State v. Butchek

• Decision Date: 29 March 1927
• Parties: STATE v. BUTCHEK.
• Court: Oregon Supreme Court

254 P. 805

121 Or. 141

STATE v. BUTCHEK.

Supreme Court of Oregon

March 29, 1927

In Banc.

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

On petition for rehearing. Petition denied.

For original opinion, see 253 P. 367.

Edward L. Fraley, of Portland, for appellant.

BROWN J.

In his petition for rehearing, defendant renews his former assignments of error. These assignments were treated in the original opinion. However, owing to the gravity of the case we will notice his assertion of the absence of proof of deliberation and premeditation, and that:

"The evidence is all to the effect that there was no intention, no deliberation, no premeditation."

For a statement of the facts, see our former opinion. The evidence shows that the defendant committed an atrocious homicide. He seems to have been angered with his wife because of his suspicion that she was false to her marriage vows, and, on previous occasions, had accused her of criminal intimacy with another, quarreled with her, threatened her, and assaulted her. On the morning of the homicide, according to his own story, he called her a liar. She answered him with a broom which he took from her, and she then picked up the hand ax. This he also wrested from her, and, when she was fully disarmed, he rained blow after blow upon her head and neck with the hand ax until she fell to the floor bleeding and dying. Soon thereafter he left the house, but before going, searched the premises for a $5 bill that his wife had possessed the night previous.

The indictment in this case alleges a specific purpose to kill. However, in order to constitute murder in the first degree, there must also be deliberation and premeditation. But, like every other material fact arising on the trial, the formed design to kill may be established by circumstantial evidence which satisfies the minds of the jurors, beyond a reasonable doubt, of the existence of a previous purpose to kill. Here the law wisely calls to its aid, in the administration of justice, presumptive evidence. The trial begins with the presumption of the defendant's innocence. But, upon the proof of the commission of an unlawful act, the presumption is that such act "was done with an unlawful intent," and that the perpetrator "intends the ordinary consequence of his voluntary act." Or. L. § 799, subds. 1, 2, 3. When this defendant was intentionally beating his wife over the head with a hand ax, he was committing an unlawful act, the ordinary consequence of which is death.

The existence of deliberate and premeditated malice in the killer's mind is the result of a mental condition and is not subject to direct proof. For this reason its existence may be inferred from the tangible facts in evidence. 2 Bishop's Criminal Law, p. 511; Underhill on Criminal Evidence (3d Ed.), p. 709. As supporting this doctrine, see Wharton on Homicide, § 150, 2 Bishop's Criminal Law, § 673, Cyclopedia of Criminal Law, Brill, 1076, and 30 C.J. 142, 143, where it is held that deliberation and premeditation may be inferred, as a matter of fact, from the circumstances, act, conduct, language, the character of the weapon used, and the nature and number of wounds inflicted.

Neither is the question, How long did the defendant deliberate upon a premeditated design to kill, before the execution of the mortal strokes with the ax? but, Did he deliberate at all? State v. Ah Mook, 12 Nev. 369. The law does not attempt to fix a limit to the time which must elapse between the formation of the purpose to kill and its execution, in order to admit of a finding of the elements of premeditation and deliberation necessary to a conviction of murder in the first degree. Where a homicide has been preceded by a concurrence of design with an intention to kill, formed in cool blood, and these are followed by deliberation and premeditation--

"although they follow as instantaneously as successive thoughts can follow each other, the perpetrator may be guilty of murder in the first degree." Aszman v. State, 123 Ind. 352, 24 N.E. 123, 8 L. R. A. 33.

To similar effect, see People v. Sanchez, 24 Cal. 17; Mitchum v. State, 11 Ga. 615; State v. Dennison, 44 La. Ann. 135, 10 So. 599; King v. State, 68 Ark. 572, 60 S.W. 951, 82 Am. St. Rep. 307; Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528; Wharton on Homicide (3d Ed.) p. 167.

On this point, note the...