State v. Brewton

• Decision Date: 14 October 1959
• Parties: STATE of Oregon, Respondent, v. Frank LeRoy BREWTON, Appellant.
• Court: Oregon Supreme Court

Page 744

344 P.2d 744

220 Or. 266

STATE of Oregon, Respondent, v. Frank LeRoy BREWTON, Appellant.

Supreme Court of Oregon, In Banc.

Submitted Sept. 1, 1959.

Decided Oct. 14, 1959.

Frank LeRoy Brewton, in pro. per.

Charles E. Raymond, Dist. Atty., and Oscar D. Howlett, Deputy Dist. Atty., Portland, for respondent.

SLOAN, Justice.

Defendant was convicted of killing another while engaged in the commission or attempt to commit robbery, one of the acts defined as murder in the first degree. ORS 163.010(1). He received a life sentence. At the time this appeal was filed he requested this court to appoint counsel in his behalf. At that time the court examined the record and determined that the issues presented did not require the assistance of counsel. Defendant, in person, has filed a brief which adequately presents his contentions.

The indictment, in substance, charges that defendant and one Eugene F. Taylor on November 14, 1957, in Multnomah county, when engaged in the crime of attempted robbery while armed with a pistol, did shoot and kill William W. McKenzie. It cannot be disputed that Taylor did engage in an exchange of gun shots with Mr. McKenzie at the latter's small grocery store on S. E. 13th street in Portland at the time and place alleged. Both McKenzie and Taylor died as a result of the fracas. We are primarily called upon to determine if the evidence was sufficient to require submission to the jury to decide if a robbery was being attempted at the time of the shooting and, if so, was the defendant present at that time and place as an accomplice or coconspirator.

The defendant submits several issues which we will consider in order. His motion for a directed verdict requires an examination of the evidence. The defendant did not testify at the trial nor present any evidence to dispute the testimony of the state's witnesses. It remains to be seen if this evidence and the inferences that could properly be drawn from it required the trial court to submit the ultimate question of the defendant's guilt or innocence to the jury. In his brief the defendant makes many statements of fact and explanation which we cannot consider even though some of them admit the presence of the defendant at the scene of the crime.

The evidence that was admitted without serious objection will be mentioned first. We will then discuss the evidence concerning an alleged dying declaration of the victim and an admission alleged to have been made by the defendant. Both were admitted over objection and are the subjects of assignments of error here. The first mentioned evidence discloses that the victim, Mr. McKenzie, operated a small grocery store in S. E. Portland. About 9:30 in the evening of November 14, 1957, Taylor and another man entered the store. Taylor, at least, was armed. Words were first exchanged between McKenzie and Taylor and then gunshots. Both men were fatally wounded. McKenzie died in a hospital about an hour after the shooting. Taylor apparently survived for a day or two. Taylor's mother lived not far from the scene of the shooting. She testified that the defendant was in her home for a few minutes about 6 or 6:30 that evening with her son, Eugene. When asked if she had seen the defendant later that evening she answered:

'Well, I went to bed kind of early that night, and he was knocking on the door and woke me, and I got up as quick as I could and went to the door.

'I opened the door, and Frankie [the defendant] was at the door. He told, he says, 'Eugene has been shot.' I says, 'Oh, my, is he dead?' He didn't say yes or no. And, he came through the house and went out the back door. And, I asked him, I says, 'Where is Eugene?' and he says, 'He is out in the car.'

'I went with him, and we went to the car. Eugene was in the back of the car and he seemed to be suffering quite a bit.

'Q. And what next did you do, Mrs. Taylor? A. Well, I don't know exactly what I did. No, I did go back in the house and I called my son and daughter and they both came down. And, by that time, Frankie was gone. I didn't see him anymore.'

The evidence otherwise reveals that a police ambulance was summoned by some means and Taylor removed to a hospital in that manner. There is no evidence that Taylor ever disclosed his version of what had occurred.

