Eldred v. Burns , 182 Or. 394 ( 1947 )

The reversal of the judgment in this case is not justified and does not square with my sense of justice. It is conceded that Blackwolf shot the plaintiff. Why did he shoot him? In the answer to the amended complaint, various reasons are assigned, viz: (1) Plaintiff was a trespasser; (2) Blackwolf shot in defense of property and person; (3) Blackwolf accidentally shot the plaintiff. During the course of the trial, however, the defense of property was withdrawn. Blackwolf held to the theory that the shooting was accidental, but counsel for appellants very properly conceded that the sole issue was self-defense. The contention of Blackwolf that the shooting was accidental is untenable as a matter of law. Statev. Trent, 122 Or. 444, 252 P. 975. If Blackwolf was not justified in shooting in self-defense, he was engaged in an unlawful act when he pointed the revolver in the general direction of plaintiff and is presumed to have intended the natural consequences of such unlawful act. § 25-104, O.C.L.A. Nor did the theory of defense of property have any support in law. Hence, appellants were forced to make a last-ditch stand based solely on self-defense. Notwithstanding the single issue involved, it would seem from the opinion of the court that the case was really to determine whether the plaintiff was a trespasser and whether some federal rule or regulation had been violated by members of the United States Coast Guard. I respectfully submit that the vital issue is whether Blackwolf, at time of shooting the plaintiff, had reasonable grounds to believe that it was necessary for him so to act in order to avoid imminent danger to his life or of great bodily harm. Who was the aggressor? Was it the plaintiff? Or was it Blackwolf? These are the vital questions in this case.

Before considering the assignment of error on which the reversal is based, it is well to review briefly the testimony of Blackwolf concerning the shooting. It is indeed, a preposterous story.

Blackwolf testified on direct testimony:

"When I saw the gun I pulled my gun from the scabbard in this position (indicating). I shot, not meaning to hit anybody, and aiming it as a warning shot to halt him. At the report of the first shot the two men in the lead started and ran up the driveway south towards the St. Helens Road.

"As they crossed the railroad tracks, one of the two gentlemen knelt down as though he was trying to shove something under the end of the planks of the driveway.

"I then turned to the two (Coast Guardsmen) in the rear, which was starting to shuffle towards me. I called to them to stop. They didn't stop. I lowered the muzzle of my gun and shot about six feet ahead of them in the ground."

On cross examination:

"Q. I thought you demonstrated here just a moment ago that you fired the first shot with the pistol in the air like that (illustrating).

"A. Yes, sir; in this position (illustrating).

"Q. In that position. And so you fired in the air; is that correct?

"A. Yes, sir.

"Q. Now, what happened when you fired that shot in the air?

"A. The two in the lead started and ran, ____

* * *

"Q. Did one of them spin around?

"A. No sir.

"Q. And they just turned and ran?

"A. Just turned and went, yes.

* * *

"Q. What happened to the two men that were in the rear?

"A. When I turned to them in the rear they were shuffling toward me, starting to come toward me.

"Q. They didn't stop at the first shot?

"A. No.

"Q. And then whom were you watching at that time?

"A. I was watching the two that was in front, watching the man who stooped down as though he was shoving something under the end of the planks.

* * *

"Q. All right. And they ran up there 75 feet, and then you say you watched one of them kneel down and (steal) something under the railroad track?

"A. Yes, he knelt down as though he was shoving something under the driveway.

"Q. Now, when you looked back where were the two Coast Guardsmen?

"A. They weren't standing there. They were starting to walk towards me.

* * *

"Q. And then what did you do?

"A. I called to them to stop.

* * *

"Q. What happened next?

"A. They didn't stop, and I lowered the muzzle of my gun and shot in the ground about six feet ahead of them.

* * *

"Q. You say you could fire two shots?

"A. I did fire two shots.

* * *

"Q. Mr. Blackwolf, you are not now saying that the second bullet that you fired struck Claude Eldred, are you?

"A. The second bullet was back towards the two in the rear. I don't know which one the bullet was. I don't unless it hit something and bounced back and hit him.

"Q. Bounced back and hit Claude Eldred?

"A. That is the only way I know the second bullet could have hit him.

* * *

"Q. Do you think the second bullet did hit him?

"A. I say if it did. I say if it did it bounced back and hit him. That is the only way the second bullet could have hit, I say, if it bounced back and hit him.

* * *

"Q. Well, Mr. Blackwolf, you positively know that Mr. Eldred was not there when you fired the second shot. Isn't that correct?

"A. Yes, sir; he wasn't there."

