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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 448 In Banc.
This is an appeal from a judgment of conviction of the crime of manslaughter.
Frank Eugene Hamlin, a truck driver, 49 years of age, resided in Portland, Oregon, with his two sons, George Oscar, 27, and Earl, 25 years old, both of whom were automobile mechanics. William Hamlin, a nephew of Frank Eugene, 40 years of age, resided at Oregon City. On September 15, 1925, these four men assembled their supplies and equipment at the Hamlin home in Portland, loaded the same into a Chevrolet touring car, and, at 7:30 P.M., started for Tillamook. George Hamlin drove the car. Earl sat in the front seat on George's right. Their father sat on the right-hand side of the rear seat, with his nephew, William, on his left. These respective positions were maintained until the trip was suddenly terminated by the unfortunate tragedy involved herein. When they reached a point on the McMinnville-Sheridan highway about two miles southwest of McMinnville, they stopped their car on the right-hand side of the road, about 125 yards from the residence of the defendant, and somewhere between 25 and 40 feet from a gateway opening into a melon patch belonging to James S. Trent, the defendant herein.
The story of the State is, in effect, as follows:
At the point above indicated, the Hamlins stopped their car to answer a call of nature, and Frank Eugene (the father of two of the boys) suggested that they fix the spotlight before starting on. In pursuance thereof they lighted a lantern, which was in use for about ten minutes, or while they were repairing the spotlight. After repairing the light, they *Page 449 again took their seats in the car in the relative positions hereinbefore described. As the car started, however, they heard a slight explosion, which they suspected was a blow-out. They stopped to investigate, and, upon satisfying themselves that the tires were all right, they again started. They had gone but a few feet when there was a loud explosion, and George Oscar Hamlin exclaimed: "I am shot; I am done for," and fell over against his brother Earl. At the same time, their father said: "I am paralyzed." Thereupon, Earl stopped the car, and, at the suggestion of his cousin William, pulled George over, took the driver's seat, turned the car around and drove back to McMinnville, where they carried the wounded men into a hospital. Within thirty minutes after reaching the hospital, George died from the effects of gunshot wounds.
Dr. Cook, who was called into the case, thus describes the wounds:
"Well, there were four wounds, one through the neck, left side, a glancing wound on the left shoulder, and then a wound on either side of the spine just below the shoulder blade."
Dr. Reitzel testified that the wounds that caused the death of George "were wounds through the chest; bullets that entered the back about the fifth or sixth interspace and passed forward and lodged under the skin over about the fourth interspace."
After the men reached the hospital, the car was examined by Deputy Sheriff Mead and others, who discovered twelve buckshot holes in the back of the car toward the right-hand corner, and one shot in the lower left-hand corner of the windshield. When the sheriff and other officers of the county went to *Page 450 the scene of the shooting, the sheriff went to the defendant's home near by and spoke to the defendant, who was sleeping on the front porch, whereupon, according to the defendant's testimony, the following conversation was had:
"Q. And what did he say? A. Well, he come around there in front of the bed where Etter and I was and sat on the banister — on the banister of the porch — and called me and asked if there had been anyone around my watermelon patch that night, and I said I didn't think so.
"Q. Well, now, did you think so at that time? Did you think there had been someone around your watermelon patch that night? A. Yes, I was sure there had been at that time."
The sheriff testified that the defendant and his wife first denied that they had heard any shooting there that night, but that, when, upon his third visit to the house, he informed the defendant that somebody had been shot there that night and that one man was dead and another would die, the defendant immediately responded:
"Well, George, if that be a fact, I did shoot out there tonight. There was some people in my melon patch, or I thought there was."
The sheriff also testified that, after admitting the shooting, the defendant accompanied the officers and showed them the route he had followed from the house to the gate of the melon patch, and pointed out to them the place where he had stood when he fired the two shots.
