State v. Zorn

• Decision Date: 21 June 1892
• Citation: 22 Or. 591,30 P. 317
• Parties: STATE v. ZORN.
• Court: Oregon Supreme Court

30 P. 317

22 Or. 591

STATE v. ZORN.

Supreme Court of Oregon

June 21, 1892

Appeal from circuit court, Umatilla county; MORTON D. CLIFFORD Judge.

Frederick Zorn was indicted for murder in the first degree, and convicted. He appeals. Affirmed.

George E. Chamberlain, for appellant.

J.C Leasure, for the State.

LORD J.

The defendant was indicted, tried, and convicted of the crime of murder in the first degree, in shooting and killing his wife Caroline Zorn. A motion for a new trial was filed, but overruled by the court, and the defendant was sentenced to be hanged. There are several assignments of error in the notice of appeal, but those relied upon for a reversal of the judgment relate wholly to instructions excepted to as given by the court, and instructions asked by the defendant and refused by the court. Before, however proceeding to the consideration of these assignments of error, there is a preliminary matter, as regards practice, of considerable importance, which needs to be adverted to. The bill of exceptions discloses affirmatively that no objections were made or exceptions taken to any portion of the charge given by the court to the jury until after the verdict was returned into court, and that there, for the first time, counsel for the defendant asked permission to except to the charge, which the court allowed. It has been the uniform practice of this court to require that exceptions to instructions should be taken at the time of the trial, in order that the judge may have the opportunity, before the jury retires, to correct any error into which he may have fallen. To allow a party to take his chances upon a verdict, upon instructions given without exception, and afterwards, when the verdict is adverse to him, to challenge the correctness of such instructions, would needlessly multiply new trials and reversals. Had he made his objection or taken his exception at the time such instructions were given, the court might have instructed the jury differently, or obviated the objection. This court, in State v. Dodson, 4 Or. 67, adopts the language of the supreme court of California in Morgan v. Hugg, 5 Cal. 409, and holds that "errors cannot be relied on in the appellate court which are not taken advantage of and raised at the trial." Any other, we think, would be extremely inconvenient, and seriously obstruct the administration of justice. It seems, however, that the instructions asked by the defendant and refused by the court involve substantially the same questions as are raised by the instructions given by the court on its own motion, and excepted to, or to which the court permitted the defendant to note his exceptions after verdict. It was evidently for this reason, and to enable us to determine whether any injustice was done the defendant by the instructions given, that the court allowed the exceptions, and certified the same to us, as if they were regularly taken. It is in view of these considerations, and the sacredness of life, that we proceed to their examination. The instructions asked and refused were directed to covering two grounds of defense, namely, insanity as the result of delirium tremens, and drunkenness as affecting the intent of the defendant in committing the act. If the instructions given by the court, to which exceptions were allowed, covered these points, and instructed the jury correctly as to the law, there was no error. It appears from the testimony that immediately prior to the shooting of his wife the defendant had been at Walla Walla, a few miles distant from his home, for some two weeks, drinking much of the time to excess. That on the evening prior to the day when he shot his wife, he was seen by a member of the police force, who testifies that he was "pretty well intoxicated," "very nervous," and seemed to be "off of his base," although the circumstances detailed, and the conversation that occurred, do not indicate any marked peculiarities of conversation or conduct, other than would be likely to take place with any one in his condition. This officer says: "I knew he was drinking, and he seemed to be off his base, and he repeated the same question to me; and I tried to change the conversation, and said, 'Are you going home to-night?' He acted rather strange, and started a conversation about his family, and said he felt good, and that this would be the last drunk; that he was going back to his wife. He turned after I left him on the corner, and went down the street. There was a German lodging house down there, and I asked him, 'Ain't you going home to-night?' and he said, 'Yes.' " Instead of going to bed, he evidently walked home, as the testimony of his stepson is to the effect that he was at his own home at an early hour in the morning, rapping at his window, and asking to be let in. That he went into