Daily capital journal. (Salem, Oregon) 1903-1919, 1911-09-30

him, or It may be that the witness
who testifies TO the admissions by
even unintentionally altering a few
of the expressions really used caused
an effect to the statement clearly at
variance with what the defendant
actually did say. On the other hand
| II you can see from the evidence that
the alleged admissions were clearly
and understandingly made by the de-
fendant, that they are precisely iden-
tilted and that the matter is correct
/ ly, properly and accurately reported
| by the witness, you are authorized to
consider such admissions for what
you may deem them to be worth
against the defendant. In reaching
such a result, you must, for the rea-
son already given, proceed with eau
| ton"
The objection was based upon the
contention of counsel for defendant
that there was no testimony in the
record Of any statement of the de-
fendant inconsistent with his inno-
cence, that is, there were no admis-
sions in the case upon which to base
such instructions. This, in effect,
raises the question of materiality of
evidence as to the flight of the ac-
cused after the homicide. The con-
duct of defendant, when an attempt
| Is made to arrest him shortly after
the commission of an offense proper
ly is allowed to be proved for the
/ purpose of showing his criminal in
tent. 1t may be shown by witness or
| by questions put to the accused on
| his ss-eXamination, that he at
tempted flight, or by concealment or
others means attempted to escape ar
rest. circumstance which is to be
considered by the jury, the sole
judges of its weight and sufficiency
and Of the motives prompting the
flight Underhill on Grim Ev., Secs
| III, 11S, 119; State V. Osborne, "a
Or, 2S9. There was evidence against
the defendant upon which to base
this instruction, and we think the
question was fairly submitted to the
jury.
1t is also urged that the court
erred in giving the instruction.: "a
witness false in one part of his tes-
| tlmOny is to be distrusted in Others"
for the reason, 1t Is contended, that
the witness insult be wilfully false in
part of his testimony before he shall
be distrusted in others; this being
the statutory presumption. L. o. L..
Sec 1858, subdiv, 8, provides, THAT a
witness false in one part of his tes-
timony is to be dlstrusted in others"
In Words & Phrases, 1865, it is said
"The word falsely as used in the
statutory provision that If the wit
ness has, in the opinion of the jur-
ors, sworn falsely in any material re-
spect, his testimony is not to be ac-
cepted and acted on without great
caution, Is not the equivalent of
| mistakenly and the omission or in
sertlon of the word 'wlllfully before
the words sworn falsely would not
change the effect of the language in
charge" Getting People V. Righet-
II, 66 Cal, 1884; People " Luchetti,
1l9 Cal, 501.) The court gave the
instruction in the language of the
statute (Simpson V. Miller, 11O Pac.,
495), and also in the language re-
quested by defendants counsel. Sell
dom indeed Is there a case of this
kind tried where there is not con-
flict of testimony. We do not think
this Is an exception, and there was
no error in giving the instruction
1t is further urged that the court
erred in giving the following instruc-
ton, Some testimony has been ad-
mitted to your hearing respecting the
reputation and character of the de-
fendant as a peaceable and law-abid-
ing citizen. This testimony is ad-
mitted for the purpose of strengthen
ing and aiding the presumption of
innocence. The obligations of the
law rest alike on good citizens and
bad ones, and If. after considering all
the evidence under the instructions
OF the court as to the law, you be-
lleNe beyond a reasonable doubt
that the defendant is guilty of the
crime of murder in the second de-
gree, or manslaughter, you will so
declare by your verdict, although
heretofore, the defendant may have
had ever so good a character or rep
utation. 1t is claimed the effect of
this instruction is to take away from
the jury the consideration of the pre-
yious good character and reputation
of the defendant. That particular
portion of the charge to which objec-
ton is made is, THE obligations of
the law rest alike on good citizens
and bad ones, ETC." Counsel sug-
gests that the jury is told in effect
that II 1t believes from the evidence
the defendant is guilty, 1t must con-
Wet him, Notwithstanding he may
have had ever So good a character
or reputation That 1t is in conflict
with the rule that the good charac-
ter of the accused may create rea-
sonable doubt of guilt, but we do not
so understand the purport of this in
struction While it does instruct the
Jury that If 1t believes from the evil
uence beyond reasonable doubt
that the defendant is guilty, it should
so declare by Its verdict, the instruc-
tion does not eliminate the evidence
in regard to good character, but sim
ply charges the jury that whatever
the defendants previous good char
acter or reputation, nevertheless if
all the testimony including that in
regard to good character shows him
to be guilty beyond a reasonable
doubt of the crime charged. the jury
by It's verdict should so find. This
matter in our opinion, was properly
submitted to the jury.
II is also further alleged that the
court erred in instructing the ury
that, IF Eckhart was policeman of |
the city of Salem, he was therefore a