn't destroyed. I asked him if he had any pasture, and he said, 'No, that the fence was all down,' and I asked him if he wasn't afraid to go back down there that way--I don't remember whether I said, with his horses, or just asked him if he was afraid to go back down there that way. He said, 'No, that he had come back to fight them sons of bitches the rub,' and he said--I don't know just exactly--I think he said there had been one little gun play made, and he said the trouble of it was that-- He didn't say Fritz; he said that he always brought some son of a bitch with him when he came.

"Q. Did he say anything about making the smoke fly? A. Yes,

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