Daily capital journal. (Salem, Oregon) 1903-1919, 1919-07-01
NERLO MURDER CASE
ORDERED TRIED ANEW

In the list Of eases disposed Of aur-
ing the past week BY the supre,ae eeurt
is one Of unusual character and which
brings in Il problem in evidence that is
seldom met with. This is the case of
state vs.. Rose R. Merlo, appealed from
Washington county, George II. Basley,
Judge. The defendant was charged
with man-slaughter, bascd upon The
killing Of her husband, Joe Shsrio, an
Italian truck farmer living near 1ea-
vertOn.
The crime was committed in 1915,
coming as the sequel Of long 5, ries or
quarrels in which drink, baG temper
and jealousy we're prominent. The de
fendant in the course of her testimony,
asserted that il the course Of a spasm
of drunken rage and jealousy nes 1as-
band chased her about the premises,
threatening to kill her; that she finally
took refuge in an upper room of the
house and locked the door against her
husband; that he forced an entrance
Through a window and was ahoatto in
through & window and was Sbcut to in
fliet great bodily injury or to all her
when she secured revolver and shot
him TO death. There was no SyC wit
ness of the deed, AID those Nhl were
about the scene gave conflicting evi-
denee in the attempt to prove that the
husband was not drunk, and that he
defendant herself started The quarrel
However, the eireuit court fcand her
guilty Of maaslaughter, and she appeal
ed from the Judgment
The appeal was based largely upon
the allegation that the prosecution, aft
er bringing in Il witness to support their
ease, sought by leading questions to
impeaeh their own witness and to show
that his character was such that his
testimony was not dependable Judge
Harris, in writing the opinion in the
ease, refers to the evidence Of this wit
ness was not'only incompetent but high
ily preiudicial to the rights Of the de-
fendant, and on this fact he bases his
decision for a reversal Of the lower
court and demanding the case for aew
trial. In this decision Judge Bennett
eoneurs in part,
Another case Of interest in Malion
county where drainage problems fire.
! quently arise, is that of Margaret Reh-
fuss VS.. Geo W. Weeks, appeal from
Marion county, Percy R. Kelly, judge,
Ia this ease the defendant had upon a
portion of his land depression, which
by the central lay of the land drained out
circuitodsly upon the land OF the plain
tiff. The defendant admits that he
deepcned an ancient ditch and by
means of tiliug hastened the Glow of
water from this tract; but the pibiniiff
sought to prove that by such ditch and
thing he had increased the collection of
water upon her land and thereby caused
considerable damage. The Judge Of the
circuit court in charging the iuiy en-
phasi2ed the point that a landowner is
justified in expelling water frcm his
property upon adioming land e ia. so
doing he follows the natural drainage
course. He only become liable for dam.
age when by artificial methods he col
leets water upon his own land and by
an unnatural course discharges the
same upon his neighbor's and. This
opinion is affirmed By Judge Lean who
writes the decision Of the supreme
court
Other eases passed upon are us fol
lows:
William H. 'Hartwig VS.. Johnic '5er-
trude Rushing as Administrative Cf the
estate of G. G. Rushing, deceased, and
Maxine C. Rushing, appellants, pfeal
from Multnomah county. Suit to col
lect money on promissory note 0piaion
by Justice Harris Judge Robert Tuck
er affirmed
State of Oregon ex rel Akcrson,
Cooch and Co., Inc, plaintiff, VS.. 4. M.
Hurlburt, sheriff of Mulonmah county.
An original proceeding in mandhmus
to compel sheriff to execute in favor
of plaintiff a sheriff's deed to certain
property sold by him to plaintiffs s pre-.
deeossor in interest. Writ is allowed in
opi ion by Chief Justice Mebrlo
Ada Graber VS.. Emma Il. Boswell, APP
lBellant; appeal from Douglass couaty.
Suit to foreclosure mortgage upon zeal
estate. Opinion by Justice Benson,
modifying decree of lower court by re-
ducing amount Of decree.
Duncan Lumber company vs. Willipa
Lumber company, appeal from Multno-
nah county. Suit to recover damages
for breach of contract Opinion by jus
tiee Benson modifying decree o. JuGge
lc. L. Gantenbein, by eliminating
amount fixed as interest.
W. T. Wade, appellant, vs. L. J. Mar.
tin, appeal from Multnomah county.
Shit to obtein part payment Of iudg
ment Opinion by Justice Johns. Judge
Robert G. Morrow affirmed.