State v. Banks

• Decision Date: 01 May 1934
• Citation: State v. Banks, 147 Or. 157, 32 P.2d 571 (Or. 1934)
• Parties: STATE v. BANKS et al.
• Court: Oregon Supreme Court

32 P.2d 571

147 Or. 157

STATE v. BANKS et al.

Supreme Court of Oregon

May 1, 1934

In Banc.

Appeal from Circuit Court, Lane County; G. F. Skipworth, Judge.

Llewellyn A. Banks and another were indicted for murder in the first degree, named defendant was convicted of murder in the second degree, and he appeals.

Affirmed.

Frank J. Lonergan, of Portland, and Charles A Hardy, of Eugene, for appellant.

L. A Liljeqvist, Asst. Atty. Gen., and George A. Codding, Dist Atty., of Medford (I. H. Van Winkle, Atty. Gen., Ralph E. Moody, Asst. Atty. Gen., and G. W. Neilson, Deputy Dist. Atty., of Medford, on the brief), for the State.

BAILEY, Justice.

On March 24, 1933, the grand jury of Jackson county, Or returned an indictment accusing Llewellyn A. Banks and Edith R. Banks of the crime of murder in the first degree and charging them with having on March 16, 1933, in Jackson county, Or., unlawfully, feloniously, purposely, and of deliberate and premeditated malice, killed one George J. Prescott by then and there shooting the said Prescott with a rifle loaded with powder and bullets; said rifle being held in the hands of Llewellyn A. Banks at the time of the shooting.

Thereafter, on motion of the defendants for a change of venue, the place of trial was changed to Lane county, Or.On May 21, 1933, the jury hearing the case returned a verdict of not guilty as to Edith R. Banks, and a verdict of guilty of murder in the second degree against Llewellyn A. Banks.On August 14, 1933, a judgment was entered against the latter defendant sentencing him to life imprisonment in the state penitentiary, from which judgment he has appealed.

In so far as material on this appeal, the following are substantially the facts as shown by the record: Prior to March 16, 1933, considerable friction was prevalent at Medford between the so-called "Good Government League" and the "Committee of One Hundred," both of which organizations had comparatively large memberships composed entirely, or practically so, of Jackson county residents.The defendantLlewellyn A. Banks, hereinafter to be referred to as the defendant, was the publisher of a daily newspaper which became the organ of the Good Government League, of which the defendant was an active member and the honorary president.

Several civil suits and criminal proceedings had been instituted and were pending against Banks when an indictment was returned by the Jackson county grand jury charging him and other members of the Good Government League with burglary not in a dwelling house, committed on February 20, 1933, and connected with the taking of ballots from the courthouse at Medford.

The sheriff and at least one of his deputies were implicated in the burglary, and a bench warrant for the defendant's arrest on that indictment was issued by the circuit judge and directed to George J. Prescott as constable of the Medford justice's district of Jackson county.At or about 10 o'clock in the morning of March 16 Mr. Prescott, accompanied by James O'Brien, a state police officer, went to the defendant's residence for the purpose of serving the warrant.Upon their arrival there, Edith R. Banks, in response to the ringing of the bell, opened the front door a short distance, as far as permitted by a burglar chain.The officers made known their mission and almost simultaneously the defendant appeared in the room with a rifle at his shoulder and shouted, "Look out!"Mrs. Banks immediately stepped to one side, and the defendant fired through the narrow opening in the doorway, killing Prescott instantly.The defendant then reloaded his rifle.At the time the shot was fired, E. A. Fleming was in the room with the defendant, and he immediately ran out of the back door of the house.O'Brien went for aid, and later, without further trouble, the defendant surrendered to peace officers.

Soon after the defendant was taken into custody, a search was made of his residence, and there were found, on a table in the room where defendant had stood at the time the shot was fired, a .30-06-caliber Newton rifle, loaded, and a .44-caliber Smith & Wesson revolver, loaded, in a holster.The state contends, and the defendant admits, that the fatal shot was fired with this rifle.In a back room, during this search, was found additional ammunition for the rifle and the revolver above mentioned and for a .32-caliber Winchester.

