The opinion
PETITION FOR REHEARING
We have for consideration a petition for rehearing filed by respondent, supported by an able brief. In addition thereto, the United States has filed a brief as amicus curiae. In these briefs our attention is called to some Coast Guard regulations not referred to in respondent's original brief. These additional regulations, however, were thoroughly considered by the court at the time of our decision of this case. The statement in the opinion, that "under certain circumstances, the Captain of the Port could and did send Coast Guardsmen onto the Kingsley property, in the day time, for the purpose of investigating fire conditions," was not intended as a limitation on the authority of the Captain of the Port, but only as a statement of the manner in which he had theretofore exercised that authority, as shown by the record in this case.
Section 7.5 of these regulations (Part 7, Chapter I, *Page 433
Title 33, Code of Federal Regulations) provides, among other things, as follows:
"Powers of the Captain of the Port. The Captain of the Port and his duly authorized representatives shall have the right of entry to waterfront facilities at all times."
True, under this regulation the Captain of the Port had authority to go onto the Kingsley property at all reasonable times, but we are not dealing with that situation here. He didn't go. True, the Captain of the Port could have sent Yeoman and Boynton to the Kingsley property at any reasonable time, but he didn't do it. He sent them to the West Oregon property. Here we are not dealing with theoretical possibilities but with actualities. We are dealing with this record as made. The reference in this regulation to the Captain of the Port does not include his subordinates unless they are authorized by him. 1 U.S.C.A. 1 ; Morgan v. United States , 298 U.S. 468 , 478-9 , 80 L.Ed. 1288 , 1294 , 56 S.Ct. 906 ; Payton v. McQuown , 97 Ky. 757 , 31 S.W. 874 , 877 , 31 L.R.A. 33 ; City of Muscatine v. Sterneman , 30 Iowa 526 .
It is argued that Yeoman and Boynton were the "duly authorized representatives" of the Captain of the Port within the meaning of this regulation. Duly authorized representatives for what? The answer to that question is clear: To carry out their assignment patrolling the West Oregon property. Certainly it could not be contended that they were the duly authorized representatives for all purposes. The responsibility for the success of this vast scheme of guarding and patrolling these waterfront facilities rested upon the shoulders of the Captain of the Port. It will be presumed that he was a man of sound judgment and broad experience, that he knew when and *Page 434
where to send his subordinates, and that he had a purpose in sending Yeoman and Boynton to the West Oregon property. A gigantic organization of this kind can function efficiently when, and only when, every man in that organization adheres strictly to his assignment.
It is contended that the position taken by the United States constitutes an administrative construction of these regulations. In the first place, the regulations are clear and need no construction. Again, there is no showing in this record that the Captain of the Port so construed them. Certainly the position of the United States attorney does not constitute an administrative construction.
The Government calls our attention to article 202 of the Regulations for the United States Coast Guard, 1940, Chapter II, which reads as follows:
"The Coast Guard is charged with the prevention, detection, suppression of violations of laws of the United States on the high seas, in Harbors, bays, sounds, roadsteads, and like bodies of water along the coasts of the United States, its territories and possessions, and shores of the Great Lakes, and on the Great Lakes and the connecting waters thereof."
This article clearly has no application to the situation with which we are here dealing. This was on land, a waterfront facility.
Again, our attention is called to article 1901 of the Coast Guard Regulations, supra, Chapter XIX, which is as follows:
"All persons of the Coast Guard shall make themselves familiar with, observe, obey, and, so far as lies in their power or in their sphere of action, enforce the law relating to the Coast Guard, these *Page 435
regulations, and such orders, circulars, and instructions as may be issued by superior authority. In the absence of specific instructions they shall conform to the customs and usages of the Service. They shall be vigilant in observing defects in aids to navigation and shall promptly report or correct such defects so far as is within their power. They shall obey readily and execute with promptitude and zeal the lawful orders of their superiors. They shall show to their superiors all proper deference and respect."
The laws which Coast Guardsmen are thus enjoined to enforce "in their sphere of action" are the laws relating to the Coast Guard, not the laws of the State of Oregon.
Many hypothetical emergencies are created in the briefs, and, based thereon, certain arguments are made and conclusions drawn. It is neither necessary nor proper for this court to decide cases not before it. "Sufficient unto the day is the evil thereof."
