515 P.2d 412 (Or.App. 1973), State v. Krummacher

Citation:515 P.2d 412, 15 Or.App. 234
Opinion Judge:FORT, J.,
Party Name:STATE of Oregon, Respondent, v. Hazel KRUMMACHER, Appellant.
Attorney:Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellant. Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Case Date:November 05, 1973
Court:Court of Appeals of Oregon
 
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Page 412

515 P.2d 412 (Or.App. 1973)

15 Or.App. 234

STATE of Oregon, Respondent,

v.

Hazel KRUMMACHER, Appellant.

Court of Appeals of Oregon.

November 5, 1973

Argued and Submitted Aug. 24, 1973.

Rehearing Denied Nov. 29, 1973.

Review Denied Feb. 12, 1974.

Page 413

[15 Or.App. 235] Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellant.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen. and John W. Osburn, Sol. Gen., Salem.

Before LANGTRY, P.J., and FORT and THORNTON, JJ.

LANGTRY, Presiding Judge.

Defendant appeals from consolidated jury trial convictions of first degree murder of Dorothy and Herbert Krummacher, husband and wife, on or about November, 19, 1968 in Oceanside, Oregon. 1 We conclude that the convictions must be reversed under the principles reviewed and enunciated in State v. Voit/Strong, Or.App., 96 Adv.Sh. 1077, 506 P.2d 734, Sup.Ct. review denied (1973). In order to explain this conclusion it is necessary to detail the extensive circumstantial evidence upon which the convictions were based.

Defendant was the wife of Martin Krummacher, son of the victims. The Martin Krummachers lived in Portland and the victims, Dorothy and Herbert, lived in Oceanside, Tillamook County, Oregon. Dorothy and Herbert were having trouble in their marriage and some evidence indicated they were preparing to separate. Evidence also indicated that Martin and defendant[15 Or.App. 236] were having marital and financial trouble. During the four years between the murders and the trial, they were divorced. It takes about two hours to drive an automobile between Portland and Oceanside. On Saturday and Sunday, November 16 and 17, 1968, Martin, the defendant, the defendant's two daughters, aged 11 and 14, and Martin's sister visited the victims at Oceanside. The victims regularly occupied a downstairs bedroom in their home. During the visit Martin and defendant slept in the right-hand upstairs bedroom, and the daughters and the sister occupied the left-hand upstairs bedroom which was separated from the other by the head of the stairway and a bathroom. A .38 caliber Ivar Johnson S & W handgun which Martin had purchased secondhand was taken on this trip. It had previously misfired and Martin had taken it to a gunsmith to be repaired and blued. The defendant had picked the gun up from the gunsmith prior to the trip but it had not been further test fired before the trip. There was conflicting evidence as to whether it was test fired before the trip, but it was not fired that weekend. The evidence was conflicting as to whether the gun was returned to Martin's home at the end of the trip. Defendant first told police officers that her daughter Arlene had taken it into the house at the end of the trip, but later admitted that this was not true; she contends that she made the statement because she was concerned about whether Martin still had the gun. Arlene did not remember whether or not she brought the gun back into the house or whether she even saw it again after their return. Arlene was only 14 at the time of

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the murders and, in the four years that had elapsed since then, she had apparently forgotten the details of the return trip from Oceanside. She did testify, however, that whenever Martin became angry [15 Or.App. 237] she would hide the bullets in the house. Martin's testimony was indefinite about whether the gun was taken into the house.

On Friday, November 22, when the victim Dorothy for several days had not been to her place of employment in Tillamook, a few miles distant from Oceanside, her employer obtained a deputy sheriff's help and went to the Oceanside home. Dogs were noted inside the home. There was no other response so they forced entry and found the body of Herbert, as ordinarily clothed, in the downstairs bedroom. He had been killed by one shot which had completely passed through his chest cavity. His face was covered with a wash cloth. The body of Dorothy was found on a bed in the left-hand upstairs bedroom. There was no evidence of a struggle in either place. Dorothy was clothed in a slip and other undergarments. She had been shot three times and later, during autopsy, one bullet was found lodged inside her; the other bullets had passed through her. Her face...

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