State v. Casey

• Citation: 108 Or. 386,213 P. 771
• Parties: STATE v. CASEY.
• Decision Date: 20 March 1923
• Court: Supreme Court of Oregon

213 P. 771

108 Or. 386

STATE v. CASEY.

Supreme Court of Oregon

March 20, 1923

In Banc.

Appeal from Circuit Court, Multnomah County; J. P. Kavanaugh, Judge.

Dan Casey was convicted of murder in the first degree, and he appeals. Affirmed.

Dan Casey was adjudged guilty of murder in the first degree, and sentenced to death as the penalty for his crime.

The grand jury of the circuit court of the state of Oregon in and for Multnomah county, by indictment, accused Casey, jointly with one John L. Burns, of the crime of murder. The charging part of the indictment alleges:

"Said Dan Casey and John L. Burns, on the 14th day of June, A. D 1921, in the county of Multnomah and state of Oregon, then and there being, did then and there unlawfully feloniously, purposely, and with deliberate and premeditated malice, kill one James Harry Phillips, by shooting him, the said James Harry Phillips, with a pistol contrary to the statutes in such cases made and provided and against the peace and dignity of the state of Oregon."

Casey demanded a separate trial, which was granted him, with the result above stated.

The defendant says the court erred:

In admitting into the record, over defendant's objection the testimony of the witnesses John P. Phillips and Herman G. Snider, consisting of declarations made by the deceased relating to the homicide;

In admitting, over defendant's objection, the testimony of Murphy to the effect that there were no other persons around the train when it reached Troutdale, Or., than those named;

In overruling objections to the introduction of certain exhibits as evidence;

In admitting certain evidence, over defendant's objection, and in rejecting certain proffered testimony;

In refusing to grant defendant's motion for a directed verdict on the ground of the insufficiency of the testimony, particularly as it related to the venue of the offense; and,

In charging the jury.

Charles W. Garland, of Portland (John C. Lane, of Portland, on the brief), for appellant.

George Mowry, Deputy Dist. Atty., of Portland (Stanley Myers, Dist. Atty., and Jos. L. Hammersly and Maurice Crumpacker, Deputy Dist. Attys., all of Portland, on the brief), for the State.

BROWN, J. (after stating the facts as above).

A clear understanding of the facts in this case is the best exposition of some of the legal questions presented by defendant.

This is a case of homicide, committed in Multnomah county, Or. At about the hour of 10 o'clock p. m. on June 14, 1921, James Harry Phillips, aged 52 years, a special agent of the Oregon-Washington Railroad & Navigation Company, while in the performance of his duty, was mortally wounded. He was taken to St. Vincent's Hospital, where his life expired in a little more than an hour after having been stricken down by a gunshot.

On June 15th, Dr. Frank R. Menne, coroner's physician, performed an autopsy on the body of the deceased, and found three bullet wounds: One about three inches to the left of the midline and about the region of the abdomen, one on the right arm, and another in the right hip. The bullet that entered to the left of the midline in the abdomen pierced the eighth rib. It ranged upward and entered the abdominal cavity, penetrated the large bowel, the first portion of the small bowel, the kidney, and then through the muscles of the back about an inch and a half from the midline in the back. The second wound the doctor described as penetrating the body of the deceased "three inches or so above the elbow, upward along the bone to the junction of the collar bone with the shoulder blade. This it shattered, destroyed. It then passed inward to the right of the neck, where the bullet was found. The wound in the right hip was simply beneath the skin, producing a furrow about six inches long beneath the skin." Death was caused from bleeding as a result of the fatal gunshot wound of the kidney.

Dan Casey and John L. Burns were accused of killing Phillips, and were apprehended on June 17, 1921, the third day following the homicide.