The suggestion is several times repeated in the brief of the Government that the opinion in this case holds that the Burns detective guards were an "agency of the United States Government." The opinion intends no such suggestion. However, the Burns guards constituted one of the agencies assisting in guarding these war industries. We indicated no superiority between Blackwolf, Yeoman and Boynton. They each had a duty assigned to them. Blackwolf was to guard the Kingsley property; Yeoman and Boynton, the West Oregon property. Neither had a right to interfere with the other.
It is contended that regulation 7.16, Part 7, Chapter I, Title 33, Code of Federal Regulations, gave Yeoman and Boynton authority to go to the Kingsley *Page 436
property for the purpose of reporting suspicion of sabotage to the Captain of the Port. The regulation reads:
"7.16. Reporting of Sabotage. The evidence of or suspicion of sabotage or of any other subversive activity involving a waterfront facility or personnel employed thereon, shall be reported immediately to the Captain of the Port * * *."
There was nothing in the statements of respondent, Piel and Gill to Yeoman and Boynton even tending to indicate suspicion of sabotage. Again, the record is clear that they did not go there for that purpose.
The Government says:
"It is also apparent from Sections 7.1, 7.5, 7.16 and 7.22 that the responsibility and jurisdiction of the Coast Guard in the administration of port security regulations is equally broad and extends to the control of private guards in all their activities."
It is true that these regulations required the Kingsley guards to be citizens of the United States, of good moral character, in satisfactory physical condition and acceptable to the Captain of the Port. It is to be presumed that Anderberg and Blackwolf met those requirements. There isn't a suggestion in these regulations that these guards should be acceptable to all members of the temporary Auxiliary Coast Guard, or that they were subject to the order or direction of anyone except the owner of the facility.
It is strenuously contended by respondent that Blackwolf could have had no reasonable basis for belief that respondent, Piel, Yeoman and Boynton were trespassers. As the opinion points out, the evidence regarding the manner of approach of respondent and *Page 437
others to Blackwolf is very much in conflict. This was clearly a question of fact for the jury.
On page 36 of respondent's brief, it is said:
"We must confess our utter amazement that the majority of this Court should decide the question presented by the offer of proof by Harleigh Glass on the apparent assumption that it involved threats made by respondent * * *."
The court entertained no such assumption, nor did we decide the question presented by this testimony, other than to say that the trial court was in error as to his reason for rejecting the same. To this we added that "the witness was not present at the time the showing was made, and it is not at all clear that the same question will present itself in the same form upon a retrial."
Respondent again earnestly urges that even if it be conceded that he was a trespasser at the time of the shooting, and even if it be conceded that it was error to instruct the jury that he was not such trespasser, nevertheless the error was harmless for the reason that "the entire question of trespass is wholly foreign to a case in which self-defense is the sole and only issue."
We have again given consideration to this question and to the argument and authorities submitted by respondent in support thereof, as well as to the argument and authorities submitted by appellant, contra. A fair summary of the cases submitted by respondent may be made as follows: That one may not shoot a trespasser or inflict upon him great bodily harm just because he is a trespasser. That is in exact accord with the rule we enunciated in our original opinion. This is not the equivalent of holding that the issue *Page 438
of trespass is foreign to a case in which self-defense is the sole issue. For the reasons pointed out, the question of trespass was material to the issue involved herein. People v. Reese , 65 Cal.App.2d 329 , 150 P.2d 571 ; Stacey v. Commonwealth , 189 Ky. 402 , 225 S.W. 37 , 25 A.L.R. 490 ; People v. Dann , 53 Mich. 490 N.W. 159 ; Boykin v. States , 86 Miss. 481 , 38 So. 725 ; Restatment of the Law of Torts § 79.
Upon a re-examination of the record, we find one statement in the opinion which we desire to correct. We there said:
"At the time involved, there was maintained at this passageway, both on the Kingsley property and on the West Oregon property, signs reading: `Warning. Do not trespass. Enter these premises at main gate only. Order of U.S. Coast Guard.'"
The fact is that there was but one such sign and that was on the West Oregon Company property. Due to confusion in directions, we had construed exhibits 8 and 9 as showing different signs, facing one another. A study of the detail disclosed in these exhibits demonstrates that they both portray the same sign.
The petition for rehearing is denied.