State v. Barnes

• Decision Date: 26 June 1906
• Citation: 47 Or. 592,85 P. 998
• Parties: STATE v. BARNES.
• Court: Oregon Supreme Court

85 P. 998

47 Or. 592

STATE v. BARNES.

Supreme Court of Oregon

June 26, 1906

Appeal from Circuit Court, Douglas County; L.T. Harris, Judge.

John C Barnes was convicted of murder, and he appeals. Affirmed.

W.W Cardwell and J.A. Buchanan, for appellant.

Geo. M Brown, Dist. Atty., for the State.

MOORE J.

The defendant, John C. Barnes, was indicted, tried, and convicted of the crime of murder in the first degree, alleged to have been committed in Douglas county, April 28 1905, by killing one William Graham, in some way and manner, and by some means, instruments, and weapons, to the grand jury unknown. He appeals from the judgment of death which followed, and his counsel contend that the court erred in refusing to instruct the jury, as requested, to return a verdict of not guilty, on the ground that the evidence, which is wholly circumstantial, is insufficient to warrant a conviction.

The entire testimony given at the trial is sent up with the bill of exceptions, from which it appears that on Monday, May 1, 1905, at about 10 o'clock in the forenoon, a human skeleton was discovered in a burning log heap, a few feet east of the right of way fence near the railroad, about a mile and a quarter north of Glendale. Nearly all the flesh had been consumed, and there remained of the framework intact only the skull, the vertebrae, and parts of the shoulder and of the hip bones. The structure of the skeleton indicated the death of a small person, but it was impossible to distinguish the sex. A soft black hat, having two matches stuck in the band, was found at the same time hidden beneath the loose bark of a stump near the fire . There were also discovered in the ashes about where the hips of the skeleton lay, a three-bladed pocket knife, and near it some nails that had probably been driven in the soles and heels of the shoes worn by the deceased. In the immediate vicinity were seen some dark spots on the grass, earth, and stones, supposed to be blood stains, and the grass appeared to be lodged, as if some object had been dragged over it. After quite a number of persons had visited the place where the skeleton was found, a leather belt and a purse were discovered in the brush about 40 feet from where the fire had been. It further appeared that Graham, the man charged to have been killed, was about five feet four inches in height, weighed about 140 pounds, usually had matches in his hat band, and always carried a large Colt's revolver in a holster made from a boot top and suspended by a leather belt. Notwithstanding the fiber part of the handle of the knife had been burned, George Wood, as a witness for the state, claimed to recognize it as Graham's property, saying he had given it to him. The hat was claimed to be identified as Graham's by S.H. Duley, who testified that he had seen him wear it. Jesse Clements testified that the belt found in the brush was the one worn by Graham by which his revolver was carried and which the witness recognized by the clasp of the girdle being loose.

The testimony tending to connect the defendant with the commission of the crime shows that he and Graham were gold miners who were acquainted with, and had lived near, each other on Dadd's creek, Douglas county, for several months until Thursday, April 27, 1905, when Graham moved across Cow creek to Tuller's creek, several miles westerly, and was last seen as he crossed the railroad going to his new residence. The defendant on the next day borrowed a Winchester rifle from a neighbor, telling him that he desired to shoot a wounded deer which he had seen. That evening, as he returned with the gun, he found two men at his cabin who had been hunting for stray cattle, to whom he stated that Graham claimed to be a "bad man," and referring to the latter he remarked: "If he makes a crooked move at me, I will kill him." He further stated to his visitors that they need not arise when he did the next morning for he was obliged to get up early so as to meet a man at a tunnel on the railroad. Barnes left his cabin Saturday morning about 4 o'clock, taking the rifle with him, and five hours thereafter he was in the town of Glendale, 10 miles southerly, where he paid a bill which he owed a merchant and received a sum of money in exchange for a piece of cast gold that had been molded by and belonged to Graham, the identity of which was unquestionably established. The defendant left that town soon thereafter, and was seen at several points as he walked northerly along the railroad to a section house near his home, where he secured his supper. He returned to Glendale that night and became intoxicated, leaving two packages in the saloon where he had been imbibing. The next day, Sunday, April 30th, he was seen on the railroad carrying a Winchester rifle, and, meeting a man who appeared as a witness at the trial herein, he told him he had been hunting, describing the route he claimed to have traveled. Barnes returned the rifle that day and paid the man from whom he borrowed it 10 cents for the cartridges he had used. About noon that day the defendant engaged one G.L. Hittsman to help him carry some provisions that had come by rail up a hill towards his cabin, and as they halted for a moment's rest Barnes, unwrapping a package, exhibited a revolver, whereupon his companion, referring to Graham, said, "You have got Bill's gun," and the defendant replied, "Oh! yes; I bought it from Bill." Sunday evening Barnes went south on the train towards Glendale. The next morning, May 1, 1905, which will be remembered as the day when the skeleton was found, he called at a saloon in that town about 5 o'clock and, waking the barkeeper, he secured a drink of whisky. At 1 o'clock that day he was about a mile and a quarter north of Glendale, where he met one W.H. Pruett, to whom he stated that Graham had gone to Mule creek, a tributary of the Umpqua river, prospecting, and that he had purchased from him some sluice boxes and was going to his cabin after them. Pruett told him the boxes referred to never belonged to Graham, but had been owned by another person from whom the narrator purchased them. Barnes, upon receiving this information, remarked: "I am so damned tired and sore that I won't go any further. When you see Bill (meaning Graham), tell him that I got this far with you and turned around and went back." Whereupon he departed. The defendant on Tuesday night told a hotel keeper at Glendale that Graham, possessing a few dollars, had gone to California, and, referring to the nails discovered in the ashes, he further said if Graham was found he would have on old rubber boots. The sheriff of Douglas county, on Friday, May 5, 1905, visited Graham's cabin, which was locked; but, opening it, he found the bed in order, some wearing apparel, provisions, dough mixed for bread, water left in pails, and two pairs of rubber boots. The following Sunday Barnes was apprehended at his cabin, underneath which there was then found wrapped in a gunny sack a pistol that was identified as Graham's, and referring thereto the defendant, though claiming to have owned the gun several years, said to the sheriff and to the men accompanying him: "I put the revolver there, and I did not expect you fellows to find it." At the time the arrest was made, the defendant's cabin was searched, and in emptying a sack of potatoes a chunk of tinfoil rolled out and fell to the floor; but, without any examination, it was picked up and placed with the potatoes in the sack which had contained them. The sheriff, about May 31, 1905, took the defendant's goods and provisions from his cabin to the house of a neighbor, who, taking potatoes from a sack which had been so brought to him, saw a piece of tinfoil which he swept with the dust into a fireplace where it remained until the 17th of the next month when, concluding to make solder of the foil, he picked it up and unrolled it, discovering inwrapped therein a diamond ring that had belonged to, and been worn by, Graham. The defendant gave no testimony at his trial and called only two hardware dealers, who as witnesses severally testified that the knife, the parts of which were found in the ashes, and the revolver that was discovered beneath Barnes' cabin were generally kept and sold by merchants engaged in their trade. It also appeared that while the defendant was incarcerated in jail awaiting trial on the charge of which he was convicted, he attempted to escape.

It is argued by defendant's counsel that the evidence hereinbefore detailed, which we deem a fair statement of that given at the trial, is insufficient to establish either the death of William Graham, the person charged to have been killed, or the criminal...