The testimony of Blackwolf concerning the shooting is repudiated by his own counsel, as in the brief of appellants it is said: "Blackwolf fired twice, the first shot hitting Eldred'sright arm." Blackwolf, it will be remembered, says he fired first in the air. All witnesses, except Blackwolf, testified that plaintiff had no gun. All witnesses, except Blackwolf, testified that as the plaintiff approached Blackwolf, he kept his hands in his pockets and said nothing. When plaintiff was taken to the hospital, it was necessary to cut the pocket away from his right hand. If, as Blackwolf says, plaintiff had a gun in his hand, how did he put his hand in his pocket after having been shot? In view of the shattering of the humerus bone by this heavy caliber revolver, it would have been a physical impossibility for plaintiff to have put his right hand in his pocket.

Blackwolf testified that after the first shot, plaintiff and his companion turned and ran toward the railroad track, about 75 feet away, and that "one of the two gentlemen knelt down as though he was trying to shove something under the end of the planks of the driveway." When the police came to investigate the shooting, Blackwolf never took them to show where he thought a gun was planted. He never looked for the gun. He did not believe any gun was put under a plank; otherwise, he would have looked for it.

I concede that there is sufficient evidence to justify submission to the jury of the issue of self-defense, but it is of such flimsy character — and the testimony of Blackwolf, in many particulars, is so unreasonable — that it challenges the credulity of any reasonable-minded person. It is not strange that the jury refused to believe Blackwolf.

I am unable to agree that the judgment should be reversed because of the giving of the following instruction: "The question as to whether or not plaintiff was a trespasser on the Kingsley Lumber Company is withdrawn from your consideration and forms no issue to be considered or determined by you, because from theevidence here and as a matter of law the court instructs you thatthe plaintiff was not a trespasser upon the premises of theKingsley Lumber Company at the time alleged in the complaint." To this instruction, appellants took the following exception:

"These defendants except to the instruction of the Court that in this case the plaintiff was not a trespasser upon the property of the Kingsley Lumber Company, on the ground, first, that the evidence shows that he was a trespasser, second, that the regulations upon which we understand the Court relies apply only to waterfront facilities which are defined as docks, piers, wharves, and structures thereon or contiguous thereto, and third, we except to it on the ground that if the Court was correct in so instructing the Court should have gone further and instructed the jury that the fact that plaintiff was not a trespasser does not in any way excuse any wrongful acts that the evidence shows or might show that the plaintiff did."

The above instruction is subject to criticism in that it tends to divert the attention of the jury from the vital issue of self-defense, but it was not prejudicial to appellants. Furthermore, appellants are in no position to complain.

In view of the withdrawal of the defense of property, what difference did it make whether plaintiff was a trespasser so far as the issue of self-defense is concerned? If he was a trespasser — and I think he was not — Blackwolf would not by reason thereof be justified in shooting him. The law does not countenance the use of a deadly weapon for such purpose. State v. Bartmess,33 Or. 110, 54 P. 167; Sherrill v. Naylor, 29 Ala. App. 103,193 So. 182; Newcome v. Russell, 133 Ky. 29, 118 S.W. 305, 22 L.R.A. (N.S.) 724 and annotation; Newman v. Southern KraftCorporation, (La.), 197 So. 197; Schmitt v. State,57 Okla. Crim. 102, 47 P.2d 199; Fore v. Commonwealth, 291 Ky. 34,163 S.W.2d 214. See also 25 A.L.R. 525-560, annotation. Regardless of the legal status of plaintiff, the real question is whether he did anything to cause Blackwolf to have reasonable grounds for believing that he was in imminent danger of his life or of great bodily harm. What if he was a trespasser, would that fact have any material effect on the mind of Blackwolf in causing him to believe that he was in such danger? Would any juror of ordinary intelligence infer from the instruction given that plaintiff was authorized to become an aggressor? The court, in its instructions, fully and accurately covered the law of self-defense, and there were no exceptions taken thereto. The court instructed, among other things, that in determining the plea of self-defense, the "jury has a right and it is their duty to take into consideration all the facts and circumstances inevidence." Appellants' rights were not substantially affected by the instruction relative to trespass. It is highly improbable that the jury in reaching its verdict took into consideration the many niceties of law relative to trespass which the court has stressed in its opinion.

I am not unmindful of the well established rule that any evidence tending to show a hostile state of mind of the plaintiff would be admissible where self-defense is involved. It is more probable that a person having a hostile mind would be an aggressor than one entertaining a friendly feeling. Therefore, evidence of threats indicating ill-will is admissible whether or not communicated to the person charged with assault and battery. In the instant case, however, there is absolutely no evidence that plaintiff ever made any threats against Blackwolf. There is no charge of conspiracy. Whatever threats, if any, made by Piel or Gill — not acquiesced in by plaintiff — are not admissible against the latter where self-defense is in issue. State v.Quen, 48 Or. 347, 86 P. 791.

