State v. Erickson

Mr. Justice Eakin

delivered the opinion of the court.

The defendants were jointly indicted, charged with an assault with a dangerous weapon — a rifle — upon one Leonard Walters, and upon trial were found guilty. From a judgment thereon they appeal.

As stated in defendants’ brief, much of which is not disclosed by the bill of exceptions, Walters had purchased some land from defendants, but there had been no trouble between tnem in regard to it. It appears, also, that defendants were using one of Walters’ horses at some farm work, and that Walters, desiring to use it, went to *264 defendants’ home after it. Walters testified that, after they had some conversation as to the further use of the horse by defendants, he started to the corral to get the horse, when Mrs. Erickson presented an automatic rifle about a foot from his face and commanded him to get off the premises; that he threw his arm up struck the gun away as it went off, knocked Mrs. Erickson down, and saw Mr. Erickson jump for the door to get another gun. Walters picked up the rifle and ran toward the door, at the same time pulling his revolver. Mr. Erickson was in the act of putting two shells into the barrel of a shotgun, but did not get it broke down when Walters grabbed it to stop him from shooting. Erickson whirled it around and struck Walters on the side of the head. Walters then shot at his wrist with the revolver, but testified that he did not know whether it hit him or not. Mr. Erickson dropped the gun and ran out of the house, and Walters picked up the two guns and started home. When he was about 20 or 25 rods from the house. Mrs. Erickson, with an oath, called to him to drop the guns, and Mr. Erickson shot at him with another gun. Walters started to run when Mr. Erickson fired eight shots at him.

1. The charge in the indictment is that defendants assaulted Walters with a rifle by shooting at him; the rifle being held in the hands of C. H. Erickson, the defendants acting together. The court instructed the jury that, as the state made no claim for conviction for any act done by defendants prior to the time Walters left the Erickson home with the two guns, they have no right to find a verdict of guilty against defendants for any act which they may have committed prior to that time nor for any shooting done by Mrs. Erickson.

2. The first error urged is that the indictment is fatally defective because it does not allege a wrongful intent. *265 But the statute makes no reference to the intent, and in State v. Godfrey, 17 Or. 300 ( 20 Pac. 625 : 11 Am. St. Rep. 830 ), it is said that no specific intent is necessary to constitute the crime under this statute other than such as is embraced in the act of making an assault with a dangerous weapon. This simply embraces the intentional and unlawful use of a dangerous weapon by means of which an assault is committed with such weapon upon the person of another. This disposes also of the objection to instructions numbers 4 and 7.

3. The exception to the admission of evidence as to the pending purchase of land by Walters from defendants is not well taken. Such evidence could not be prejudicial.

4. But in connection with the statement attributed to Mrs. Erickson, that she would get Walters’ money and the land too, was material as bearing upon the motives of defendants. Several other exceptions are saved to the admission of evidence offered by the state and the exclusion of evidence offered by defendants, but no good purpose can be served by setting it out at length. It is sufficient to say that we find no prejudicial error in the rulings thereon. Exception was taken to remarks made by the district attorney in the argument to the jury, but the bill of exceptions does not disclose that anything that was said by him was not justified by the evidence and within the line of legitimate argument.

5. The first instruction objected to is: “If you find C. H. Erickson guilty, you should also find defendant Bettie Erickson guilty, if you find beyond a reasonable doubt from the evidence she acted with C. EL. Erickson in committing the offense charged.” It is contended that this deprived Mrs. Erickson of the prima facie presumption that “a wife acting with her husband in the commission of a felony, other than murder, acted by coercion and without guilty intent.” Section 788, subd. 31, B. & C. *266 Comp. This question appears to be raised in this court for the first time. No doubt, had the facts justified it, and the attention of the court had been called to it, it would have properly submitted the question to the jury. But the record does not show that the defendants were husband and wife; hence the objection is without merit.

6. The tenth instruction to which exception was taken is to the effect that if the shots were fired at Walters while he was going away from the person firing the shots, and there was no apparent danger of immediate attack from Walters, then nothing that Walters had done prior to such shooting at him would justify the person so shooting. The objection, as stated in the brief, to this instruction is that Walters had unlawfully taken two guns belonging to Erickson, viz., a larceny from a dwelling, and that defendant had a right to retake his property and to use force enough for that purpose. This suggestion is made in this court for the first time. But there is no pretense that Walters was committing a larceny from a dwelling. Whatever may have taken place at that time, it is clear that Walters had disarmed his antagonists, and was retaining their weapons as a matter of safety to himself, and the instruction was not subject to this objection.

7. The first instruction requested by defendant, as given by the court, sufficiently embodies the presumption of innocence that obtains in defendants’ favor, and the refusal of other requests upon that subject was not error.

8. The seventh requested instruction is based on the right of self-defense. The court instructed the jury that, if they found that the defendants shot at Walters while he was running away from them and when he was not assaulting or about to assault them, defendants cannot justify under the claim of self-defense, and there is nothing in the bill of exceptions to indicate that there was *267 any element of self-defense in the shooting by defendants, and it was not error to refuse to give the instruction.

The judgment is affirmed. Affirmed.