State v. Trent
| Decision Date | 27 September 1927 |
| Citation | 259 P. 893,122 Or. 444 |
| Parties | STATE v. TRENT. |
| Court | Oregon Supreme Court |
In Bank.
Appeal from Circuit Court, Yamhill County; W. M. Ramsey, Judge.
On petition for rehearing. Petition denied.
For original opinion, see 252 P. 975.
Vinton & Tooze and Eugene Marsh, all of McMinnville for petitioner.
The defendant has filed a petition for rehearing. For a complete statement of the facts, which must be read in order properly to understand this opinion, see our original opinion filed February 8, 1927, 252 P. 975. Counsel for defendant assert:
Brief on Rehearing, p. 27.
Had the record disclosed any testimony tending to establish that defense, it should have been submitted to the jury. Hereafter in this opinion we will quote from the instructions of the court.
Every slaying of a human being is unlawful, unless excused or justified by law. Or. L. § 1902.
The defendant expressly repudiates the defense of justifiable homicide as defined by our Code, but asserts that the homicide was excusable.
The fact that the defendant admits that he used a dangerous weapon, i. e., a shotgun loaded with powder and leaden bullets, in the commission of the homicide, of necessity eliminates from our consideration the second paragraph of the foregoing section. A review of the evidence as given by defendant, if believed by the jury, might likewise eliminate paragraph 1. The defendant does not pretend that he was either correcting a child or a servant, or that he was, at the moment he fired the fatal shot, engaged in "any other lawful act by lawful means."
There is no question but what the deceased was in the public highway when he was shot. He and his father, brother, and cousin were on their way from Portland to Tillamook. According to their version, they had stopped on the highway for lawful purposes, and before continuing on their way, they lighted a lantern and repaired the lights of the automobile in which they were traveling. This took them about 10 minutes; and when they resumed their journey the shooting took place. The defendant admitted the shooting, but claimed that he thought his gun was loaded with wheat or rice, and said he fired the shot to scare the men, who he believed had halted on the highway for the purpose of going into his watermelon patch and stealing melons. He testified that a neighbor, seeing the lights on the highway near his house, telephoned him that he "had better watch his melon patch;" that he dressed, took his shotgun, and two shells that he believed were loaded with wheat or rice, and directed his footsteps to his melon patch in the hope of surprising the alleged trespassers; and that, when he got within 50 or 60 yards of a gate opening into the melon patch, he heard the gate rattle. He continues thus:
The following excerpt is taken from the bill of exceptions:
"The defendant further testified * * * that, when he fired the second shot, he pointed it toward the lower part or back wheels of the automobile and the pavement upon which they stood, and not at the upper part of the car, the back of which car was turned toward him."
There is no testimony other than pointed out in this or in the former opinion even tending to show that the deceased was ever on the defendant's premises or in his melon patch. When the defendant fired the fatal shot, the motorcar, with its occupants, had moved some distance on the highway from where it was when he first observed it; and when he pointed his gun in that direction, his act was in direct violation of section 1925, Oregon Laws. which denounces as a misdemeanor the pointing of a gun towards another person, except in self-defense.
A homicide by accident or misfortune, under the Code, is the accidental killing of another when the slayer is performing a lawful act, unaccompanied by any criminal, careless, or reckless conduct, and is frequently called homicide by misadventure. Now, what meaning attaches to the term "misadventure" in its treatment by leading textwriters?
In his work on Homicide, Wharton says:
"To constitute the defense of misadventure in homicide, three requisites exist: First, there must have been no intention to do harm; second, proper precaution must have been taken to avoid mischief; and, third, the act from which death resulted must have been lawful." Section 355.
Then, at section 358, the author repeats the general rule announced by the text-writers and courts, to the effect that, if the homicide was the result of an act of the slayer in unlawfully pointing a firearm at the person killed, the killing is not by misadventure.
Now, what constitutes involuntary manslaughter? 29 C.J. § 134, "Homicide," thus defines this term:
At section 138 of that work, the rule that the accidental killing of another in doing an unlawful act constitutes manslaughter is held to apply to unintentional homicide occasioned by the unlawful shooting, pointing, or handling of firearms.
Again, from 13 R. C. L. "Homicide," § 149, we quote:
"Involuntary manslaughter includes all such killings as result unintentionally from the commission of unlawful nonfelonious acts, or the negligent performance of acts which are not unlawful per se."
To the same effect is 1 Wharton's Criminal Law (11th Ed.) § 426.
2 Bishop on Criminal Law declares it to be manslaughter when the firing of a gun intended simply to frighten another results in death, "or, when one carelessly discharges firearms into a street." See, also, Clark's Criminal Law,§ 76; 21 Am. & Eng. Ency. of Law (2d Ed.) 191, 192; 2 Cyc. Crim. Law, § 671. For additional authorities, see our original opinion.
Clearly, the act of defendant in shooting Hamlin in the back while he was lawfully driving upon the public highway was not a slaying by accident or misfortune while doing a "lawful act by lawful means." Or. L. § 1910.
The defendant asserts that there is a marked difference between excusable homicide and justifiable homicide. As this court held in State v. Gray, 46 Or. 24, 31, 79 P. 53, the terms "justifiable" and "excusable" homicide are often used as synonymous in the books. Again, in his work on Homicide, Wharton says, at section 9, concerning the distinction between excusable and justifiable homicide:
* * *"
The trial court instructed the jury:
"If you find from the evidence, beyond a reasonable doubt, that the deceased, or those with him when he was shot by the defendant, were stealing, or attempting to steal, melons in defendant's melon patch, and that the melons that they stole, or were attempting to steal, were of less value than $35, and...
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State v. Pepper
...by the sense of a civilized community. An act which is malum prohibitum is wrong only because made so by statute." State v. Trent, 122 Or. 444, 476, 259 P. 893 (1927).6 "It is the act of concurrence between the two states, in the exercise of legislative authority, that validates the act and......