(186 P.) so much from her head down to her shoul- [ ders to her waistline; that seemed to be her main trouble, and pain in the side here." Dr. Parker looked plaintiff "over slightly" at the Hales house; but after her removal to the hospital he made a thorough examination, and did not discover "any injury to the spinal cord or column rather, or to the ribs"; and when asked, "If she had had a severely broken rib at that time, or an injury to the spinal column, would your examination have disclosed it?" he answered thus, "Possibly it would; yes, sir; I would imagine if it had been very serious." J. L. Hoisington, an osteopathic physician who had practiced his profession in Pendleton for 14 years, was called to see the plaintiff on December 29, 1917, and from that time on was the attending physician. This witness testified as follows: "I got the history of the case somewhat and what observation I could observe at the time, and found, first I noted what I term nervous shock, judging it from her depression and weakness, for what I could see no physical cause for, and in addition to that I found her very sore at a number of points, especially the right side, and on examination I found what I classed at that time as a broken rib; the eighth rib was broken in the axillary line. The condition at the head of the rib and vertebræ from which it comes was too tender at that time to make a complete examination, and all my information of that was gotten by later examinations and at a subsequent time when I got the tenderness out so I could make the examination. The spine was twisted between the eighth and ninth vertebræ, and it is a twist that still remains." The motion for a new trial which the defendants filed and the court denied was based upon affidavits to the effect that a few minutes before the jury returned the verdict the attorneys for the defendants learned of a rumor that the plaintiff had caused an Xray photograph to be taken; that there was no opportunity to verify the rumor until after the verdict was received; that afterwards, upon making inquiry, the defendants ascertained that on June 22, 1918, the plaintiff went to Dr. Boyden, of Pendleton, who on that date took an X-ray photograph of her spinal column and ribs, and that "said photograph showed that there had never been any injury to the spine and ribs of plaintiff," and that after the photograph was taken Dr. Boyden "informed plaintiff personally that she had not sustained any injury to her spine or ribs." The defendants contend that a new trial should have been granted, because, they argue: (1) The plaintiff was guilty of misconduct in suppressing and concealing the X-ray examination; and (2) the X-ray examination, in the circumstances already stated, constituted newly discovered evidence which the defendants could not with reasonable diligence have discovered and produced at the trial. The verdict of the jury forecloses debate as to whether the defendants were or were not guilty of negligence as charged in the complaint. The jury could not have found for the plaintiff without having first decided that the defendants had been negligent; and therefore the plaintiff was entitled to a verdict for some amount of money if she was injured at all. We need not and do not attempt to decide the extent of the injuries sustained by the plaintiff, and yet we may fairly infer, from the fact that the verdict was for the plaintiff, that the jury believed the testimony of Hales and Daniels, who, for aught that appears in the record, were disinterested witnesses, when they said that the plaintiff was lying in the mud 27 feet from the pavement upon which she was walking when first struck by the automobile, and that the car, which the driver testified was stopped "as soon as possible," was 35 feet north of the place where the plaintiff was found. In other words, notwithstanding the fact that the driver of the automobile applied the brakes promptly upon discovering the pres ence of the plaintiff, she was thrown and rolled and dragged at least 27 feet, and the feet farther, or a total distance of 62 feet car was not stopped until it had gone 35 from the pavement. The mere statement of these facts at once suggests inevitable injury to the plaintiff in some degree, and, in the light of all the testimony, it would be difficult to understand how the jury could have avoided awarding a verdict for more than a nominal amount, even though it is assumed that the plaintiff's rib was not broken and that her spine was not "twisted." In this view of the situation, the evidence about the rib and spine affected the amount of the verdict rather than the right to a verdict. The X-ray examination was not made until June 22, 1918, or six months after the date of the injury. The X-ray photograph was not made a part of the record nor exhibited to the trial judge. There is no affidavit by Dr. Frank Boyden, notwithstanding the fact that plaintiff testified as a witness in her