The first point made by the appellant’s counsel is, that the court below erred in overruling the motion for the continuance of the cause for the term. The killing took place on the first day of May, 1889; on the thirteenth day of June following the defendant was indicted by the grand jury, and on the seventeenth day of June, 1889, he filed his motion for a postponement of the trial of the cause until the next regular term of the court, for the reason one M. B. Goldstien, a witness whose evidence was alleged to be material, could not then be procured at that term of court. The court declined to postpone the cause for the term, but did postpone it until the fifteenth day of July, 1889, to which time the court adjourned, for the purposes of the trial. The residence of the absent witness was Portland, but he was • the manager of an itinerant theatrical troupe, which was performing in Washington Territory at the time.
The affidavit recites: “I am informed and believe that said witness will swear that said deceased was armed with a pistol, and that he heard the report of the same and saw the flash of the powder therefrom, when the deceased fired the same at me, which occurred at the time of my effort to defend myself from said attack of said deceased; and that the said witness testified before the coroner’s jury as the State’s witness. He was also subpenaed by the State, attended the preliminary examination, but gave ho testimony at that time; he was subpenaed as a witness before the grand jury at the present term of this court, and gave testimony concerning said difficulty,” and that no effort has been made by the State’s counsel to detain said Goldstein as a .witness in said cause. This affidavit is silent as to whether the same facts could not be proven by other witnesses; but on the fifteenth day of July, 1889, the application was renewed and an additional affidavit was
Looking at the entire tenor of those affidavits, we are unable to say the trial court erred in overruling the appellant’s application to postpone the trial. In such cases the trial courts exercise a large discretion. Ordinarily that court can determine better than we can whether or not the ends of justice will be promoted by an adjournment; still, having a supervisory po-wer over the proceedings of the circuit court, if we could see it had abused its discretion to the injury of the appellant, we would not hesitate to reverse. But in this case the fact does not appear. The appellant's application was too weak and uncertain to require the circuit court to allow a continuance. Neither are the allusions in the affidavits to what the newspapers contained sufficient to have required the court give a continuance. If the newspaper articles had been of so serious and inflammatory a character as to actually cause so deep a prejudice in the public mind as to preclude a fair and
It appears from the record that during the progress of the trial the State introduced testimony tending to show that a person was seen in the vicinity of the house where the deceased was stopping on the occasion of his visit to Salem, on the evening of the homicide, and during the trial of said cause the defendant offered himself as a witness in his own behalf, and made no allusion to this evidence so introduced by the State. During the closing argument made on behalf of the State by Hon. Richard Williams, he commented on this circumstance, saying that he did not know and did not ask the jury to believe that the person seen in the vicinity of where the deceased was stopping was the defendant; but that the defendant had been on the witness stand, had an opportunity to deny the same, but didn’t do so. No objection was made to this remark at the time of its utterance, but after the argument was closed, the defendant’s counsel asked the court to instruct the jury as follows: “The statute of this State, in allowing a party to testify in his own behalf in a criminal cause, expressly provides that his failure to do so shall not create any presumption against him, and I caution you against the comments of the counsel for the State, as they had no right to speak of the failure of the defendant to testify on any point or circumstance of the case.” This instruction was refused, apparently for the reason that it was not submitted to the court within the time prescribed by a rule of court. This rule requires all instructions desired by counsel to be submitted to the court before the last argument commences. Conceding without deciding ■that when a defendant in a criminal case offers himself as a witness in his own behalf, is silent as to some fact appearing in the case against him, that no unfavorable inferences can be drawn against him on account of such silence, still I think in this case counsel for appellant did not raise the question at the proper time or in the proper
The court in effect gave the jury the following instruction, to which an exception was duly taken: “That if the jury found from the evidence, beyond a reasonable doubt, that the prisoner was then seeking to meet Ogle to provoke, a quarrel with him, or with intent of having an affray with him, and a difficulty did ensue, he cannot without some proof of a change of conduct or action, excuse the killing of Ogle upon the ground that he believed that Ogle was attempting to draw a weapon with which to assault the defendant.” Counsel for the defendant now
The court further charged the jury: * I need nob admonish this intelligent jury that it is important to the ends of justice, and to secure public respect for our judicial tribunals, that juries agree upon verdicts in cases submitted to them, so that causes may be determined and new trials and delays of justice avoided.” An instruction in relation of the duty of the jury to agree upon a verdict couched in stronger and more imperative language than the one now complain'ed of, was before this court in State v. Saunders, 14 Or. 300, and it was held not to be erroneous. Such instructions announce no principles of law further than to impress upon the minds of jurors the duty of considering the case in all of its bearings fairly and without prejudice, and to endeavor to reach a iust conclusion.
Having reached the conclusion that there is no error in the record, we have no discretion, but must affirm the judgment.