his wife's room, and remained there some time. That he ate breakfast and dinner, and remained about the house during the day. Up to this time, there is no evidence of any disturbance or quarreling between the defendant and any member of his family. In the evening, at half past 5 or 6 o'clock, his stepson, who was about 17 years of age, testifies that he was in the yard, when he heard three shots, and shortly thereafter, his mother, Caroline Zorn, came out of the house, "in the yard, and right by the header she fell down." That his grandmother and two little sisters led her back to the house. "They led her in. She fell down three or four times going in." And that he went for Mr. Richey, the sheriff, and doctor. That his mother was shot in the breast and the back, and that his grandmother was shot in the left shoulder. There is no testimony in regard to the defendant's shooting his wife or the circumstances under which the shooting was done, except the oral admission of the defendant. Mr. Richey testifies in substance that, when he reached the house, he found "the old woman in the kitchen, lying by the stove;" that Mrs. Zorn "was in the bedroom;" and that Mr. Zorn was "in bed in the front room," and "his white shirt and coat and pants laid on the lounge, and his shoes were under the stand." That "his face was covered with blood, and one pillow was blood, all over." This witness says: "I had a pair of handcuffs with me. I slipped a handcuff onto one of his hands, when he said: 'Don't put that on. I am shot.' I said, 'Where are you shot?' and he said, 'In the mouth.' I asked him who done it, and he said he done it. I asked him who shot the women, and he said he did. I asked him how many times he shot his wife, and he said, 'Twice in the back;' but I found out afterwards he made a mistake. He shot her once in the back and once in the breast." "He told me that he fired two shots at his wife, and one at the old lady." When asked what he had done the shooting for, he stated "he went in the room there, and that they would not let him in, and he kicked the door open and shot them." Sheriff McFarland testifies: "I asked him what he had done the shooting for, and he said they would not let him in, was the reply he made, and then he went on and told me the position he was in when he shot himself." Another witness says: "He just said he kicked the door in and shot them, and then laid himself down in the bed, and he heard some one hollo outside, and he thought some one had come to take him or shoot him, and he placed his revolver in his mouth and shot himself." There are several other witnesses who were present upon the evening of the shooting, after it occurred, who conversed with him in respect to it, before his wife, the old lady, and himself were carried to the hospital at Walla Walla; and all substantially agree to the same statement. Another witness who had a conversation with him afterwards at Walla Walla testifies: "He told me that Friday--that was October 2d, I believe--he saw his wife in Walla Walla, and he wanted her to take him out home with her, and she was to meet him, but failed to do so. So he started to walk out there Saturday morning, and got there about breakfast time, and he took breakfast and went into the bed room, and his wife went with him, and afterwards she went out, and he got up and had dinner, and stayed around until afternoon; and he wanted her to bring him back to town, and she refused to do it, and she went into the house and shut the door in his face, and that made him mad, and he broke the door in, and she said she would make him suffer for it, and he pulled his pistol out and shot her, and she ran out, and her mother ran out, and he shot her; and then he went in and laid down in bed, and got to thinking about it, and concluded to kill himself, and he put the pistol to his mouth and pulled the trigger. That is about all he said." The testimony of a number of the witnesses who were well acquainted with the defendant, and who saw him after the shooting of his wife, is to the effect that the defendant seemed as rational as ever. Mr. Richey testifies: "He seemed to be just about

like he always did, except his face was all blood. After the doctor cleaned him up, he was natural." Dr. Keeler testifies that the defendant was "perfectly rational and normal in all respects, as far as I could see. I would state however, from the odor of the man's breath, I was under the impression he had been drinking. He was not intoxicated at the time." Sheriff McFarland testifies: "Well, the man appeared to be perfectly rational when he was talking to me. I sat down opposite the bed, and gave him a sip of water; and after he got the blood out of his mouth, I think he talked as rational as he ever did talk." The testimony of the stepson, who let the defendant in the house on the morning of his return from Walla Walla, and who saw him around through the day, does not indicate that the...