State v. Butchek

• Decision Date: 23 February 1927
• Citation: 253 P. 367,121 Or. 141
• Parties: STATE v. BUTCHEK.
• Court: Oregon Supreme Court

253 P. 367

121 Or. 141

STATE v. BUTCHEK.

Supreme Court of Oregon

February 23, 1927

In Banc.

Appeal from Circuit Court, Multnomah County; Walter H. Evans, Judge.

John Butchek was convicted of murder in the first degree, and he appeals. Affirmed.

This is an appeal from a judgment of conviction of the crime of murder. On appeal, the defendant asserts that the court erred in making certain rulings relating to the reception of evidence. He asserts that the punishment is cruel and inhuman, and that there is no evidence of deliberate and premeditated malice, as averred in the indictment; that the jury did not base its verdict upon the evidence; that, in arriving at the verdict, it neither followed the instructions of the court nor obeyed the law; and that the court erred in overruling the defendant's motion for a new trial.

Edward L. Fraley, of Portland, for appellant.

George Mowry and C. W. Kirk, Deputy Dist. Attys., both of Portland (Stanley Myers, Dist. Atty., and J. L. Hammersly, Chief Deputy Dist. Atty., both of Portland, on the brief), for the State.

BROWN J.

Prior to January 14, 1926, the defendant and his wife, Elizabeth Butchek, resided at 440 Benton street, Portland, Multnomah county, Or. About 11:45 a. m. of that day, the defendant walked into the Portland Police Station and, addressing one of the Portland police officers, said, "I have killed my wife." The officer asked, "With what?" The defendant answered, "With an ax." This statement was made in the presence of Police Inspector Theodore Schulpius, Captain Moore, and Inspector Craddock. The defendant then told the officials that the body of his wife was at their home, and, a few minutes later, Police Inspector Schulpius, accompanied by a retired police officer rushed to the scene of the alleged homicide. The house was securely locked, but Officer Schulpius, reaching in through a broken window unlocked the window, on the inside and gained entrance into the house. He found the body of Elizabeth Butchek lying on the left side, her face in a pool of blood and about four feet from her body lay a camping ax. Under the bed, he found a pair of bloody slippers belonging to the defendant. He testified that the top of the dead woman's head had been crushed in, but that it was hard to say how many wounds had been inflicted "on account of the condition of the body being all covered with blood." He testified that the furniture was in place, and that nothing in the house gave any indication of a struggle between the defendant and his wife. The officer remained at the house until the coroner came and took charge of the body.

Coroner Ross testified that, when he reached the scene of the homicide, the body of Mrs. Butchek was lying on the floor in the corner of a room at the foot of the stairs, with her face "in a large amount of blood." Concerning the wounds upon the body, he testified:

"There was from the forehead, about possibly a couple of inches above the eyes, clear over the top of the head, and down almost to the neck and back--I think I counted 14 separate cuts from the ax."

Dr Frank E. Menne, coroner's physician, performed an autopsy upon the body of the woman. As to the condition of the body, he testified:

"I found in the scalp tissue, that is, over the right side of the head, beginning shortly above the eye, and extending to the neck, 8 distinct cuts. These were, roughly, V-shaped or angular, and, as far as I remember, were all to the right of midline, and the skull was crushed and broken, and small pieces of the brain were seen in some of these wounds. On the shoulders and on the hands there were purplish and blue and black bruises. The skin was not broken. These were deep bruises."

He testified that, from all indications, the wounds had been inflicted by some blunt but cutting edged instrument, and that they were sufficient to produce death.

Inspector Schulpius testified that, when he returned to the police station from the scene of the homicide at about 12:30 p. m., the defendant was making a statement in response to questions of Deputy District Attorney Hammersly, in which he identified the hand ax, marked Exhibit A, as the ax with which he killed his wife. The officer testified:

"Q. What, if any, statement did he make about any quarrel or argument that he had had with his wife, as to whether there had been a quarrel or not? A. There had been.

"Q. Did he make any statement about her having made any attack upon him? A. He did.

"Q. What did he say about that? A. He said that she first attacked him with the broom and had hit him over the hand and wrist, and he had taken the broom away from her, but later she went and got the ax, and he took it away from her and, in turn, killed her with it.