The defendant claims that, on the night of the shooting, the Hamlins stopped on the highway to steal watermelons. As tending to corroborate his assertion, he points to the fact that, about four weeks after the shooting he found, near the field fence, at *Page 451 a point between the melon patch and McMinnville, a sack containing a few broken melons, a red bandanna handkerchief and a piece of paper bearing the signature of George Hamlin. William and Earl Hamlin, however, testified that none of them were in the melon patch, that they had no melons in the car, and that their only purpose in stopping was as hereinbefore stated. Defendant told the officers, among other things, that, on the night in question, Mrs. John Arp, a near neighbor, seeing the lights of the automobile on the highway near the melon patch, and thinking that somebody was after melons, telephoned him that he "had better watch his melon patch"; that he thereupon dressed, took his single-barreled shotgun, picked up two shells that he thought were loaded with wheat or rice, and started out toward his melon patch in the hope of surprising the trespassers; that, when he got about 50 or 60 yards from a gate opening into the melon patch, he heard it rattle. We will now let the defendant tell his own story, as given from the witness-stand:
"About the time the gate rattled, the car door slammed and slammed hard, and they speeded their motor up, all just that quick (indicating by snapping fingers). Of course it wasn't that quick, but just about as quick as it could be done, and I run up to where I could see and thought I would shoot in the directionof the car and down where I thought I wouldn't hit anyone. I didn't even think about hurting anybody, even if I did shoot them, for I thought it was rice in there.
"Q. Well, what was your purpose in shooting at all there? A. Well, I aimed to scare the boys. I thought they was going to get away, then when I shot the shell it didn't make no racket much. Oh, just a little racket, but an awful long streak of fire from it, and I thought the boys must have spilled the *Page 452 powder and it didn't make any racket. By that time, the car had got down the hill quite a way. The gun I had — I had to pull the cartridge out with my fingers, and I thought, `Shall I shoot again or not?' And I thinks, `I have got them in here this time and they don't know it,' and I thought, `May be I had better shoot again and may be the next will make a little more racket.Then I shot in the direction of the car again."
We take the following excerpt from the bill of exceptions:
"The defendant further testified that he thought the occupants of this car had been trespassing upon his land, and he did not know but that they were Kelly Davidson or some neighbor boys; that he had no intent to shoot at or towards any person, and no intent to do any person any bodily harm whatsoever; that he honestly believed the shells to be loaded with harmless substance, and that he shot solely for the purpose of frightening the trespassers away, and for no other purpose; that, when he fired the second shot he pointed it toward the lower part orback 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."
The defendant was indicted by the grand jury of Yamhill County, Oregon, for murder in the second degree. He entered a plea of not guilty, was tried and convicted of manslaughter, sentenced to imprisonment in the penitentiary for a term of seven years, and fined $500. From the judgment of conviction, he appeals.
AFFIRMED. Does the indictment in this case include a charge of involuntary manslaughter?
Homicide is the slaying of one human being by the act, procurement or omission of another: Commonwealth v. Webster, 5 Cush. (Mass.) 295 (52 Am. Dec. 711).
1 Wharton's Criminal Law (11 ed.), Section 417, says:
"Homicide is divided into the following heads:
"I. Murder.
"II. Manslaughter.
"III. Excusable homicide.
"IV. Justifiable homicide." See, also, Or. L., §§ 1893-1910.
In this state, murder is divided into two degrees. Manslaughter is not a degree of murder, but is usually treated as a degree of homicide. In this jurisdiction, unlike many others, the crime of manslaughter is not divided into degrees. Blackstone defines it as the unlawful killing of another, without malice either express or implied: 4 Blackstone's Commentaries, 190. Again, the Code of Indiana sets out the following definition:
"Whoever unlawfully kills any human being without malice, express or implied, either voluntarily, upon a sudden heat, or involuntarily, but in the commission of some unlawful act, is guilty of manslaughter." 1 Burns' Annotated Indiana Statutes, § 2416.
The Supreme Court of Indiana says that this language is adopted bodily from the common law: Dunville v. State, 188 Ind. 373 (123 N.E. 689). *Page 454
For a further definition of voluntary and involuntary manslaughter, as known to the common law and enacted into statutory law by our Code, see Archbold's Criminal Pleading (24 ed.), p. 875.
We have no common-law crimes in Oregon. However, our Legislative Assembly has denounced as crimes many of the offenses known to the common law. Our Code, at Sections 1897 and 1898, defines voluntary and involuntary manslaughter. Unquestionably the legislature, in enacting these sections, intended to adopt the common-law meaning of the words used therein: Dunville v.State, supra. Under the common law, manslaughter was regarded as a degree of homicide, and a defendant charged with murder, either in the first or second degree, could be convicted of either voluntary or involuntary manslaughter: 2 Russell on Crimes, p. 1805; Archbold's Criminal Pleading, pp. 228, 871; 1 Roscoe's Criminal Evidence, p. 83. The proposition that involuntary manslaughter is included in an indictment for murder has been passed upon in this jurisdiction a number of times, and our court has uniformly adhered to the common-law doctrine that manslaughter, as defined by the above sections, is a degree of homicide: See State v. Grant, 7 Or. 414; State v.Ellsworth, 30 Or. 145 (47 P. 199); State v. Setsor,61 Or. 90 (119 P. 346); State v. Farnam, 82 Or. 211 (161 P. 417, Ann. Cas. 1918A, 318); State v. Clark, 99 Or. 629 (196 P. 360).
