State v. Brown

• Decision Date: 27 December 1971
• Docket Number: No. C--58424,C--58424
• Parties: STATE of Oregon, Respondent, v. Joe Cleophus BROWN, Jr., Appellant.
• Court: Oregon Court of Appeals

Page 1193

491 P.2d 1193

8 Or.App. 72

STATE of Oregon, Respondent, v. Joe Cleophus BROWN, Jr., Appellant.

No. C--58424.

Court of Appeals of Oregon, Department 2.

Argued and Submitted Dec. 1, 1971.

Decided Dec. 27, 1971.

Howard R. Lonergan, Portland, argued the cause and filed the brief for appellant.

John W. Osburn, Solicitor General, argued the cause for respondent. With him on the brief was Lee Johnson, Atty. Gen., Salem.

Before SCHWAB, C.J., and LANGTRY and THORNTON, JJ.

LANGTRY, Judge.

Defendant appeals from conviction of second degree murder. He was jointly indicted with Roger Allen Shirley for the homicide of one Tucker. ¹

The evidence was that Tucker had taken a Mercury automobile and five baggies of heroin belonging to defendant Brown and had not returned them or money for them to Brown; that Brown was looking for Tucker and according to two witnesses, 'he said that if he saw Bruce Tucker he would have to kill him' and 'He said once or twice, maybe, if he got his hands on him (Tucker) he'd kill him.' They testified that Brown had a gun with him, and, accompanied by Shirley, went looking for Tucker. When Brown found Tucker, a witness who was then present testified that Brown forced Tucker into a chair and with a small automatic pistol which he had cupped in his hand struck Tucker on the head twice. With the second blow the gun fired and Tucker slumped to the floor, his breath diminished, and Brown and Shirley departed.

Asserted errors are: (1) that a motion taking from the jury's consideration second degree murder should have been allowed; (2) that a motion for a directed verdict should have been allowed; (3) the statutory definition of the word 'malice' used in an instruction was wrong, and (4) that an instruction that less than an unanimous verdict could be returned was incorrect. The latter asserted error is rejected on authority of State v. Gann, 254 Or. 549, 463 P.2d 570 (1970).

(1). The defendant moved to take second degree murder from jury consideration because, he asserted, there was no proof of malice or purposefulness in the killing. Defendant relies upon State v. Davis, 1 Or.App. 285, 462 P.2d 448 (1969). In that case we stated that in ORS 163.020(1), which defines second degree murder to include a situation where any person kills another 'purposely and maliciously,' the use of the word 'purposely' means 'intentionally.' The point of defendant's argument here seems to be that the evidence only points toward a conclusion that Brown intended to punish the victim, not to kill him. The testimony about Brown asserting he intended to kill Tucker was enough, with the evidence of the physical facts, to take to the jury the question of what Brown's intention was.

(2). The facts upon which the second assignment of error is based are that the victim was taken to a hospital and kept alive by an artificial respiration machine which, until it was turned off, kept him breathing and his blood circulating. Defendant contends that turning the machine off was the act which terminated Tucker's life rather than the bullet wound. This contention is completely refuted by the testimony of Richard V. Crisera, M.D., who was in attendance at the time of Tucker's death and performed an autopsy upon him. This testimony was:

'Q. Did you determine what the cause of death was from your examination of the body?

'A. Yes.

'Q. Would you tell the jury what actually caused death?

'A. In my opinion the cause of death was a gunshot wound of the head with resultant damage to the brain which resulted in damage to the vital centers of the brain which control respiration and other body activites.

'Q. What type of damage did the--did the gunshot wound cause?

'A. The gunshot wound penetrated the skin of the scalp, passed through the skull on the left side, passed through both cerebral hemispheres, both sides of the brain, passed through the skull on the other side of the head and came to rest in the tissue beneath the skin on the right side * * *.'

Defendant asserts that Tucker's life could have been extended 'indefinitel...