Even if plaintiff was a trespasser, does that fact indicate such a hostile state of mind that a jury could reasonably infer therefrom that he was an aggressor? There has been no authority cited, and none has been found, holding that the question of trespass is relevant in a case where the sole issue is self-defense.

People v. Doud, 223 Mich. 120, 193 N.W. 884, 32 A.L.R. 1535, strongly supports the contention that the instruction given, and that requested by appellants, pertaining to the question of trespass was foreign to the issue. In this case, Doud was charged with assault with a deadly weapon. A controversy arose over the dividing line between the defendant's land and land owned by the state of Michigan. The state park superintendent sent men on the premises to erect a fence upon what he claimed to be the true line. The defendant ordered the men off and threatened to shoot one Davenport if he did not get off the land claimed by the defendant. At the trial, defendant wanted to show, as justification of his acts, where the true line of the property was and that the fence builders were trespassers. The trial judge declined to entertain the proposed issue. On appeal, this ruling was urged as error. The court, refusing to sustain such contention, said: "Suppose the fence builders were clearly shown to have been trespassers, what effect would that fact have had on the real issues? None. No man may, in defense of his mere land against trespassers, assault the invaders with a dangerous weapon. The law forbids such a menacing of human life for so trivial a cause." See also Lamb v. Stone, 95 Wis. 254,70 N.W. 72.

If plaintiff was a trespasser and his trespass had been accompanied by an act of violence causing Blackwolf to have had reasonable apprehension that he was in imminent danger of his life or great bodily harm, the justification for the shooting of the plaintiff would be based on defense of Blackwolf's person and not on defense of the property which he was guarding. 4 Am. Jur., Assault and Battery, §§ 63 and 71.

Appellants complain in their exception to the instruction given that, if the same was correct, the court should have gone further and instructed the jury that "the fact that plaintiff was not a trespasser does not in any way excuse any wrongful acts that the evidence shows, or might show, that the plaintiff did." However, appellants requested the court to instruct the jury that the plaintiff was a trespasser as a matter of law, without any limitation or qualification thereof. If the instruction requested by appellants had been given, a juror might well have inquired, "Are we to infer that, if plaintiff was a trespasser, Blackwolf had the right to shoot him?" Obviously, it would have been the duty of the court to have instructed, as a matter of law, that the mere fact that plaintiff was a trespasser would not of itself be a justification to shoot for the purpose of ejecting him from the premises. As before stated, appellants are in no position to complain.

In my opinion, Yeoman and Boynton, as members of the United States Coast Guard, had the right to go upon the Kingsley Lumber Company property to make an investigation concerning the attack on Piel who was a member of the United States Merchant Marine. The evidence is uncontradicted that these two Coast Guardsmen requested the aid of the plaintiff in making this investigation. There is nothing improbable or unreasonable about the testimony of these disinterested witnesses, and the court should give full credence to the same. Notices were posted on the Kingsley property warning people not to trespass thereon, "By Order of the United States Coast Guard". It seems ridiculous to me that the United States Coast Guard, having such authority, would not also have authority to go upon such premises to investigate a matter of this kind. It was the duty of the Coast Guard to administer the rules and regulations to which attention has been directed by the court, but these rules and regulations do not purport to prohibit the United States Coast Guard from making an investigation concerning a matter involving the welfare of the United States Merchant Marine, engaged as it was in the important work of transporting war materials.

The regulations, assuming that they apply to the Coast Guard, did not prohibit Yeoman and Boynton from going on this waterfront property. Under this Code of Federal Regulations, Title 33, Chapter I, Part 7, 9 F.R. 3461), the term, "waterfront facilities" is defined to include "* * all piers, wharves, docks, or similar structures to which vessels may be secured, buildings on such structures or contiguous to them * *." It is true that there was no pier, wharf, dock, or similar structure on the Kingsley property, but it had facilities for the moorage of barges, and barges were occasionally loaded there. The Kingsley property was "contiguous" to property having "waterfront facilities". It will be recalled that the Kingsley property was adjacent to the dock of the West Oregon Terminal Company where the St. Cloud Victory was moored. In my opinion, the term "contiguous" was used in the regulation in a broader sense than that insisted upon by appellants. To give the term too narrow or strict a meaning would defeat the purpose of the regulation. The word "contiguous", as thus used, means "but also near, though not in contact; neighboring; * *." Webster's New International Dictionary (2nd. ed., unabridged). To the same effect, see Brewer v. Heine,56 Ariz. 160, 106 P.2d 495; State ex rel. Grays Harbor Boom Co.v. Sup'r. Ct., 57 Wash. 698, 106 P. 481; Mitchell v. Melts,220 N.C. 793, 18 S.E.2d 406; Northern Pacific R. Co. v.Douglas County, 145 Wis. 288, 130 N.W. 246.

