State v. Tarter

• Decision Date: 28 June 1894
• Parties: STATE v. TARTER.
• Court: Oregon Supreme Court

37 P. 53

26 Or. 38

STATE v. TARTER.

Supreme Court of Oregon

June 28, 1894

Appeal from circuit court, Union county; Morton D. Clifford, Judge.

Daniel Tarter, convicted of manslaughter, appeals. Reversed.

T.H. Crawford and T.C. Hyde, for appellant.

Chas. F. Hyde and J.L. Rand, for the State.

LORD C.J.

The defendant was indicted for the crime of murder in the first degree, and, upon being tried before a jury, was found guilty of the crime of manslaughter, and sentenced to the penitentiary for the period of 12 years. From this judgment the defendant has appealed to this court, assigning numerous errors committed by the court below in admitting testimony in giving certain instructions to the jury, and in refusing to give certain other instructions asked by him. The materiality of several of the alleged errors is not disclosed, and as a consequence they will not be considered. The assignments of error from 16 to 23, inclusive, relate to the refusal of the court to allow proof of threats made by the deceased against the defendant, but which threats were not communicated to him. The record discloses that a witness for the defendant, by the name of Lee, testified on direct examination that the deceased, "something like a month before the shooting, and after he had purchased the pistol found in his room, talked to him about his purpose in getting such pistol." The witness was then asked, "Did you ever hear Bob Tarter make any threats against Dan Tarter?" to which he answered, "Not directly; no sir." Then follow several questions aiming to show that the deceased proposed to the witness to go with him, raise a posse, and hang the defendant and some others, which questions were objected to, when the court addressing counsel, said, "If he ever heard the deceased make any threats against the defendant, directly or indirectly, that he would kill him, let him answer." The counsel then said to the witness, "State if you ever heard him make any threats indirectly;" and, upon objection being made, the court said to the witness "Anything you ever heard him say. Did you ever tell Daniel Tarter about it?" The witness answered: "No, sir." By the court: "And you never heard him make any direct threats?" To which the witness answered, "No, sir; I cannot say it was a direct threat." Thereupon, the court sustained the objection. He was then asked, "State whether or not you ever heard Robert Tarter say anything in the nature of a threat against the life of Daniel Tarter" and again, "State whether or not you ever heard Robert Tarter make any statements showing that he had ill will or malice towards Daniel Tarter." Upon objection, both questions were excluded. Counsel for the defendant then asked the court for permission to ask the witness a leading question, which it refused to grant. The record shows that after the witness testified that he had talked to Robert Tarter, the deceased, a good many times shortly before the shooting, and just after the difficulty of the Tarters with Holstine, he was asked, "Did you have a conversation with him, in which he stated what he had got that pistol for, with reference to Dan Tarter?" and again, "Did you ever have a conversation with him (the deceased), in which he told you what he was carrying that pistol for?" To both of which questions objection was made, and sustained by the court. At this juncture a colloquy was had between counsel and court, but there is nothing therein, that we can see, requiring attention.

There seems to have been an impression with the trial court, as to the admissibility of evidence of threats, that there is a difference between threats directly and those indirectly made against life. Threats are regarded as indicative of intention, and evidence of them is not to be rejected, in proper cases, because they are couched in innuendo, vague boast, or obscure language. But we think it is clear that the trial court excluded what was said in these conversations, wherein it was proposed to show that the deceased had indirectly threatened the life of the defendant on the ground that, if any such threats were made, they were not communicated to the defendant prior to the shooting; and this is the ground upon which the state's attorney mainly rested his argument. But threats are admissible, though they have not been communicated to the defendant, when the evidence leaves the question in doubt as to whether the defendant or the deceased was the aggressor at the time of the encounter. It is true there is some conflict of judicial opinion upon this subject, but the rule, as now established by the later authorities, is thus stated by Mr. Wharton: "When the question is as to what was deceased's attitude at the time of a fatal encounter, recent threats may become relevant to show that this attitude was one hostile to the defendant." Whart.Cr.Law, 1027. Where the circumstances raise a question of self-defense, evidence of uncommunicated threats, recently made, are admissible for the purpose of showing the motive of the deceased, and the nature and character of the assault. So, also, proof of threats not communicated is often admitted for the purpose of corroborating evidence of those communicated; and likewise, where it is doubtful from the evidence which party commenced the affray, communicated threats are admissible to show who was probably the first assailant. Kerr, Hom. 396; Wiggins v. People, 93 U.S. 467. The testimony of defendant, and also of his sister and William Barnard, who were eye-witnesses to the shooting, was to the effect that the deceased...