State v. Clark

• Decision Date: 15 March 1921
• Parties: STATE v. CLARK.
• Court: Oregon Supreme Court

196 P. 360

99 Or. 629

STATE v. CLARK.

Supreme Court of Oregon

March 15, 1921

In Banc.

Appeal from Circuit Court, Lane County; G. F. Skipworth, Judge.

Martin A. Clark was convicted of manslaughter, and he appeals. Affirmed.

The defendant was indicted by the grand jury of Lane county upon a charge of murder in the second degree alleged to have been committed on July 25, 1919, by unlawfully, purposely, and maliciously shooting one Charles L. Taylor with a rifle. He was tried before a jury and found guilty as charged, but the verdict was set aside and a new trial granted; the reason given by the court for such action being that there was no evidence to justify the verdict. Thereafter he was again put upon trial and a verdict of manslaughter was rendered accompanied by a recommendation for leniency. Upon this verdict he was sentenced to imprisonment in the penitentiary for a period of four years, from which judgment he has appealed to this court.

J. S Medley and A. C. Woodcock, both of Eugene, and J. K. Weatherford, of Albany (Weatherford & Wyatt of Albany, on the brief), for appellant.

L. L. Ray, of Eugene (O. H. Foster, of Eugene, on the brief), for respondent.

McBRIDE J. (after stating the facts as above).

The evidence in the case is purely circumstantial and covers nearly 1,000 pages of manuscript. The appeal is based to a great extent upon the assumption that there is no evidence to justify the verdict, and a discussion of the principal points in the evidence adduced by the state is therefore necessary. The statement in the brief of the state consumes 40 pages of the brief and would occupy a like space in the reports. The statement by defendant consumes 12 printed pages, and both are in the main fair, although both are colored more or less by conclusions drawn by the respective counsel from the effect of the evidence rather than being a succinct synopsis of the testimony. Bearing in mind that it is not the duty of this court to determine the weight of testimony or to compare conflicting testimony introduced by the parties, but simply to determine whether or not there was any testimony introduced by the state reasonably tending to show that the defendant killed the deceased and that such killing was manslaughter, the writer presents this summary of the evidence which the state claims justified the verdict.

The scene of the killing was inside of the national Cascade forest reserve and a short distance west of the summit of the Cascade Mountains, upon the flank of what is known as Scott Mountain, a somewhat prominent peak the dome of which is situated about 2 1/2 miles in a northwesterly direction from the nearest point on the county road leading from the McKenzie bridge which spans the McKenzie river about 22 miles below and southerly from the above-mentioned point, which is known as "Pole Bridge," and which by the road is about 4 miles in a southwesterly direction from the summit of the Cascade range. The road which leads across the Cascades into eastern Oregon is within the Cascade forest reserve, and at the time of the killing was being worked in the vicinity of Pole Bridge by the forest reserve authorities in co-operation with the Lane county authorities. Smith Taylor, not a relative of the deceased, was general superintendent of the work, and Charles L. Taylor, the deceased, had supervision of the work in the vicinity of Pole Bridge. In June, 1919, Charles L. Taylor had employed the defendant with his team to work upon the road, but later had discharged him for the real or alleged reason that the work should be given to taxpayers residing in the vicinity of the road.

The state, which prosecuted vigorously on the theory that the killing was not only done by the defendant but was one of purpose and malice, to show motive introduced evidence which in some degree indicated that defendant was dissatisfied with the reason given for his discharge and resented it as unfair to himself. But as the verdict of the jury negatived a malicious or willful killing, that branch of the case need not be pursued further than to say that, while some evidence of a possible motive might be deduced, it is far from convincing to the writer, and it is evident that the jury took a similar view.

The verdict of manslaughter reduced the discussion of the facts to two propositions: (1) Did the state introduce evidence tending to show that defendant shot Charles L. Taylor? (2) If that proposition is established, is there any evidence tending to show that the killing was under such circumstances as to constitute manslaughter as defined by section 1898, Or. L., which reads as follows:

"If any person shall, in the commission of an unlawful act, or a lawful act without due caution or circumspection, involuntarily kill another, such person shall be deemed guilty of manslaughter."