own behalf, and by doing so consented that the physician might testify as a witness. Forrest v. Portland Ry., L. & P. Co., 64 Or. 240, 129 Pac. 1048. While we do not intend to decide whether the trial judge could have compelled the plaintiff to submit to an examination upon the application of the defendants, yet we may with propriety note the fact that the plaintiff was not requested to permit physicians chosen by the defendants to examine her condition, and, so far as the question of injury was concerned, the defendants were apparently willing to rest their whole case on the testimony of Dr. Parker and one of the nurses at the hospital. Dr. Hoisington did not attempt to testify as to the extent to which any rib was broken. The plaintiff was a witness in her (94 Or. 418) CITY OF PORTLAND v. KITCHEN et al. TLED TO COSTS IN PROSECUTION FOR VIOLA - Under City of Portland Charter 1903, §§ ordinances, and under L. O. L. §§ 2494, 2498, 332, 333, 336, retained in charter of 1913 as city prosecuting defendants in municipal court for violation of ordinance held entitled upon judgment of conviction being affirmed by circuit and Supreme courts, to recover from defendants, as costs and expenses, attorney's fees and expenses of brief. own behalf, and she was cross-examined. | attending physician that her rib was in The defendants had ample opportunity to in- truth broken, she had a right to believe, as quire as to whether or not any other physi- she undoubtedly did, that her rib was broken, cian had examined her and whether an X- and she was under no obligation to call Dr. ray photograph had been taken; and yet no Boyden as a witness merely because his opinsuch inquiries were made. In view of the ion based upon an examination made six fact that the defendants did not take full months after the injury differed from the advantage of the opportunities offered by opinion of Dr. Hoisington. On the whole cross-examination, and in view of the other record we think in the language of the confacts shown by the record, we do not think stitutional amendment (article 7, § 3), "that that we would be justified in reversing the the judgment of the court appealed from was trial court and holding that he should have such as should have been rendered in the allowed a new trial on the ground of newly case," and therefore we conclude that the discovered evidence. McClendon v. McKis- | judgment appealed from ought to be, and it sack, 143 Ala. 188, 38 South. 1020; Mor- is, affirmed. rison v. Carey, 129 Ind. 227, 28 N. E. 697. [5] Section 174, subd. 2, L. O. L., provides that a new trial may be granted on account of "misconduct of the jury or prevailing party." If during the course of a trial it appears that evidence has been willfully suppressed, the opposing party is given the benefit of the disputable presumption that the suppressed evidence would be adverse to the party suppressing it. Section 799, subd. 5, L. O. L. We may assume, for the purposes of the discussion, that if after a trial it is ascertained that the prevailing party has willfully suppressed evidence, it amounts to misconduct within the meaning of section 174, L. O. L. But can it fairly be said that the plaintiff was guilty of suppressing evidence? The plaintiff knew whether she suf fered any pain, and she also knew where the seat of the pain was. So overwhelming is the evidence that it may be said to have conclusively established that she suffered pain in the side. The physician who examined her on the evening of the accident stated that he did not discover any broken rib or twisted spine. The physician who called upon her five days afterwards and from that time on acted as her attending physician testified that her rib was broken and that her spine was twisted. The X-ray photograph was not taken until six months after the accident, and, for aught that appears in the record, the broken rib, if there was one, may have completely united, leaving no evidence of a former break. We are not advised as MCBRIDE, C. J. The defendants, upon apto whether medical men would say that a peal from the municipal court, were convictbreak either sometimes or always leaves evi- ed in the circuit court of a violation of ordidence of the break which an X-ray photo-nance No. 34046 of the city of Portland, and graph will invariably picture; nor do we upon appeal to this court the judgments were know how serious the break must be in order affirmed. 