"Q. Did he make any statement in regard to any previous difficulty that he had had with his wife? A. Yes, sir.

"Q. What did he say about that? A. About July of last year, he had had some argument with his wife, and at that time he had blacked her eyes, and she was in bed for three days."

As to the statement made by the defendant in answer to questions asked by the representative of the district attorney's office, the record discloses the following:

"I am J. L. Hammersly, the chief deputy in the district attorney's office. I am advised that you came up here at a quarter to twelve, to the detective department, and told the detective department that you had killed your wife. A. Yes, sir.

"Q. Are you willing to state the circumstances of this killing to us people (chief of police, court reporter, and others) here? A. Yes, sir.

"Q. Do you realize that any statement that you may make here concerning this killing that would incriminate you could be used against you, in the event you are prosecuted for this? A. Yes, sir; if I am the cause of it.

"Q. Are you willing to make this statement freely and voluntarily? A. Yes, sir.

"Q. With the understanding that no promises or inducements are being held out to you by the district attorney's office or the detective department or the chief of police or any one else? Do you understand that? We are holding out no inducements to you. You are making this statement of your own accord. A. Yes, sir. Could a fellow have an attorney? I have a few dollars in the bank.

"Q. That is not for this time. The question now is whether or not you are willing to make a statement to these people. A. Yes, sir.

"Q. How old are you? A. Forty-five. I will be forty-six in May. * * *

"Q. Where were you born? A. In Hungary, Austria-Hungary.

"Q. What is your occupation? A. A molder."

Referring to his wife, he stated:

"I told her, 'Go ahead. If you want to live with that man, go ahead, but I don't have to get out of Portland.' * * * I told the boy (one of the children) to get out of the place * * * because he was making the trouble. He told me if I think that is the cause of it he will go. That happened last week.

"Q. Tell us what happened this morning. A. She started fussing. She said I just came down to fuss.

"Q. What did you tell her? A. I told her she was a liar. * * * I told her she was going crazy about that guy, and if she wanted to go, she should go. I told her that, not once, but 50 times. I told her that, if she wanted to go, she should go. * * * She was in the front room, cleaning up. * * * I believe she was starting getting half crazy. * * * She was trying to get me out of the place. * * * She * * * got the broom and started hitting me. * * * I took the broom away and got her by the throat. Then I let her alone. She went upstairs and she came down, and I think she had the hatchet. * * * I was in the room. I thought, 'What the hell she was going to do with the hatchet.' I said, 'What are you going to do with the hatchet?' and she started after me and * * * I grabbed her. * * * There is a hall and steps going upstairs. I got her in there and got the hatchet away, and I started hitting her and killed her.

"Q. Where did you hit her? A. On the head.

"Q. Were you mad at the time you hit her? A. I was mad.

"Q. Didn't you know if you killed her you would be arrested? A. I know that. * * *

"Q. Did you know you would be punished for killing a person? A. I know.

"Q. Did you realize that it is wrong to take the life of another? A. I know it. I told her she should let me go, she could go and stay with that man. * * *

"Q. Where did you strike her with the hatchet? A. On her head. * * *

"Q. Did she die right there? A. I hit her several times, and she fell down."

He stated that, when he went on a trip to Aberdeen, his wife accompanied him to the depot and said goodbye. He further stated:

"Then she went out with that guy. I thought there must be something wrong between her and him, so I told the boys (fellow workmen), 'I am going home. I believe my wife is going out with another man;' * * * and I told the boys, 'I will be back single.' "

According to his statement, he then returned from Aberdeen to Portland.

On the trial, the defendant testified about the commencement of the trouble with his wife as follows:

"While we was living up there the trouble started. She got acquainted with a fellow by the name of Shelton. He is a brakeman on the Southern Pacific. She was going out with him. * * * I didn't caught them, but I know she was going out. * * * The trouble I had with her was all about him. * * * I don't know what is wrong with my wife. Something is wrong with her. She is fussing with me."

He then testified about finding three letters that had been adressed to his wife, and that she "thought it was just a joke, but it didn't look jokey to me, the way them fellows wrote. I found them letters."

In describing a previous difficulty with his wife over the brakeman, he testified that, when he brought up the subject of the brakeman to her, she called...