State v. Braley

Decision Date14 September 1960
Citation224 Or. 1,355 P.2d 467
PartiesSTATE of Oregon, Respondent, v. Harry William BRALEY, Appellant.
CourtOregon Supreme Court

J. Raymond Carskadon, Portland, argued the cause and submitted a brief for appellant.

Charles R. Harvey, Deptuy Dist. Atty., Portland, argued the cause for respondent. With him on the brief was Charles E. Raymond, Dist. Atty., Portland.

Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, O'CONNELL, GOODWIN and MILLARD, JJ.

O'CONNELL, Justice.

The defendant, Harry William Braley, was indicted for the crime of murder in the first degree in violation of ORS 163.010(1) for killing Judy Violet Knutson by stabbing her with a knife. The jury returned a verdict of guilty without recommendation for life imprisonment. From a judgment of death, an automatic appeal was ordered under ORS 138.810 (now ORS 138.410).

The fatal stabbing took place on Monday evening, May 19, 1958, in a rooming house in Portland in the presence of Mrs. Ella T. Landaker, the landlady, and her mother, Mrs. Theoline Olson. Defendant and the deceased, posing as husband and wife, had moved into a room on the second floor of the rooming house a few days before. On the evening in question, at about six o'clock, Judy, followed by defendant, came downstairs to the apartment occupied by Mrs. Landaker. Judy asked if she could use the telephone which was in the living room of Mrs. Landaker's apartment. The request was granted. A few minutes later Mrs. Landaker heard a commotion in the hallway. Mrs. Landaker then went to her mother's room which adjoined her apartment and a few minutes later she and her mother heard the defendant and Judy talking loudly and arguing. Mrs. Landaker returned to her living room and she observed that while Judy was in the process of making a telephone call defendant forced her to hang up the receiver. At this time, Mrs. Landaker said that Judy 'didn't seem to want to be around him. She seemed like she was trying to, oh, I don't know, get away from him.' The only conversation that was reported was Judy's statement, 'I wouldn't care, all I want is to see my daughter one more time.' There is nothing in the transcript to indicate what prompted this statement.

After the episode just related, Mrs. Olson joined the others in the living room. Mrs. Olson and Judy sat on the davenport and defendant sat in a chair across the room. Defendant left his chair, walked over to the davenport and asked Judy to go upstairs with him and then, without any provocation, struck her a severe blow in the face with his hand or fist. Judy said, 'Oh, Harry why do you do this to me.' Mrs. Landaker helped Judy to the kitchen where she applied ice packs to her face. Defendant came to the kitchen doorway and said, 'Is this it, Judy, is this it.' Apparently, defendant then went upstairs to his room, obtained a large pointed carving or butcher knife, and returned to the kitchen. Judy said, 'Harry, that's a dangerous weapon; give it to me.' Mrs. Olson testified that 'We started to talk nice to him and finally he gave us the knife.' She took it to her room which adjoined her daughter's room on the same floor. Defendant left, saying that he was going upstairs to the bathroom. He returned and Mrs. Olson learned that he had another knife, a small paring knife, which he had in his pocket and which he showed to her. She induced defendant to give up this knife also, after which she hid it under a dresser scarf in the hallway leading to the kitchen. Apparently, at this time defendant had regained possession of the carving knife which Mrs. Olson had brought to her room. Judy returned to the living room and, according to Mrs. Olson, the following occurred: '* * * her pocketbook was sitting there and he grabbed that and looked into it and she said, 'Harry, I haven't got no money.' And he just kind of gave a grunt and didn't answer her, aye, yes or no, but he just gave a grunt and went out for a while. Pretty soon he takes it again and she says, 'I haven't got no money, Harry' and he says, 'I know' and she said, 'What you want I haven't got.'' From time to time defendant kept insisting that Judy go upstairs with him. Mrs. Olson testified that 'he was just after that woman all the time. He just hollered Judy, Judy, all the time.' She reported that on one occasion he said, 'Come upstairs with me for five minutes, Judy, I want to talk to you; it will only take five minutes.' After this or a similar command, Judy said, 'I am afraid.'