183 Pac. 933. Thereupon the plainto leave permanent evidence of the frac- tiff filed its cost bills, consisting of the folture. If the plaintiff's rib was broken, it lowing items: may be that it was a slight break, and no evidence of the fracture remained on June 22, 1918, when the X-ray photograph was taken. The plaintiff was not bound to believe the opinion of the physician who took the X-ray photograph six months after the accident; but, knowing that she actually suffered pain, and having been told by her bills was disallowed by the clerk of this In Banc. Appeal from Circuit Court, Multnomah County; Geo. W. Stapleton, Judge. Catherine Kitchen and P. J. Traynor were convicted of violating an ordinance of City of Portland. Judgments of conviction affirmed by Supreme Court, and, from decision of the clerk of Supreme Court taxing costs and disbursements against defendants, they appeal. Affirmed. Wilson T. Hume and J. LeRoy Smith, both of Portland, for appellants. W. P. LaRoche, City Atty., and L. E. Latourette, Deputy City Atty., both of Portland, for respondent. Kitchen Appeal. Brief ................ Total 27 00 Brief .$52.00 Total ...........$81 00 The item of $10 clerk's fee in both cost (186 P.) court, and the remaining items allowed, [ of the ordinances above quoted, the material whereupon defendants appeal from the deci- phrases of which we italicize, the respondent sion of the clerk, claiming that under the is entitled to recover the costs and disburseordinances of the city of Portland no costs or ments taxed by the clerk, and his ruling disbursements are chargeable against any thereon is affirmed. party in a criminal proceeding. We are of the contrary opinion. Section 336 provides: (96 Or. 219) STATE v. BUTLER. 1. CRIMINAL LAW 1186(4) (Supreme Court of Oregon. Dec. 23, 1919.) In view of L. O. L. § 1626, providing that 158(2, 3)—THREAT ADMISSIBLE IN EVIDENCE THOUGH NOT DIRECTED ESPECIALLY TO DECEASED. killed. 3. CRIMINAL LAW 363 TESTIMONY OF ARRANGEMENT IN DEFENDANT'S ABSENCE NOT HEARSAY. In a prosecution resulting in conviction of "Except as hereinafter stated appeals may be manslaughter, testimony of decedent's father taken and shall be allowed from final judgments that about eight months before the shooting derendered in the municipal court in all actions, fendant had said to him that, if he could not beat both civil and criminal, under the same circum- them any other way, he would do it with a Winstances, on the same conditions, in the same chester, held admissible as a threat over objermanner, and with like effect that, under the tion that it was not directed especially toward laws existing at the time of the rendition of deceased and was too remote; such threat havany such judgment appeals may be taken, and shall be allowed from final judgments rendered ing reference to a controversy about a road in similar actions in justice's courts. Any de-pursuant to which decedent was subsequently fendant who is convicted of any crime defined or created by this charter, or of a violation of any ordinance, rule, or regulation of the city of Portland, and is sentenced to any imprisonment or to pay a fine exceeding twenty dollars, may, within five days from the date of such conviction and judgment, appeal to the circuit court of Multnomah county, by giving to the city attorney a written notice of appeal and filing an undertaking on appeal, with one or more sureties, to be approved by the municipal judge in said municipal court, which undertaking shall be to the effect that such defendant and appellant shall pay all costs awarded against him on the appeal, and render himself in execution of any judgment rendered against him on the appeal. * In view of L. O. L. § 707, recognizing res geste both as to facts in dispute and as to some act that becomes important as evidence of facts in dispute, in a prosecution resulting in conviction of manslaughter, the controversy having originated over a fence across a road, testimony tending to show the arrangement with other persons under which decedent came to be at the scene of the shooting on watch to see who was putting up the fence held not incompetent hearsay because arrangement was made in defendant's absence. 4. CRIMINAL LAW 369(15) HOMICIDE 234(6) EVIDENCE OF OTHER CRIME AS SHOWING IDENTITY. In a prosecution resulting in conviction of manslaughter, the killing having taken place In Ex parte McGee, 33 Or. 165, 54 Pac. 1091, it was held in substance that the provision first above quoted imported into the charter of Portland the mode of procedure provided for justices' courts, with certain ex-at defendant's fence, which he was putting up ceptions not material here. Sections 2494 and 2498, L. O. L., relating to judgments of conviction in justices' courts, provide for the recovery of costs from a convicted defend ant. We are of the opinion that by virtue of these provisions, as well as by the provisions nightly to obstruct a road, decedent with others having been on watch to find out who was doing it, testimony of such others as to what occurred probably half an hour before the killing on the other side of the field from where the killing occurred, where the road went through the fence on that side, and that defendant then drew gun on the others when they were coming close For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes THREATS NOT ABSTRACT. enough to identify him, held admissible, and not | 13. HOMICIDE 286(1, 2) — INSTRUCTION ON objectionable as showing a collateral offense, and sufficient to justify the jury in concluding it was defendant. DECLARATIONS BY ACCUSED AS TO POSITION IN FIRING. In a prosecution resulting in conviction of manslaughter, testimony of a deputy sheriff as to where defendant showed him he was when he fired the last shot at decedent, and about how far the place was from the panel in his fence, open on account of a road, which he had been putting up nightly, so that decedent with others had volunteered to watch for him, also how far the place was from that where empty shells were found, held admissible. 