George A. Kingsley, Manager and Vice-President of the company, testified that the property in question was "waterfront property" and had loading facilities for barges. He also testified that since Pearl Harbor this waterfront property had been taken over from the Army and was under the jurisdiction of the Coast Guard for the purpose of guarding it "particularly for fire and possibly sabotage, because we were in a very vulnerable position, being right across from the Oregon shipyards."

Yeoman testified that it was their duty to "* * * patrol the docks, there, and see that there wasn't anybody there that shouldn't be there, and look out for fires and any sabotage." On cross-examination, he was asked if he did not have instructions not to leave the West Oregon Lumber Company property and "go to some other place." In response to this question, he answered: "We were supposed to find out anything happening like that, report it to the base, and we just figured that something like that should be reported, and we should investigate it."

"Q. You mean that anything that happens around Linnton or Portland that you hear about, you are supposed to investigate?

"A. Anything on the front.

* * *

"Q. No matter how far away it is?

"A. Well, I wouldn't go down there a couple of miles, no."

Boynton testified that it was his duty to guard and patrol the waterfront docks, and that he had instructions from his commanding officer that he "* * * could go any place on the waterfront." The court in its opinion says that these Coast Guardsmen had only the authority to report such matters to the base. How could they make an intelligent report, if they had no authority to make an investigation?

The court speaks of the alleged trespass of plaintiff and the Coast Guardsmen as a matter of "agression". What does the record disclose? There is evidence showing that seamen often took the short-cut route to their boats. Yeoman testified:

"Q. Well, I see. Well, what did the Burns guardsmen do at the gate?

"A. Well, they stopped everybody, and if they had any business there they would leave them in.

* * *

"Q. And they have a little office there, or guardhouse?

"A. Yes.

"Q. And when you would go in there would they stop you?

"A. No.

"Q. That is, if you had a uniform on?

"A. That is right.

"Q. But what about the merchant seamen?

"A. I never seen any of them come in through there. I was never at the gate when they came in.

* * *

"Q. And what would they say when they stopped them?

"A. Well, they would ask them for their identification, where they was going, and what boat they were on.

"Q. And so the first thing they would do was ask for their identification, and would they require them to show it?

"A. The building is well lit up, too, with lights in it and out in front.

"Q. Then they would ask them where they were going?

"A. Yes.

"Q. And what boat they were on?

"A. Yes.

* * *

"Q. And then if they answered they were on the boat down here, I suppose they would let them go by if they had the proper identification?

"A. That is right.

"Q. And that was the Burns guards?

"A. Yes."

The evidence is uncontradicted that plaintiff and his companions exhibited their identification cards and "Ship's Passes" at the gate when challenged by the guards, yet it is argued in effect that Blackwolf did not know who these seamen were when they came back to investigate the shooting. Under this state of the record, what difference did it make to Blackwolf concerning the legal status of the plaintiff?

It is stated in the opinion of the court that Yeoman stated positively that the Coast Guardsmen had no authority to make an arrest. Yeoman was asked: "Were your duties to arrest anybody that had a fight?" He answered: "We could hold them." If he had the right to take such persons into custody, he had the right to arrest them, notwithstanding Yeoman's legal deductions to the contrary. I agree, however, that the Coast Guardsmen and plaintiff went on the premises to investigate and not necessarily to make an arrest.

Error is assigned on the admission in evidence of a United States Coast Guard identification card and a "Ship's Pass" which were in the possession of the plaintiff and his companion at the time in question. I think the jury was entitled to be advised as to the identity of the plaintiff and his companions and the reason for their being on the premises while en route to their ship. In my opinion, no error was committed in the reception of such evidence.