Later, about 4 o'clock in the afternoon of the same day, a further search of the defendant's house was made by two state police officers, and they found on a cot, with a woman's coat thrown over them, "in a hallway leading from the front part of the house or from the dining-room to the rear," a .32-caliber automatic pistol, holster, cartridge belt, and loose cartridges.Between the time of the first search and that of the second the defendant's house had been open and a great many people had gone through it.

Prior to the time that Constable Prescott went to the defendant's residence to serve the bench warrant, the defendant had made the statement to at least two individuals that he would not submit to arrest.To one he said that he would "pluck out the heart" of any man who came to his door to serve papers, and to another that "no man could come through that door and take me.They will take me over their dead bodies, feet first."

There was evidence to the effect that in the morning of March 16, before the arrival of the constable, the defendant had typed or caused to be typed a letter and carbon copy thereof addressed jointly to C. McCredie, chief of police of Medford, and to Captain Bown of the state police.The letter and the copy were placed in separate envelopes and addressed respectively to the chief of police and to the state police officer.In this letter the defendant stated that he had committed no crime and would refuse to submit to arrest, and that any effort to arrest him would result in bloodshed.These letters were found unopened, according to some of the testimony, on a mat on the front porch of the Banks home, about the time that the body of Prescott was removed therefrom by officers.

The first assignment of error is based on the admission in evidence, over the objection of the defendant, of the .32-caliber automatic pistol, holster, belt of cartridges, and loose cartridges found on the cot in the hallway of the defendant's house.The ground of the objection was that such evidence was "wholly incompetent, irrelevant and immaterial, and not within any of the issues of the case, *** not binding upon the defendants or either of them," that the evidence did not in any way connect these articles with the defendants, and that they were found in the Banks residence long after the two defendants had been removed therefrom and many other people had been within the house.In their argument, counsel for the defendant contend that the defendants admitted that Prescott was killed by a shot from the Newton rifle which had previously been introduced in evidence and that both defendants testified that they did not own or have any knowledge whatever of the presence within the house or the ownership of the pistol and ammunition found on the cot.

Whatever the defendants may have admitted or testified to would not in any way relieve the state of the necessity of proving its case.The only plea of the defendants was that of not guilty, and, until their testimony was given, the state was in no position to know what might be admitted by them.In order to convict the defendants of murder in the first degree, it was necessary to show that they had purposely and of deliberate and premeditated malice killed Prescott.To substantiate this charge, testimony was introduced to show that the defendantLlewellyn A. Banks had made certain threatening statements tending to indicate that the crime was premeditated.Evidence of preparedness on his part to resist arrest and to carry out threats previously made by him was material and relevant to prove the elements of the crime with which he was charged.As said in State v. Wintzingerode,9 Or. 153: "So if neither of the guns in evidence had actually been used in committing the murder, but the circumstances under which the prisoner obtained and kept possession of them would justify the inference that he had obtained them for that purpose, such circumstances might be shown as bearing on the question of his intent."

There was no direct evidence connecting the defendants or either of them with the ownership of the pistol and ammunition found on the cot.If those articles had been found before the house had been left open to the public, there could be no question that their admission would have been material, as in that case the jury could at least have inferred from their presence in the house that they were owned or under the control of the defendants.The mere fact that they were found a few hours later, on the day of the commission of the crime, would not of itself render incompetent their admission in evidence.On this point we find the following statement in 16 C.J. 619, § 1225: "The fact that a considerable length of time elapsed after the crime before the weapon or instrument was found, or that in the meantime third persons may have had access thereto, goes to the probative force, but not the admissibility of the evidence."

With reference to a similar question, the opinion in the case of Commonwealth v. Retkovitz,222 Mass 245, 110 N.E. 293, 294, held: "There was evidence that the defendant had threatened to shoot the woman.Thereafter, he was arrested and a revolver, found at that time under the stairs of the first floor of the house, on an upper floor of which he had a room, was admitted in evidence.In this there was no error.Whether it was under...