State v. Kader

Decision Date12 May 1954
Citation270 P.2d 160,201 Or. 300
PartiesSTATE v. KADER.
CourtOregon Supreme Court

Nels Peterson and Frank H. Pozzi, Portland, argued the cause for appellant. With them on the brief was Sidney I. Lezak, Portland.

J. Raymond Carskadon and Charles E. Raymond, Deputy Dist. Attys., Portland, argued the cause for the respondent. With them on the brief was John B. McCourt, Dist. Atty., Portland.

Before LATOURETTE, C. J., and WARNER, ROSSMAN, LUSK, BRAND and PERRY, JJ.

ROSSMAN, Justice.

This is an appeal by the defendant from a judgment of the circuit court which found her guilty of the crime of manslaughter, ORS 163.040. The indictment charged that on January 23, 1952, the defendant, 'by the use of the hands', killed her three-year-old daughter Sherry by asphyxiation. The indictment was appropriate to a charge of murder in the first degree. The defendant's plea was 'not guilty.'

The defendant submits assignments of error which challenge rulings adverse to her that (1) denied a motion made by her for a directed verdict on the ground of insufficiency of the evidence; (2) refused to instruct the jury upon excusable homicide; (3) instructed the jury upon the subject of consciousness of guilt; (4) permitted a medical witness called by the state to express an opinion concerning the cause of bruises which appeared upon the deceased's face; and (5) refused to order a state witness to produce papers from which he had refreshed his memory before entering the witness stand.

The face of the deceased child had discolorations under the chin, upon both cheeks and over the bridge of the nose. The state claims that January 23, 1952, between 3:15 and 5:00 p. m. the defendant clasped a hand firmly over the mouth and nose of Sherry, causing the discoloration thereby and effecting her death through asphyxiation. No person who testified saw the purported act occur. The state also claims that after the defendant had brought about Sherry's death she cast the body into a sump upon the grounds of the East Side plant of the Portland Gas & Coke Company. The plant is situated a few blocks from the home which the defendant occupied. January 25, at about midnight, she led the officers to the sump and showed them the body floating in water which filled the lower two feet of the sump. The latter was seven feet wide and nine feet long. Its depth was about 12 feet. Old-fashioned cellar doors which met in the middle covered the top.

The defendant, 21 years of age, was the mother of two children, one of whom was the deceased Sherry, three years of age, and the other was Georgina, known as Vickie, four years of age. The trial judge ruled that, due to Vickie's tender years, she was not competent to give testimony. The defendant did not testify. The first assignment of error renders it incumbent upon us to review the evidence, especially that which the state produced. The evidence covers 1,225 pages. In addition there are many exhibits.

The defendant resided with her two children in the basement apartment of a house owned by her stepfather and mother in Portland, Mr. and Mrs. Eugene Sing. The Sings occupied the main part of the house. The apartment in which the defendant and her two children lived took up only a portion of the basement. In the remaining section were a flight of stairs leading to the first floor and some rubbish which included several small pieces of concrete. Although the Sings occupied the main part of the house, we shall refer to the latter as the defendant's home.

The defendant cared well for her children. The Sings described her relationship with them as generally good. Mrs. Sing declared that 'sometimes she was a little bit too severe with them,' and Mr. Sing believed that she was 'meaner' to Sherry than to Vickie.

A taxicab driver testified that Thursday, January 23, 1952, at a few minutes after 3:00 p. m. he drove the defendant and her two daughters home from downtown Portland. On that day rain fell intermittently. Precipitation occurred around 5:00 and 6:00 p. m. When the cab reached the defendant's home, the driver lifted the children from it across the wet parking grass to the sidewalk. In so doing he came close to the faces of the children. He observed nothing unusual in their appearance. Shortly after the defendant reached home she requested Mr. Sing to drive her to a postoffice station in that vicinity, but when Sing noticed that the time was 3:15 p. m. he told her that the trip would be useless, explaining that the station's hour for closing was 3:00 p. m. Sing then drove to his brother's restaurant and did not return home until 6:00 p. m. The evidence just reviewed, according to the state, shows that the defendant was with her children on the afternoon when Sherry was killed. It also shows, so the state claims, that at that time no bruises, marks or discolorations were upon Sherry's face.

At about 5:42 p. m. of that day (January 23) two police officers who were operating a prowl car received a radio call ordering them to go to the defendant's home. Two minutes later, when they spoke to the defendant, she told them, according to one of the officers, that about 15 minutes before they came her daughter Vickie, who had been playing outside, told her that 'AN OLD MAN WITH GRAY HAIR, WHO WAS DIRTy, in a black car, had grabbed sherry and--into his car and drove off.' Upon hearing the defendant's statement, one of the officers telephoned to the central police station and the other drove the defendant and Vickie around the neighborhood in an effort to find Sherry and her purported abductor.