In the case of State v. Setsor, supra, the defendant was indicted for the crime of murder in the first degree. He pleaded not guilty, was tried and convicted, the jury returning into court the following verdict: *Page 455
"We, the jury duly impaneled to try the above entitled cause, find the defendant * * guilty of involuntary manslaughter."
On appeal to this court, that verdict was upheld.
In State v. Farnam, supra, the court quoted with approval the following from People v. Pearne, 118 Cal. 154 (50 P. 376):
"It has always been held that, upon an indictment charging murder, a conviction for manslaughter was proper. In other words, when an indictment charges murder, it also charges manslaughter. An indictment laid for murder charges an intentional killing; yet, under the criminal practice and procedure in this state, there is no doubt but that a verdict of involuntary manslaughter would find support in such a pleading. This is so because involuntary manslaughter is the `unlawful killing of a human being,' and such crime is always included in * * murder."
Now, adverting to authorities in other jurisdictions: A leading case is that of State v. Averill, 85 Vt. 115 (81 A. 461, Ann. Cas. 1914B, p. 1005), where the Vermont court, in an illuminating opinion, wrote:
"That both voluntary and involuntary manslaughter are included in the crime of murder, and a person indicted for murder may be convicted of murder or of either species of manslaughter, as the evidence may warrant, at common law, is held in the following cases in this country: Conner v. Commonwealth, 13 Bush (Ky.), 714; Buckner v. Commonwealth, 14 Bush (Ky.), 601; Bush v.Commonwealth, 78 Ky. 268; Powers v. State, 87 Ind. 144;Pigg v. State, 145 Ind. 560 (43 N.E. 309); Watson v.State, 116 Ga. 607 (43 S.E. 32, 21 L.R.A. (N.S.), 1); Thomas v. State, 121 Ga. 331 (49 S.E. 273); In re Somers, 31 Nev. 531 (103 P. 1073, 135 Am. St. Rep. 700, 24 L.R.A. (N.S.), 504)."
In a valuable note to the case, the annotator says: *Page 456
"The rule laid down in the reported case that a person indicted for murder may be convicted of involuntary manslaughter, seems to have the general support of the authorities."
Then follows an extensive list of decisions.
In support of this doctrine, see 12 Stand. Ency. of Proced., pp. 587-591. To the same effect is Wharton on Homicide, § 653; Wharton's Criminal Law, § 675. 31 C.J., pp. 857, 858, announces the rule in the following language:
"Since an indictment for murder includes all the lower grades of felonious homicide, under a common-law form of indictment, a conviction may be had for either of the degrees of murder as defined by statute or of the lower grades of homicide. So upon an indictment charging murder generally a defendant may be found guilty of manslaughter, and, where manslaughter has been divided by statute into degrees, of any of the statutory degrees. * * It is also held that there may be a conviction for negligent homicide, voluntary manslaughter, or involuntary manslaughter. * * Where the indictment is for the second degree, a conviction of manslaughter may be had, including the lower degrees of manslaughter."
So by the great weight of authority, a person indicted for murder may be convicted of any one of the lower degrees of homicide.
The defendant contends that the indictment fails to inform him of the nature of the charge he is compelled to meet as guaranteed by Section 11, Article 1, Oregon Constitution. The indictment informed the defendant that he was charged with the unlawful and felonious killing of George Oscar Hamlin, a human being, by shooting him to death with a gun. Obviously, this information afforded him ample notice of the nature and cause of the accusation against him. He is not in a position to complain that he has been *Page 457 found guilty of a lower degree of homicide than murder. To illustrate: An indictment for murder in the first degree accuses the defendant of deliberate and premeditated malice; yet, under such an indictment, he can be convicted of voluntary manslaughter, of which the element of malice is not an ingredient.
A few cases, among them Bruner v. State, 58 Ind. 159, are cited as authority for the proposition that a conviction of involuntary manslaughter may not be had unless the indictment distinctly charges that degree of the offense. Bruner was not tried upon an indictment for murder, but for manslaughter, and the Supreme Court held that an indictment for voluntary manslaughter would not support a conviction of involuntary manslaughter, and vice versa. See, also, Adams v. State,65 Ind. 565. However, that same court has held in subsequent cases that an indictment for murder is sufficient to sustain convictions for involuntary manslaughter: Powers v. State,87 Ind. 144; Pigg v. State, 145 Ind. 560 (43 N.E. 309).