Then defendant insisted that Judy go to a tavern with him and drink some beer. She said that she could not go as she was, referring to the condition of her blouse which was stained with blood from the blow on her face. Defendant said, 'Well, go upstairs and change your blouse and you will be all right.' Apparently, she had decided to accede to his command or request because she started to move toward the door following the defendant. Mrs. Landaker and Mrs. Olson also started toward the door, Mrs. Landaker with the plan to get defendant out of the room, lock the door and thus protect Judy from further harm. As they moved toward the door, Judy got behind Mrs. Landaker and Mrs. Olson. Mrs. Landaker was attempting to push defendant out when defendant quickly grasped the knife, swung around and thrust the knife into Judy. To do this defendant charged between Mrs. Landaker and Mrs. Olson to get at Judy. Mrs. Landaker tried to hold his arm back and in the process her finger was cut on the blade. Mrs. Landaker testified that, 'It happened so quickly, if my mother hadn't just moved off, he would have have stabbed her with that knife.' Mrs. Olson testified that, 'I seen the knife coming and I had to duck because I was afraid I was going to get it, and he stabbed her then right behind us.' Before she was struck, Judy cried out, 'Oh, Harry don't.' Three knife wounds were found on the deceased's body, indicating three separate thrusts of the knife.

The defendant left the rooming house holding the knife in his hand and walked to a tavern where he informed the bartender that he had stabbed his wife, or, as he testified, that he thought he had stabbed her. On the way to the tavern he had thrown the knife on top of the tavern before entering.

The foregoing roughly summarizes the essential facts immediately prior to and at the time of the killing. Much of the story, and perhaps the most important part of it from the standpoint of explaining such a brutal act, is not reported here, because it is not essential to the disposition of this case. The defendant does not deny that he stabbed and killed Judy Knutson. In the trial of the case his defense, apparently, was based upon the theory that because of defendant's intoxication and mental abberation he did not realize what he was doing or, at least, that he did not intend to kill the deceased.

The defendant, who took the stand, testified that he did not intend to kill Judy, that he loved her and that he could not recall the details of the scene at the time of the killing. His counsel asked him, 'Now, up until the time you wielded the knife, Mr. Braley, were you so drunk you didn't know what you were doing?' To this leading question defendant answered, 'I was drunk arguing, yes.'

Upon appeal six alleged errors are relied upon for reversal, several of which are now asserted in spite of the fact that at the trial the point was not raised by objection or exception. Generally speaking, a question not raised and preserved in the trial court will not be considered on appeal. State of Oregon v. Cory, 1955, 204 Or. 235, 282 P.2d 1054; State of Oregon v. Nodine, 1953, 198 Or. 679, 259 P.2d 1056; State v. Brinkley, 1909, 55 Or. 134, 104 P. 893, 105 P. 708; State of Oregon v. Abrams, 1883, 11 Or. 169, 8 P. 327. This rule is applicable in criminal as well as civil cases, State v. Avent, 1956, 209 Or. 181, 302 P.2d 549; State v. Foot You, 1893, 24 Or. 61, 32 P. 1031, 33 P. 537, and it applies even though the defendant was tried for the commission of a capital crime. State v. Kelley, 1926, 118 Or. 397, 247 P. 146, certiorari denied 273 U.S. 589, 47 S.Ct. 504, 71 L.Ed. 790; State v. Daley, 1909, 54 Or. 514, 103 P. 502, 104 P. 1; State v. Magers, 1899, 36 Or. 38, 58 P. 892; State v. Anderson, 1882, 10 Or. 448; O'Kelly v. Territory of Oregon, 1853, 1 Or. 51. The fact that appeal comes to us automatically under ORS 138.410 does not enlarge the scope of review. The rule has been relaxed on occasions, particularly in capital cases where 'the court, upon an examination of the entire record, can say that the error is manifest and that the ends of justice will not otherwise be satisfied.' State v. Avent, 1946, 209 Or. 181, 183, 302 P.2d 549, 550. We turn to a consideration of the errors recited by defendant.

The most serious defect in the proceedings was the court's failure to instruct the jury with respect to the legal significance of intoxication in adjudging the defendant's intent at the time he killed the deceased. The instruction relating to intoxication given by the court was as follows:

'Now, there is some evidence in this case tending to show that the defendant had been drinking heavily prior to the time of this incident, and was, at said time, in a state of voluntary intoxication. You are instructed that this fact, if you find it to be a fact, is not to be considered by you as a basis or reason for reducing the offense from murder in the second degree to manslaughter. Proof of voluntary intoxication alone is no defense to a charge of murder in the second degree, and the fact of being drunk or mental excitement or ungovernable rage which may be engendered by drinking intoxicating liquor, may not be considered by you to disprove malice or to reduce the offense to manslaughter.'

The error assigned is the court's failure to instruct the jury in accordance with the provisions of ORS 136.400, which reads as follows:

'136.400...

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