In my opinion, no error was committed in rejecting the following Offer of Proof by witness Harleigh Glass, an employee of the Burns Detective Agency, who worked as a watchman at the Tidewater Oil Company office:

"* * that (Glass) left there about 11:30 P.M., when three young men, whom he would describe sufficiently for identification, to identify them as the plaintiff Eldred and his two companions, went to the Tidewater office, and a few minutes later they came out, and when they reached the road junction with the Kingsley road, `they all three stopped and hollered and kept hollering all the time I was there, "Come up, you dirty son of a bitch, and bring your gun with you. Come up and fight like a man. Bring your gun and we will break it off in you," and other remarks of a similar nature. They were still yelling when my bus came along and picked me up. I was about 35 or 40 feet from them. I did not know they were yelling at our guard at Kingsley, but believe they were within hearing distance from the Kingsley office if anyone had been outside the office. I knew nothing of any trouble having taken place at Kingsley's, but thought they were scrapping with some of their own men who were out of my sight.'"

Appellants did not call the witness, Glass, and therefore there was no opportunity for plaintiff to cross-examine him, but the failure to produce the witness was waived by counsel for the plaintiff. Columbia R.I. Co. v. Alameda L. Co., 87 Or. 277,168 P. 64, 440. Plaintiff objected to the Offer of Proof on the ground that the threats and vile language therein referred to were not heard by Blackwolf and that there was no identification of the plaintiff as the person who made such threats or used the vile language. In reference to this objection, counsel for appellants stated: "I would say that I am not certain that all three of them did the yelling, but they were all together and were all doing some yelling." It was not contended that Blackwolf heard the threats or the profanity. Counsel for appellants stated that the Offer of Proof was made "to show the attitude of these three boys, and particularly the attitude of plaintiff."

It is not charged nor is there any evidence tending to show that plaintiff and his two companions were conspiring or acting together for the purpose of injuring the defendant Blackwolf. Therefore, any declaration of Piel would not be admissible against the plaintiff, unless the declaration made in the presence of the plaintiff was of such nature as to call for a reply from him. State v. Quen, supra; State v. Weaver,165 Mo. 1, 65 S.W. 308. In the absence of conspiracy, whatever Piel said, if anything, about going home and getting a gun would not tend to show that plaintiff had a hostile state of mind. However, if plaintiff urged Piel to go home and get his gun and to come back and "shoot it out", that evidence would clearly be admissible where self-defense is involved, as it would be relevant to the question as to who was the aggressor. Furthermore, if plaintiff made threats against Blackwolf, even though uncommunicated to the latter, evidence of such threats would be admissible to show a hostile state of mind. State v.Rader, 94 Or. 432, 186 P. 79; State v. Doris, 51 Or. 136,94 P. 44, 16 L.R.A. (N.S.) 66; State v. Thompson, 49 Or. 46,88 P. 583; State v. Tarter, 26 Or. 38, 37 P. 53.

Eliminating the second Offer of Proof, there is no evidence that the plaintiff ever made any threats against Blackwolf or indulged in any profanity on the occasion of the altercation between Blackwolf and Piel. There is no identification of the plaintiff in the Offer made by counsel for appellants. The general statement that the witness would "describe sufficiently for identification" is a mere conclusion and will not suffice.Prestbye v. Kliphardt, 113 Or. 59, 231 P. 187. The Offer should contain the specific evidence upon which the claim of identification is based. How was the plaintiff dressed? How did the witness distinguish the plaintiff from his two companions? Did the witness hear the plaintiff make the threats or use profane language? These are questions not covered in the Offer, and we think the court did not err in rejecting it. I apprehend that counsel for appellants in making the Offer of Proof made it as specific as the evidence justified.

As said in Columbia R.I. Co. v. Alameda L. Co., supra:

"An offer of proof should state facts rather than conclusions. Its language should be not vague, but distinct; not general, but specific. It is not sufficient that it state the ultimate facts in language appropriate to a pleading; the evidentiary facts must be set out." — citing numerous authorities in support thereof.

In 53 Am. Jur., Trial, § 102, the rule is thus stated:

"Evidence must be proffered in correct form. The party making the offer must state clearly what he intends to prove. Offers of proof must be offers of relevant proof, specific, not so broad as to embrace irrelevant and immaterial matter, and must be made in good faith. An offer of evidence tending to defeat recovery should be of facts clear and distinct in their character, and not of doubtful or uncertain import."

This case demonstrates it is dangerous to vest some persons with authority, because they seem ever anxious to exercise it. Blackwolf, "dressed in a little brief authority", apparently thought he had the right to shoot the plaintiff for the purpose of ejecting him from the premises. When the large shiny badge of "William J. Burns, Detective Agency" was pinned on the breast of Blackwolf, it seems to have affected his head.

What is the result? An able-bodied seaman, and a member of the United States Merchant Marine, earning between $450 and $500 per month, has been permanently injured and incapacitated. The amount of the verdict is not challenged. It is a just verdict and ought to be sustained.