Another case often cited in support of the doctrine that a conviction of involuntary manslaughter may not be had unless the indictment distinctly charges that degree of the offense isWalters v. Commonwealth, 44 Pa. 135. In that case, the court said:
"When the officers of the commonwealth shall be of opinion that a homicide is but manslaughter, and the degree is doubtful, the statute allows an indictment charging the offense both as voluntary and involuntary, or either. But it is necessary, in order to sustain a conviction for involuntary manslaughter, that it be distinctly charged as such. Since the case ofCommonwealth v. Gable (7 S. R. (Pa.) 423), it must be charged as a misdemeanor, and is therefore not proper to form a count in an indictment for felonious homicide, excepting in the case of an indictment for voluntary manslaughter, where it may be joined by force of the statute." *Page 458
Again, in Commonwealth v. Bilderback, 2 Pars. Eq. Cas. (Pa.) 447, the defendants were indicted for homicide in negligently upsetting a small boat, thereby causing one of the occupants to be drowned. In its disposition of the case, the court held that, under such an indictment, they could not be convicted of involuntary manslaughter, for the reason that that offense was a misdemeanor and there could be no conviction therefor under an indictment charging a felony alone.
While the cases just alluded to are often cited as authority for the contention that an indictment for murder does not include a charge of involuntary manslaughter, we are committed to the doctrine supported by the overwhelming weight of authority, that a valid indictment for murder includes both voluntary and involuntary manslaughter.
Section 1925, Or. L., as amended by Chapter 117, General Laws of Oregon, 1925, reads:
"It shall be unlawful for any person over the age of twelve years, with or without malice, purposely to point or aim any pistol, gun, revolver or other firearm, within range of said firearm, either loaded or empty, at or toward any other person, except in self-defense."
From an elaborate note on "Homicide in the Commission of an Unlawful Act," found in 63 L.R.A., at page 387, we take the following excerpt:
"Where a statute makes it a misdemeanor for any person to present at another any gun, pistol or other firearm, whether loaded or unloaded, and one intentionally points a gun or pistol at another, though without any intention whatever to take life, and by accident it is discharged, producing death, he is guilty of manslaughter committed in the performance of an unlawful act:Barnes v. State, 134 Ala. 36 *Page 459 (32 So. 670); Henderson v. State, 98 Ala. 35 (13 So. 146); State v.Goodley, 9 Houst. (Del.) 484 (33 A. 226); State v. Grote,109 Mo. 345 (19 S.W. 93); Surber v. State, 99 Ind. 71;State v. Tippett, 94 Iowa, 646 (63 N.W. 445); State v.Morrison, 104 Mo. 638 (16 S.W. 492); Ford v. State,71 Neb. 240 (98 N.W. 807, 115 Am. St. Rep. 591)."
In State v. Justus, 11 Or. 178 (8 P. 337, 50 Am. Rep. 470), Mr. Justice LORD, speaking for this court, approved the following doctrine announced in the leading case of State v.Hardie, 47 Iowa, 647 (29 Am. Rep. 496, 2 Am. Crim. Rep. 326):
"If one uses a dangerous and deadly weapon in a careless and reckless manner, whereby another is killed, the party so using the dangerous weapon is guilty of manslaughter, even though no harm in fact is intended."
In State v. Hardie, supra, the revolver used by the defendant was found in the road by one Gantz, defendant's brother-in-law, about five years prior to the happening of the accident. Repeated attempts failed to discharge it or to remove the load. Believing the revolver to be harmless, they laid it away in this condition, and in this condition it remained, no other load having been put into it. On the day of the accident Hardie, the defendant, with the idea of frightening a woman, pointed the gun at her and pulled the trigger, with the result that the revolver was discharged and the woman killed. On trial he was convicted of manslaughter, and on appeal the charge of the court to the jury announcing the principle approved in State v.Justus, supra, was sustained.
In State v. Vance, 17 Iowa, 138, the defendant, learning that some boys were stealing his melons, rushed out to his garden and fired a gun, killing one of the trespassers. The court held, on appeal, that, *Page 460 if the killing was the result of pure accident and there was no purpose to injure, or aim in the direction of, any person, it was excusable; but that, if the gun was discharged recklessly or heedlessly, the act would be at least manslaughter, although the gun was pointed in the direction of the deceased by accident, with no intention to injure.