At six o'clock of that evening, P. E. Lippold, a sergeant of the Portland police department, called upon the defendant and was told by her that Vickie had said 'the man had driven up, that he was an old dirty man, and that he had gray hair, similar to grandmother's hair, and that he was wearing coveralls with a zipper front; that it was an old dark sedan and dirty and that he had stopped and said, 'Hi, little girls, come over here.' And then that he grabbed Sherry by the arm and put her in the car.' At 7:00 p. m. Lippold again spoke to the defendant. This time he was accompanied by two other members of the police department. He testified:

'And at that time she told us that now her daughter Vickie had changed the story somewhat, that Vickie told her now that she had not actually seen a man grab Sherry, but that the man had first grabbed Vickie and that Vickie broke away and ran towards the house and when she turned around again the man was driving off and she didn't see Sherry any more; but she stated that Vickie had told her that she didn't actually see the man put her in the car as she had originally stated.'

At 11:00 p. m. of the same day (January 23) Lippold again interviewed the defendant. This time he and a fellow officer (Nolan) inquired as to the father of the children and was told that the father was a Mr. George Dollarhide who lived in California. The defendant expressed the belief that Dollarhide was not the person who had taken Sherry, for, according to what she told the officers, 'the children knew George and that Vickie certainly would have known if that man that did pick up Sherry was George.' She explained that Dollarhide had not seen the children 'for over a year', but, later, as the interview progressed, said that Dollarhide had been in Portland within the last four months and had seen, not only the children, but also the defendant and Mrs. Sing.

The defendant's mother, Mrs. Sing, was employed in a Portland store. On January 23 the mother and the defendant's stepfather reached home at about 6:00 p. m. At that moment the defendant was upon the porch talking to a police officer. According to Mrs. Sing, the defendant 'was kind of hysterical' and her hair 'was hanging down like she was wet, and Vickie looked like she was wet too.' She wore a coat. Sing also noticed the defendant's hair and, as a witness, described it as 'all stringy, so wet. * * * both her and the girl was soaking wet.' One of the police officers gave a similar account of the condition of the defendant's hair. The significance which the state attaches to the description just quoted will appear later. Presently the defendant told Mrs. Sing that 'Sherry disappeared, that she was gone; she let her out to play and I don't know, all that.' After the police officers had left and the defendant had accompanied her mother into the house the two had a conversation which the mother recounted in this way:

'A. Well, naturally, I asked her what had happened and she told me again.

'Q. And what did she tell you that time? A. Well, just that Sherry was gone, she shouldn't have let them out to play, things like that.

'Q. Did she tell you how Sherry had gone at that time? A. Well, she just said that they were out to play and some man come along and Georgina come to the door and told her Sherry was gone.

'Q. By 'Georgina' you mean Vickie came to the door? A. Yes.

'Q. And said that Sherry was gone? A. (Witness nods head). Then Georgina told me that the man had yellow boots on, and then I tried to talk to her to find out exactly what the man looked like. I thought maybe it would help.'

The events which we have so far mentioned occurred, so the witnesses swore, Wednesday, January 23.

Thursday, January 24, the police continued their investigation into the disappearance of Sherry. At about 9:30 a. m. J. H. Braley and Albert Eichenberger, both officers in the police department, accompanied by two members of the Federal Bureau of Investigation, called upon the defendant. Braley testified that Eichenberger and the two federal officers questioned her about the purported disappearance of Sherry and that while the questioning was in progress he played with Vickie. We now quote:

'I was merely--as I like youngsters, I was merely entertaining the, Mrs. Kader's daughter that was there, and talking to her and playing...

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    • United States
    • Oregon Supreme Court
    • 3 Mayo 1990
    ...except with respect to the evidence concerning jurisdiction and venue (assignments of error nos. 4 and 5).17 In State of Oregon v. Kader, 201 Or. 300, 334-36, 270 P.2d 160 (1954), which antedates both State v. McCormick and State v. Stilling, and which is not cited by defendant, this court ......
  • State v. Messinger, 530--III
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    ...the first three classifications set forth above under this portion of the opinion. State v. Goebel, Supra; State v. Kader, 201 Or. 300, 270 P.2d 160, 173--175 (1954). The fourth classification, namely, the solicitation by defendant toward a married woman, was erroneously admitted. While thi......
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    • 27 Julio 2016
    ...who makes statements evidencing a consciousness or sense of guilt is the person responsible for the death of the victim. State v. Kader , 201 Or. 300, 333, 270 P.2d 160 (1954). In this 379 P.3d 588case, a rational juror could infer that defendant's statements to investigators acknowledged h......
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