Defendant was otherwise connected with Taylor. One witness testified that she rented a room to Eugene Taylor and defendant on November 11, 1957. The room was rented and paid for for a week only. Other witnesses swore that they had seen defendant in a store across the street from the McKenzie store earlier in the evening of November 14, 1957. The state contends this last evidence permits the inference that the defendant was in the immediate area before the shooting. The same evidence also permits the inference that defendant was in the neighborhood to select a victim for the proposed robbery. Another witness testified he had heard the shots in the McKenzie store and then saw two men run from the store.

Within an hour after the events described by Taylor's mother the defendant was seen by two patrolling police officers walking along a street near the area of the shooting. The officers were aware of the shooting at the grocery store. Some actions upon the part of the defendant aroused their suspicion and they stopped him for questioning. The officers then observed a bleeding wound in the left hand or lower arm of defendant and so took him in custody on suspicion. The officers testified that at that time the defendant told them he was hitchhiking from Vancouver, Washington, and shortly before had fallen and cut his hand. He gave a fictitious name. Defendant was taken to a hospital for emergency treatment and then returned to police headquarters where he was detained.

Early the next day defendant was taken to Good Samaritan Hospital in Portland where he was further examined and treated by a physician. The testimony of that physician rather dramatically placed the defendant at the scene of a shooting. The doctor described that he first observed two wounds on the defendant's left arm. One was about an inch and a half above the wrist and the other in the palm of the hand. When he was in the process of washing one of the wounds with salt water solution the liquid 'came out this wound showing there was a track between the two wounds. The solution went in one wound and out the other, which indicated a bullet wound, which probably entered here and came out here and with a track left between the two (indicating throughout).' Thereafter the defendant was confined in jail. Police detectives testified that he shortly confessed his part in the affair to them and described the events leading to the shooting. We will return to this confession.

The evidence thus far related is a summary of the evidence which was admitted without challenge and which was directed primarily at the participation of the defendant in the affray. Other evidence was introduced which established the cause of McKenzie's death, the identification of the weapon which fired the death-provoking shots and established Taylor as the person who fired the shots. It is now necessary to consider the admissibility of statements made by the victim shortly before his death and of the statements alleged to have been made by the defendant to the police detectives.

The doctor who attended Mr. McKenzie was called as a witness. He describes the extreme condition in which he found Mr. McKenzie and the treatment used in the vain attempt to save his life. This included the use of an oxygen tent. The doctor was first questioned as to McKenzie's knowledge that death was imminent. This was the doctor's testimony.

'A. When he arrived he had the first aid treatment at that time. The ambulance gave them his--they gave him oxygen by a portable oxygen mask and he had this on as he entered. And, we started to take care of him.

'He would push it aside periodically and say, 'let me die.' This was it.

'Q. Those were the only words he was saying? A. Well, these were the words that were said pertaining to this statement, yes.

'Q. Now,---- A. I asked him other questions, like his name and things like that, yes.

'Q. And he answered those? A. He was coherent at the time. He was able to state his name and----

'Q. But, he didn't say anything else with regard to any hope of recovery; he didn't say, 'I am not going to get well', or anything like that? A. I can't recall of any.

'Q. There were no words like that spoken? A. No, I can't recall if any were spoken.

'Q. He didn't say--he didn't say, 'I am going to die. Your medical care won't do me any good', or any words to that effect? A. Well,----

'Q. Maybe that isn't fair. I will withdraw it.

'The only words that he said were the ones that you quoted here and the best you can remember? A. That is the best I can remember. You must remember that when we get a patient in critical condition we are not worried what they are saying pertinent to history and findings. We are interested in their welfare and that is what we work on until it becomes apparent. Those are the questions we do ask them.

'Q. So, that you have no recollection of anything else like that said except what you have detailed to us?

'Let me just ask you this; doctor, do you believe that McKenzie knew he was going to die? A. Well. I can't tell you what I believe, what McKenzie knew. This is impossible for anyone to tell unless they make the statement. I can't tell if he knew he was going to die.

'Q. He made no expression to you at all that he knew he was going to die, indicating it to you? A. Other than the statement, 'Let me die'. If you want to apply that, 'I am going to die', then you can draw your own conclusions.

'Q. Other than that he made no expression that would indicate to you that he though [sic] he was going to die soon? A. No.

'Q. That you can recall? A. That's right.

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'The Court: Did you get the impression he thought he was going...