755 6. CRIMINAL LAW SELF-DEFENSE. In a prosecution resulting in conviction of manslaughter, instruction on the right of selfdefense arising from an assault or attack with a dangerous weapon held properly refused as argumentative and invading the province of the jury. 7. HOMICIDE 341 In a prosecution resulting in conviction of manslaughter, instruction as to the consideration of threats made by defendant against decedent in determining defendant's intent and malice held not erroneous as abstract; there being some evidence of threats. 14. CRIMINAL LAW 1186(1) ARGUMENT OF DISTRICT ATTORNEY. Though the language of the district attorney in argument was bitter and somewhat intemperate, reversal is not justified on that account alone. 15. CRIMINAL LAW 865(1) - INSTRUCTION NOT COERCING JURY; "STUBBORN." In a prosecution resulting in conviction of manslaughter, instruction to the jury by the court on their inability to agree, sending them back for further consideration, and urging them to try to agree, if possible, held not erroneous as coercive, despite the expression admonishing them not to get stubborn and say they would not; "stubborn" meaning "unreasonably unyielding." HARMLESS ERROR IN 16. HOMICIDE 300(14) REFUSAL OF INSTRUCTION. In a prosecution resulting in conviction of manslaughter, the refusal to defendant of his requested instruction referring to malice and ill will held harmless to him in view of the verdict negativing the existence of malice or ill will on his part. 8. CRIMINAL LAW 834(2) FOLLOWING LANGUAGE OF REQUESTED INSTRUCTIONS. The trial court is not required to give charges asked for in the exact language in which they are requested, but need only cover the principles of law involved. 9. HOMICIDE MALICE OR DELIBERATION. Every killing is manslaughter unless it is justifiable or excusable, or is accompanied by malice or deliberation, when it becomes murder in the first or second degree. 10. HOMICIDE 44, 116(2)-KILLING IN ANGER WITHOUT EXCUSE OR JUSTIFICATION IS MANSLAUGHTER. If defendant under provocation of a sudden attack grew angry and killed decedent without real or apparent necessity, the killing was not justifiable or excusable, and defendant was properly convicted of manslaughter. 11. HOMICIDE 250 EVIDENCE SUSTAINING CONVICTION OF MANSLAUGHTER. In a prosecution resulting in conviction of manslaughter, defendant having shot and fatal ly wounded decedent, who was watching a road through defendant's land to see if he was the one who was putting up an obstructing fence every night, evidence held sufficient to sustain the verdict. 12. CRIMINAL LAW 822(1)-READING IN In view of L. O. L. §§ 1371, 1909, 1914, in a prosecution resulting in conviction of manslaughter, instruction on self-defense held not to take his adversary's life only to cases of erroneous in its limitation of defendant's right threatened deadly harm or severe calamity "felonious" in character; the word "felonious" having been used as synonymous with great bodily injury. 17. CRIMINAL LAW 730(7) FALSE AS SUMPTION IN ARGUMENT OF DISTRICT ATTOR- In prosecution resulting in conviction of manslaughter, the assumption by the district attorney in argument that certain witnesses had identified defendant in a certain place on the night of the killing held not reversible error as more in the nature of a misconstruction of the testimony than a positive and willful misstatement; the charge having instructed the Jury to disregard statements not sustained by evidence. The killing itself is not denied by the defendant, and grew out of the following facts: The defendant was the owner of a tract of Instructions must be read together, and land near Eagle Point, in Jackson county, cannot be considered each by itself. which was inclosed by a fence. STRUCTIONS TOGETHER. For some (186 P.) time prior to the killing there had been a controversy in the neighborhood over a road running through this tract of land, and as to whether such road was a valid county road. McDonald Stewart, the individual killed by defendant, was a neighbor living with his father near one side of defendant's tract of land and apparently interested in the opening of the road in question. The road supervisors, ostensibly under authority from the county court, had opened the fence on each side of defendant's tract of land where the road went through a number of times prior to the killing. The fence would remain