State v. Trapp

• Decision Date: 12 July 1910
• Citation: 56 Or. 588,109 P. 1094
• Parties: STATE v. TRAPP.
• Court: Oregon Supreme Court

109 P. 1094

56 Or. 588

STATE v. TRAPP.

Supreme Court of Oregon

July 12, 1910

Appeal from Circuit Court, Baker County; William Smith, Judge.

D.R Trapp was convicted of murder in the second degree, and he appeals. Affirmed.

Defendant was indicted for murder in the first degree for shooting and killing one Chris Jasperson in Huntington, Baker county, Or on July 27, 1908.

Defendant was a bartender in the saloon of James Reedy, and the deceased was a bartender in the saloon of O.S. Fraser. At 4:20 o'clock p.m. of that day, defendant, who had been drinking intoxicants, after wrestling with Fraser in a friendly way attempted to scuffle with Jasperson, who told him to quit, that he was not feeling well; and when defendant persisted, Jasperson, in vulgar language, again repulsed him and with his open hand pushed him back. Defendant then went out, returned in about five minutes, and called for a glass of whisky and a beer chaser. Before drinking, however, he passed into the back room, where Jasperson was sitting upon a table, Fraser and another man being present, and exclaimed "Now, you son of a bitch, go through," and shot Jasperson in the eye, and he fell to the floor dead. On the morning of that day, about 6 or 7 o'clock, Squirrel, also a bartender in Frazer's saloon, at his own suggestion loaned to defendant the revolver with which the shooting was done, as defendant was going to the Honky Tonk, a dance hall and saloon at the outskirts of the town. Soon thereafter defendant left it in Hodges' saloon, about a block from Fraser's, with O.J. Paul, the bartender, who says defendant returned in the afternoon some time and got it saying: "Give me that gun, I want to take it back to Slim (Jasperson)."

The testimony shows that defendant had been drinking during the night before and on that day. On the trial he was found guilty of murder in the second degree, and from a judgment thereon he appeals.

Charles F. Hyde and John L. Rand, for appellant.

W.S. Levens, Dist. Atty., for the State.

EAKIN, J. (after stating the facts as above).

There is no controversy as to the killing or how it was done; nor that there was an absence of any serious provocation therefor. But the defense is based wholly upon the contention that defendant was drunk, and most of the numerous assignments of errors relate to rulings of the court in the admission of evidence and the instructions given, relating to the effect of the intoxicants upon defendant, and his mental condition resulting therefrom, which rulings, as defendant insists, were to the effect that if defendant was voluntarily intoxicated, regardless of whether the result was a diseased condition of his mind, rendering him incapable of knowing the difference between right and wrong, nevertheless the jury must find him guilty of murder in the second degree, if they found him guilty at all, and defendant urges that this is reversible error.

There is nothing disclosed in the record, other than defendant's own statements, to indicate that he had been doped, as suggested by counsel, or that he did not know what he was doing. It seems that, although drinking probably to excess, he was going about talking with his friends, wrestling with Fraser, and seeking to scuffle with Jasperson, and when he seems to have taken offense at something said or done in Fraser's saloon, he knew where he had left the gun, went after it, returned, ordered more drinks, and before drinking sought out the individual at whose words or acts he had taken offense, and shot him. There is nothing in this conduct on his part, or noticed by those who saw him, that indicates a diseased mind or inability on his part to distinguish between right and wrong, or that he did not know what he was doing.

As we understand section 1393, B. & C. Comp., drunkenness alone is not insanity, and to constitute it a defense for crime it must result in a diseased condition of the mind as the result of continued drunkenness, such as delirium tremens or other form of insanity. There are many cases holding that mental incapacity, produced by voluntary intoxication, and existing only temporarily at the time of the commission of the criminal act, is no defense to a prosecution therefor. For a full discussion of this subject, see note to Harris v. United States, 36 L.R.A. 465; Upstone v. People, 109 Ill. 169; State v. Hundley, 46 Mo. 414; State v. Thompson, 12 Nev. 140; Fisher v. State, 64 Ind. 435; Gunter v. State, 83 Ala. 96, 3 So. 600; People v. Ferris, 55 Cal. 588; Beck v. State of Georgia, 76 Ga. 452.

In Buckhannon v. Commonwealth, 86 Ky. 110, 5 S.W. 358 it is held that on a prosecution for murder a witness cannot be asked whether defendant, at the time of the killing, had mind enough to know right from wrong, where there was no pretext that he was insane, and his condition arose from his then voluntary drunkenness. And in Aszman v. State, 123 Ind. 347, 24 N.E. 123, 8 L.R.A. 33, it is said that drunkenness is not insanity and does not constitute an unsound mind, unless the derangement which it has caused has become fixed and continued. See, also, Gunter v. State, supra; Flanigan v. People of State of New York, 86 N.Y. 554, 40 Am.Rep. 556; Harris v. United States, 8 App.D.C. 20, 36 L.R.A. 465. So that the fact alone, that one is intoxicated, is not a defense for crime, except that it may be taken into consideration in determining the purpose, motive, or intent with which the act is done, as specified in section 1393, B. & C. Comp.; otherwise it is unavailing, unless it results in delirium tremens or other form of insanity. This has been announced by this court in several cases. In State v. Zorn, 22 Or. 591; 30 P. 317, the trial court instructed the jury that voluntary intoxication "does not render the act less criminal, and in this sense, I charge you, is not available as a defense; but upon the question whether the act was done with deliberation and premeditation, * * * it is proper to be considered by you * * * in determining the degree of guilt." Mr. Justice Lord, in passing on that instruction, says: "All the authorities agree that drunkenness is no excuse for crime. But where * * * statutes * * * make deliberation and premeditation ingredients of the crime of murder in the first degree, the question of intent becomes a material fact, and evidence of intoxication is admissible and proper to be taken into consideration by the jury in determining the question as to premeditation and deliberation in murder of the first degree. The defendant's intoxication is submitted to the jury simply for the purpose of showing a want of premeditation." In State v. Hansen, 25 Or. 391, 35 P. 976, 36 P. 296, Mr. Justice Moore cites with approval from State v. Coleman, 27 La.Ann. 691: "Drunkenness is no excuse for a crime, and any state of mind resulting...