These propositions involve a discussion of the circumstances attending the killing. On the morning of July 23, 1919, at the request of Smith Taylor, who was supervising the work, the defendant, who lived on what is called the Fraker place four miles below McKenzie Bridge, started with his wagon and team to go to Pole Bridge to work. From McKenzie Bridge or near there he was accompanied by deceased, who also had a team attached to a road grader. It was the understanding that there would be eight days' work excluding Sunday and including the time occupied in going and returning. Defendant took with him a 30-30 caliber Winchester rifle, which was the only gun in the crowd at the start, but after a discussion between deceased and defendant as to the necessity of securing "camp meat" deceased borrowed a 30-30 Winchester and seven cartridges from the Swartz brothers, who reside on the road at a place called "Lost Creek Ranch." In the company besides deceased and defendant were J. O. Lewis, Walter Boone, Doug Love, and Howard Wise, a 16 year old nephew of deceased. There were on the wagon provisions for the party, and eight bales of hay deemed sufficient to feed the horses the nine days the party expected to be absent. After passing Lost Creek Ranch the party went on to a place called White Branch and there camped for the evening. Here an evening deer hunt was planned by defendant and deceased, but after a short hunt they returned to camp without having secured any game. The next day the party drove to Pole Bridge and camped, and defendant and deceased again started out to hunt, intending to remain out all night. Before starting they each discharged one shot from their guns for the purpose of obtaining empty cartridges to use as whistles in order to keep in touch with each other while hunting. Defendant says that he also fired two shots at a porcupine at the "dry lake" where they camped for the night, and later these two empty cartridge shells were found at that spot. They both bore the peculiar markings to which reference will hereinafter be made.

When Taylor left Pole Bridge with defendant was the last time he was seen alive by his associates. What the parties did thereafter depends wholly upon the statements of the defendant and the circumstances hereinafter detailed.

The defendant returned to the camp at Pole Bridge the next morning, which was July 25, made no inquiry about his companion, declined to take coffee at a camp of engineers which was near his own camp where he prepared his breakfast, and went to work on the road, not coming in contact with any of his associates until after the lunch hour. When he met them at about 1 o'clock p. m. he did not say anything about deceased until Boone asked him where Taylor was, and he answered that he did not know, that they had separated in the morning and he had not seen him since, and gave no further account of the hunt or of the whereabouts of the deceased until that evening (July 25), when in answer to questions by Boone he stated that he and deceased had camped on the south side of Scott Mountain by two little lakes (known in the testimony as "Tenas Lakes"); that in the morning they separated, Taylor to hunt toward the east and defendant toward the southeast; that they separated on the evening before when going in toward Scott Mountain and were to meet at a certain place on Scott Mountain; that defendant reached there first; and that they came together by means of a signal whistle.

Boone testified that as soon as the working party got in, that evening, defendant went immediately to his team. His testimony indicates that defendant displayed little anxiety at the prolonged absence of deceased. Doug Love testified substantially to the same state of facts. Howard Wise testified that after the working party came into camp that night defendant said that he did not know what had happened to Taylor, adding that he was too good a woodsman to be lost. He remarked that "something has happened to him or he has been shot." Wise fired three signal shots with defendant's gun, and later Doug Love fired one shot. It does not appear from the testimony of these witnesses that the shooting was suggested by defendant, and nothing beyond the expression above quoted indicates that at any time he showed any anxiety or emotion over the nonappearance of his hunting companion. So far as the state's testimony indicates, he was perhaps the most indifferent member of the party as to Taylor's whereabouts.

The next morning, July 26, he went in company with J. O. Lewis to search for Taylor, but instead of looking for him in the vicinity where Taylor would most probably have hunted, as indicated by the direction taken by him when, as defendant claims, they separated, they went southerly to a trail or road leading from the main road in a northerly direction toward Scott Mountain and followed the main road to the vicinity of the lakes where defen...