open during the day, but would be put up again in the night. It appears to have been the belief of some of the people . who lived in the neighborhood that the defendant was putting up the fence, and he had been threatened with prosecution for closing the alleged county road. The defendant, on the other hand, claimed that some third party was the individual who had been putting up the fence at night, and that it was done for the purpose of getting him into trouble. On the night in question the supervisor had arranged with McDonald Stewart, the deceased, and with a Mr. Jackson, who also lived in the neighborhood, to watch the fence, for the purpose of settling the question as to who was putting it up at night. The road ran through the field from west to east, and it was arranged that the supervisor and Jackson were to watch the fence on the west side, while the deceased was to watch it on the east side. At first it was intended that another neighbor, by the name of Patrick, should share with Stewart in watching the fence on the east side, but he was not able to go and the deceased went alone. Dutton, the road supervisor, and Jackson went up to the vicinity of the fence on the west side that evening in an automobile, accompanied by Mrs. Jackson, stopped the automobile under a tree, and waited. Dutton and Jackson walked a short distance over toward the fence. It was a moonlight night, and presently they saw a man come to the gap of the fence and commence putting it up. They went back to the automobile and drove it up to the vicinity of the gap, but by this time there was no one in sight. They got out of the automobile and started along the fence, Dutton apparently being in the lead. Presently they saw a dark object, which they took to be a man, behind the fence about 30 feet away, but so hidden by the fence that they could not identify him. Mr. Dutton continued to advance until he got within about 15 feet of the man, who then partly raised up and pointed a gun at Dutton over or through the fence. Dutton said, "For God's sake don't shoot me over this fence," and stepped back two or three steps. The person in the fence then turned the gun on Jackson, who also turned back, and they both walked to the car, got into it, and went home. This occurred between 7:25 and 8:25 o'clock-probably, from the testimony, about 8 o'clock. Dutton and Jackson could not identify the person in the fence, but in a general way they described his clothing, and they noticed in the moonlight the polished brightness of the gun barrel. The shooting occurred near the gap on the east side where McDonald Stewart was watching. About 9 o'clock that night, or a little before, the defendant telephoned to the sheriff from his home about the shooting. He claimed that after the shooting he had walked from the place where it occurred down to his house before telephoning, so that the shooting may be assumed to have occurred somewhere in the neighborhood of 8:30, or possibly a few minutes later. The defendant claimed he was walking along down a fence in the vicinity of the gap when some one fired two shots at him. He claims that at the second shot he saw the flash from behind the tree about 100 feet away; that he then fired himself, two shots toward the point where the flash had occurred; that a third shot was then fired from the tree and hit the fence close to where he stood; that he then got down behind the fence, and, seeing a dark object, which he took to be part of a man's person, behind the tree, fired a third shot, when the man behind the tree fell and uttered some sound which indicated to the defendant that he was hit. The defendant then, as he says, got up and walked down to his home and telephoned to the sheriff. The defendant at the time of the trial claims he did not move down the fence toward the south after the third shot was fired by the other man; but there was testimony tending to show that on the night of the killing he told Anderson, the deputy sheriff, that he had crawled down the fence until he came to a place where he could see the black spot, which he took to be part of the man's person behind the tree, before he fired the fatal shot. According to Anderson's testimony, defendant showed him on the ground about the point from which he fired this shot; and Anderson estimated the distance as about 90 feet from the gap. Two discharged shells were found the next morning at the gap in question, and it was the theory of the state that the defendant, after firing these two shots and after the last shot was fired by the deceased, crawled along down the fence out of sight of the deceased until he got far enough past the direct line of the tree so he could see the deceased behind the tree, and then deliberately took aim and fired the shot in question. The deceased made no statement and there was no direct evidence as to what occurred at the time of the shooting, except that of the defendant himself. The state depended upon |