The record informs us that Casey and Burns first met near Glenn Falls, Idaho, in the autumn of 1920. Some time during February, 1921, Elizabeth Burns, the wife of John L. Burns, came to Portland and lived for a while at the home of Mr. and Mrs. A. C. Van Diver. Van Diver, Burns and Casey had all been switchmen. The Van Divers were former acquaintances of the Burns family, having met them in Gerber, Cal. Casey called on Mrs. Burns about three days after she came to Portland, and was made acquainted with Mr. and Mrs. Van Diver. He visited the Van Diver home on many occasions thereafter. The Van Divers were important witnesses in the trial of this case. Casey lived for a time at the Baxter Hotel. Mrs. Burns left the Van Diver home after living there about three weeks, and went to reside at the Baxter Hotel. While Mrs. Burns was living at the Van Diver home, she displayed two 38 Colt's revolvers; the numbers having been removed from both by filing. Later, the defendant Casey asked Mrs. Burns where his gun was. She answered: "I have them in my grip." She got the revolvers out and gave him his. That gun is marked Exhibit 32 in this case. Casey "fixed it up," loaded it and retained possession of it. When Mrs. Burns removed to the Baxter Hotel, she took the other Colt's revolver with her. A few days after her removal to the hotel, she was joined by her husband, John L. Burns, who came to Portland from Idaho upon his release from jail in the latter state. Some time in April, 1921, Burns and his wife assumed charge of a rooming house situated at 129 1/2 Russell street, a short distance from Van Diver's, and a few blocks from the Albina railroad yards. After their removal to that place, Casey joined them and took up his abode at the rooming house, but continued to call frequently at Van Diver's. The Burns family occupied rooms 14, 15, and 16, of the rooming house, and Casey occupied room 11, which is located across the hall from room 16 thereof. Van Diver said, in telling of Casey's visits to his house:

"He was down to my house quite frequently after they moved, and every day at my house when they first came to my house. He was there every day; ate meals at my house. * * * He came down to my house several times and planned on going out and sticking up fellows, and I told him I couldn't see it that way."

Witness further testified that Casey suggested robbing box cars.

Then follows the fatal night of June 14th, when Special Agent Phillips of the Oregon-Washington Railroad & Navigation Company, while engaged in preventing the freight cars from being looted, was shot down by persons who were burglarizing car No. 13 of extra east-bound freight train No. 708, at a point about 2 1/2 miles from Albina yards. Two men, one of them being very tall, were at the scene of the crime and fled immediately following its commission. Casey is very tall. The special agent was killed by a wound inflicted with a 38-caliber leaden ball. The revolvers of Casey and Burns were 38-caliber guns. The special officer was armed with a 38 Smith and Wesson revolver. He fired four shots at his assailants. The prints of blood found in various places in the direction in which the two men fled from the scene of the crime indicated that one of Phillips' assailants had been wounded. The wound that Phillips inflicted upon his assailant was made with a leaden ball fired from a 38-caliber revolver. On the 17th day of June, the third day after the shooting of Phillips, the defendant was arrested while in concealment under Burns' bed. He had a gunshot wound in his wrist, that had been made by a 38-caliber leaden ball. This wound was about three days old, and no older.

Casey claims an alibi. He says he was in and about the rooming house at the hour of the commission of the crime at Mock's Bottom. He accounts for his wounded arm with conflicting stories. He told a physician and surgeon who examined it on the day of his arrest that it had been snagged in an automobile accident. He told another physician who examined it on the 20th that he was shot on June 10th while engaged in a fight with a man at a moonshiner's still out from Vancouver, Wash. Notwithstanding the character of the wound, he dressed it himself. He explained that he was in hiding when found because he feared that he would be arrested for moonshining. It was shown by the state that Casey had no wound on his wrist during the time between the 10th and the evening of the 14th of June. According to his testimony, at least four persons were present when Casey says he was shot, but he produced nobody to verify his statement. The story that Casey was shot on June 10th, and by some one while engaged in a fight near Vancouver, Wash., or that he had that wound at all before the night of June 14th, was utterly pulverized by the prosecution. Casey likewise denied ownership or knowledge of his Colt's revolver, which was found, with spots of human blood upon it, concealed in an adjoining room from his.

Who wounded Casey in the arm, and where was he when he was shot, and why did he conceal the true fact? Let us further refer briefly to the record.

James Harry Phillips, the deceased, and Herman G. Snider, were both employed as special agents of the Oregon-Washington Railroad & Navigation Company, and worked together. On the evening of June 14, 1921, immediately prior to the departure of extra east-bound freight train No. 708, from the Albina yards, and pursuant to their duty, they examined the doors and seals of the cars making up that freight train. They found all doors of the cars closed, and seals intact. The train was in charge of Conductor Albert C. Murphy, and was scheduled to leave at 9:30 that evening. However, from the train...