State v. Smith

• Decision Date: 30 March 1903
• Parties: STATE v. SMITH.
• Court: Oregon Supreme Court

71 P. 973

43 Or. 109

STATE v. SMITH.

Supreme Court of Oregon

March 30, 1903

Appeal from Circuit Court, Multnomah County; M.C. George, Judge.

George Smith was convicted of murder in the first degree, and appeals. Affirmed.

W.T Hume, for appellant.

John Manning, Dist. Atty., for the State.

MOORE C.J.

The defendant, George Smith, having been convicted of the crime of murder in the first degree, alleged to have been committed in Multnomah county, Or., August 22, 1902, by killing one Annie Smith, appeals from the judgment which followed.

At the trial, Frank Snow, a detective, having testified that about 12 o'clock m. of the day of the homicide the defendant was brought as a prisoner to the police station in Portland and that he received some keys from him, was asked by defendant's counsel, "What did he say with reference to those keys when he gave them to you?" An objection to the question on the ground that it was incompetent having been sustained, it is contended that the court erred in not permitting it to be answered. The bill of exceptions shows that the defendant is a colored man, and that the deceased, a white woman, was his wife, and at the time of her death an inmate of a house of ill fame. A witness for the state testified that a few hours before the homicide he saw the defendant exhibit a revolver to another colored man, saying "I will get some white person before long." But the defendant, as a witness in his own behalf, denied that he made the threat so imputed to him, and sought to show, by the question propounded to Snow, that he went to his wife's room for a lawful purpose at the time she was killed. To render declarations made by a party after the commission of an act which is the subject of inquiry admissible in evidence as a part of the res gestae, they must have grown out of and been so intimately connected and contemporaneous with such act as to illustrate its character, affording a mirror which involuntarily reflects the cause, motive, or effect of the particular action. State v. Glass, 5 Or. 73; State v. Anderson, 10 Or. 448; State v. Ching Ling, 16 Or. 419, 18 P. 844; State v Henderson, 24 Or. 100, 32 P. 1030; State v. Brown, 28 Or. 147, 41 P. 1042; State v. Sargent, 32 Or. 110, 49 P. 889. The bill of exceptions does not show what time elapsed between the homicide and the defendant's incarceration, but, as it must have been ample for him to formulate a plan of defense justifying his conduct or mitigating the consequences of his act, the declaration sought to be established was self-serving, and no error was committed in excluding it.

It is maintained that the court erred in refusing to give the jury certain instructions requested by defendant's counsel. Testimony was introduced by defendant tending to prove that one Ed. Potello, alias "Kansas," was keeping the defendant's wife as his mistress; that, a controversy having ensued in consequence of such conduct, Potello assaulted the defendant with a pistol, inflicting a wound upon his head; that Potello had informed others that he intended to kill the defendant, and, such threats having been communicated to the latter prior to the homicide, he sought protection from the chief of police and other officers; that defendant, having secured his wife's trunk, containing some of her clothing, locked it in his room, refusing to deliver it upon demand, and that on the day before the homicide he secured a ticket, intending to go to Astoria. The defendant, as a witness in his own behalf, testified as follows: "On the day of the shooting I went down to my wife's room with the keys to the room where her trunk was, to give her the keys, so she could get the things. I went to her room, and she told me to go away, as there was somebody in there. I asked her to have a drink. Some man's voice said to me, 'Bring up two bottles of wine, you black ***.' I went downstairs, and brought up the drinks. My wife opened the door, and we talked about the keys, and my going away to Astoria. While I was talking to her, I saw a man who I thought was 'Kansas' crouching past by the bureau and get behind the door in a crouching position and come towards me. I thought the man was 'Kansas,' and that he was going to try to kill me. I fired the shot intending to protect myself from Kansas, and as I fired my wife drew back suddenly towards where the man was inside, and the bullet struck her."

The instructions which the court refused to give, so far as deemed applicable to the question involved, are as follows:

"There has been some evidence introduced in behalf of the defense in this case, which, it is claimed by the defendant, tends to prove that one Ed. Potello, otherwise known in the testimony as 'Kansas,' had made threats to inflict bodily harm upon the defendant, and that, in pursuance of such threats, there had been at different times altercations between the defendant and the said 'Kansas,' and that at the time of the shooting testified to in this case the defendant believed that this man 'Kansas' was in the room where the deceased was; and it is claimed by the defendant that, seeing a man in the room with the deceased, he believed that the man was 'Kansas,' and feared that the said 'Kansas' would carry out his threats to inflict great bodily harm upon or to take the life of the defendant, and that believing this, he acted upon the impulse to protect himself and to prevent the said 'Kansas' from inflicting the said harm, and fired the fatal shot with the intention of preventing the said 'Kansas' from assaulting him, and without the intention of shooting the deceased.

"(1) I therefore charge you that if you believe, from the evidence in this case, that Ed. Potello, or, as he is known in the testimony, 'Kansas,' had made threats against the defendant to inflict death or great bodily harm upon him, that the defendant would have had a right to use such reasonable means to protect himself as, under the circumstances, an ordinarily reasonable man would have used,if the person in the room with the deceased had been 'Kansas'--that is, if you believe that the threats testified to were made, and the defendant had reasonable ground to believe that the said threats would be carried out by 'Kansas,' under all the circumstances of the case, an ordinarily reasonable man would have had a right to believe that the person in the room with the deceased was 'Kansas,' and there were such circumstances and surroundings that would lead an ordinary man to believe that he was in danger of being assaulted or of receiving great bodily harm from the person so in the room with the deceased--then I charge you that the defendant had a right to act upon appearances as they looked to him at the time, or as they would have looked to an ordinary man under all the testimony in this case; and if the testimony should show that the defendant was mistaken in the fact that the man in the room with the deceased was 'Kansas,' he would only be responsible for the appearances as they looked to him at the time; and if you have a reasonable doubt from the evidence as to whether or not the defendant believed that the man in the room with the deceased was 'Kansas,' and that the defendant, in fear of the said 'Kansas,' on account of the threats and other circumstances as I have instructed you, fired the fatal shot, intending then and there to protect or defend himself against an anticipated assault, and that inadvertently and without his fault the deceased came in range of his pistol and received the bullet therefrom which caused her death, and if you have a reasonable doubt as to whether or not the defendant intended the said bullet to strike and wound the deceased, then I charge you that the defendant would not be guilty of murder in the first degree, and you must find him not guilty thereof.

"(2) And I further charge you that if you have a reasonable doubt as to whether or not the defendant, acting under fear of receiving death or great bodily harm from the man in the room on account of any circumstances, whether threats heretofore made by 'Kansas' and communicated to the defendant, or by reason of the crouching position or other suspicious movements of the man in the room, he fired the fatal shot upon the sudden impulse, acting under such fear and under such circumstances, and you have a reasonable doubt as to whether or not he intended to shoot or wound the deceased, you will find the defendant not guilty.

"(3) Where threats are made against a man's life, or threats to inflict great bodily harm or personal injury are made by a person whom the defendant, from the circumstances and dealings with such man, has reason to believe that such threats will be carried out, and has full knowledge of the character of such threats...