1 Wharton's Criminal Law (11 ed.), Section 426, defines involuntary manslaughter as follows:
"Involuntary manslaughter, according to the old writers, is where death results unintentionally so far as the defendant is concerned, from an unlawful act on his part, not amounting to felony, or from a lawful act negligently performed. Hence it is involuntary manslaughter where the death of another occurs through the defendant's negligent use of dangerous agencies."
In Harding v. State, 26 Ariz. 334, 225 P. 482, the defendant was a peace officer, and, while attempting to arrest a drunken automobile driver, shot at a tire to disable the car and unintentionally killed the driver. On appeal the Supreme Court held that, in view of Penal Code of 1913, Sections 175, 1046, the defendant was guilty of the crime of involuntary manslaughter.
To the effect that the careless shooting or handling of firearms may be manslaughter, see Reg. v. Weston, 14 Cox C.C. 346; Reg. v. Jones, 12 Cox C.C. 628; State v. Warner,157 Iowa, 111 (137 N.W. 466); 2 Cyclopedia Criminal Law (Brill), § 671, and authorities under note 23; 21 Am. Eng. Ency. of Law (2 ed.), pp. 191, 192.
5 A.L.R. 603, contains a valuable note on homicide by wanton or reckless use of firearms without express intent to inflict injury. At page 610 thereof, the editors say: *Page 461
"In general, every unintentional killing of a human being arising from a wanton or reckless use of firearms, in the absence of intent to discharge the weapon, or in the belief that it is not loaded, and under circumstances not evincing a heart devoid of a sense of social duty, is manslaughter. In some cases the courts have designated the offense as `manslaughter,' without drawing the distinction of the common-law writers between voluntary and involuntary manslaughter (citations)."
For a note supplementing the above, see 23 A.L.R. 1554.
The defendant asserts that the court erred in refusing to give certain instructions requested by him. A case directly in point on this issue is State v. Selby, 73 Or. 378 (144 P. 657), and in its ruling thereon the court said:
"We have examined the instructions that were given. They are lengthy, and properly cover every issue in the case. We find that they were fair to the defendant. When the trial court covers properly every issue in the case with the instructions that are given, it is not error to refuse to give additional charges requested by the parties, although they state the law correctly. The trial judge has a right to charge the jury in his own language, and, if he instructs properly on every issue, he need not give charges requested by the parties."
On this issue, the facts in the above case are identical with the facts in the case before us, and we are satisfied with the holding of the court therein. Moreover, it is the better practice to make the instructions as short and pointed as is consistent with clearness, for "voluminous instructions tend to uncertainty, and lose the jury and the issue": Thatcher v. Quirk, 4 Idaho 267 (38 P. 652). *Page 462
At the request of the prosecution, the court charged the jury with reference to defendant's right to use force for the purpose of regaining possession of stolen property. This instruction was in direct violation of the rule that instructions should be limited to the issue and based on the evidence in the case.
The defendant vigorously contends that the court misstated his theory of the case by instructing the jury that defendant claimed young Hamlin was shot while in the melon patch, and that the court erroneously charged the jury by giving abstract instructions at length upon the right of the defendant to shoot in defense of his property: Or.L., § 1909. The evidence proves beyond peradventure that young Hamlin was on the public highway when he and his father were shot and mortally wounded. Neither the defendant nor any other witness pretends to say that George Oscar Hamlin was engaged in the commission of a crime at the time the defendant with fatal execution pointed and discharged his gun loaded with powder and buckshot in the direction of the moving automobile.
In a number of cases, this court has held that the giving of abstract instructions, although correctly stating the law, is error: Morris v. Perkins, 6 Or. 350. This is so because such instructions tend to confuse the jury by drawing their attention to matters not in issue. As to the treatment of the error, a case directly in point, and in harmony with our view, is that ofDavis v. Commonwealth, 193 Ky. 597 (237 S.W. 24, 23 A.L.R. 1551), where Mr. Chief Justice HURT, of the Kentucky Court of Appeals, in discussing abstract instructions with relation to a given case, held that such an instruction "could only tend *Page 463 to minimize the case of the prosecution," and was harmless.
That a case will not be reversed where it is evident that the instruction complained of as abstract did not bring about an improper verdict, see 2 R.C.L., Appeal and Error, Sections 209, 210, where the editors say:
"This doctrine obviously is founded in common sense."
We have carefully considered all of the assignments of error. From such consideration, we are satisfied that the defendant received a fair and impartial trial, and that this case should be affirmed. It is so ordered. AFFIRMED.
BELT, J., absent.