Daily capital journal. (Salem, Oregon) 1903-1919, 1911-11-27

the consent Of the defendant before
put him on the stand" For this
he was rebuked by the court and the
trial proceeded. No particular meth
cd is provided by statute for obtain
ing the consent of a defendant TO his
wife's testifying, and perhaps the
fairer method would be to ask that
consent in the absence Of the Jury.
We are not prepared to say, however,
that counsel has not the right to ask
that consent In open court. In this
/ particular case a former indictment
was set aside because the wife of de-
/ tendant was called and examined be-
fore the grand jury without defen-
dants consent, and counsel evidently
knew that no consent would be given.
Under these circumstances the offer
OF her testimony and the remarks
following it were improper, but we
think the remarks of the court neu-
trallzed any effect that they were
evidently intended to have upon the
mind of the jury.
The state also, upon its direct
case, offered evidence which was re-
ceiyed over defendants objection,
tending to show that deceased was
unarmed at the time of the shooting
and that he was not in the habit of
carrying fire arms and never owned
a pistol. The admission Of such tes-
timony in chief was error but in this
case it was harmless. The shooting
was admitted by defendant and he
relied solely on the plea of self-de-
fense and claimed that deceased
first pointed and snapped a pistol at
him and that his own use of dead
ly weapon was to repel this felonious
attack. He also called large num-
Der Of witnesses to prove that de-
ceased had owned a pistol and was
in the habit of carrying it and had
on several occasions threatened his
life. 1t is evident that this testi-
mony would have been introduced by
him in any event and that the states
introducing testimony in chief which
was property rebuttal in no way COM
PEELED him to adopt a different line
of defense from that which he finally
pursued and which was the only de-
fense he could possibly have inter-
posed. All the testimony objected to
by defendant would have gone in lat
er in any event and the fact that II
was not introduced in its orderly Sc
quence could have made no possible
difference.
Another alleged error Is predlcat-
ed upon the instruction of the court
in regard to evidence of prior threats
by deceased. One of the instructions
given is as follows: There is also
some testimony tending to show for
mer quarrels between the defendant
and deceased also evidence to show
previous threats by the deceased
against the defendant and such
threats or previous quarrels may be
considered by you If you find there
were such in case the circumstances
of the case raise a doubt in regard to
whether or not the defendant acted
in self-defense for the purpose of aid
ing you in determining who was the
agressor in the affray but II you
find that the deceased at the time of
the homicide made no actual overt
demonstration against the defendant
and that the defendant was the as
sailant then even though there were
previous threats and quarrels or bad
Feeling between them that would
constitute no defense" This instruc-
tion is erroneous and was highly pre-
judicial to defendant. 1t requires
that there shall be a doubt in the
mind of the jury as to who was the
agressor before they can consider
evidence of previous threats of the
deceased, whereas the law is, that
evidence Of such threats may itself
be sufficient to raise a reasonable
doubt where none might otherwise
exist 1t is true that some courts
have used language which literally
taken might justify the instruction
given by the learned Judge who pre-
sided on the trial of this case Thus
in State v. Tarter, 26 Or 3S, Mr. JUS
tice Lord says: $50, also, proof OF
threats not communicated Is often
admitted for the purpose of corrob-
borating evidence of those communi-
Gated; and, likewise where 1t is
doubtful from the evidence which
party commenced the affray, com
municated threats admissible to show
who was probably the first assall-
ant" citing Kerr on Homicide, Sec
1896; Wggns " People, SO U. S. 467
II Is submitted however, that the
word doubtful" as used in these
cases is used to indicate that state OF
the case wherein the evidence is con-
Trajectory,
On principle there would seem to
be no valid objection to the rule
which we here announce. Take a
case where a man is killed and there
are no eye witnesses to the ARRAY
The slayer admits the killing but
claims that the deceased made the
first assault. Would not evidence
that deceased has frequently threat
ened to take the life Of the accused
or to do him personal injury; that he