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91 Or. 606

State v. Borkey

Oregon Supreme Court

Decided December 3, 1918

Oregon Supreme Court · decided 1918-12-03

<p>Homicide — Instructions—Conspiracy.</p> <p>1. In a prosecution for homicide where several joined in shooting at deceased, an instruction that, if the killing was the result of a conspiracy, all who participated were equally guilty, held proper in view of the faets.</p> <p>[As to what constitutes conspiracy and evidence thereof, see note in 3 Am. St. Rep. 474.]</p> <p>Criminal Law — Instructions—Flight.</p> <p>2. In a prosecution for homicide, instructions that flight and concealment could be considered on the question of guilt, but that flight of itself was not sufficient evidence of guilt, etc., held correct when considered together.</p>

Cited by 2 later decisions — most recently March 1977

2 state decisions

Good law ✅— No negative treatment on recordhow we know

Aeeirmed · Decided 1918-12-03

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JOHNS, J.

¶11. The testimony is undisputed that while running away William Eng received two shots in the back, either of which would have proved fatal; that at the time of the murder eight or ten shots were jointly fired by Chin Borkey and Chin Ping, and while there is no specific evidence that Chin Borkey fired either of the fatal shots, the fact remains that he opened fire and continued to shoot until Eng fell upon the sidewalk. It is also undisputed that one empty revolver recently fired was found in the “shed” and another recently fired revolver was found in the pit; that immediately after the shooting Chin Borkey and Chin Ping disappeared within the Chinese buildings and concealed themselves in the pit, which had the appearance of having been freshly dug and made ready for their hiding, where about five hours later they were found with their codefendants, and that the trap-door leading into the pit was bolted from underneath and was covered and concealed by a carpet upon which furniture had been placed. Under such a state of facts, we think that there was no error in giving the above instruction.

¶22. The defendant also complains of instructions 13 and 14, which were given by the court, and of the refusal to give his requested instruction number 8, which, as stated in the opinion in the Chin Ping case, is legally correct. Instruction 13 should be construed together with instruction 14 and when so construed would not mislead the jury or .constitute prejudicial error. There are other assignments, which are apparently not relied upon by the defendant, but the instructions as a whole clearly state the law and the record shows that the defendant had a fair and impartial trial. The judgment is affirmed.

¶3Affirmed. Eehearing Denied.

Harris, J., absent.
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