State v. Cor

• Citation: 396 P.2d 86,144 Mont. 323
• Decision Date: 22 September 1964
• Docket Number: No. 10462,10462
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Paul D. COR, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

Page 86

396 P.2d 86

144 Mont. 323

The STATE of Montana, Plaintiff and Respondent, v. Paul D. COR, Defendant and Appellant.

No. 10462.

Supreme Court of Montana.

Sept. 22, 1964.

Rehearing Denied Nov. 16, 1964.

J. B. C. Knight, Knight & Dahood, Anaconda, Wade J. Dahood (argued), Anaconda, for appellant.

Robert J. Holland and David L. Holland (argued), Butte, Donald A. Douglas (argued), Helena, for respondent.

JOHN C. HARRISON, Justice.

This is appeal from a verdict of guilty of murder in the first degree in a case tried in Silver Bow County before the Honorable John B. McClernan. The defendant was sentenced to life imprisonment in the State Penitentiary. This appeal seeks a reversal of the judgment and sentence entered thereon.

The appellant contends that the trial court made numerous errors, which he combines into eight specifications of error in this appeal. It is our view that the dominant error alleged is the insufficiency of the evidence. Appellant moved at the close of the State's case to advise the jury to acquit on the grounds of lack of evidence, and again at the close of the case a motion for a directed verdict and a motion to advise the jury to acquit were made by the appellant on 'insufficiency of the evidence as a matter of law to justify submission of the case to the jury.' All motions were denied.

It is appellant's contention that the trial court erred in denying its motions and that the verdict must be set aside.

There is no serious contention that the State failed to establish the corpus delicti. While not going into the details of the case at this point we hold that by the evidence, both direct and circumstantial in nature, the State proved, prima facie, that Sheri McEwen died as a result of a criminal act.

The important issue is whether the State established, prima facie, that it as Cor who committed the act. The evidence in this regard was virtually circumstantial, there being no witnesses to the homicidal act, no confession, no fingerprints, no weapon found--a situation not uncommon in homicide cases.

A careful and thorough consideration of the record convinces us that there is more than sufficient evidence to support the verdict of the jury and the judgment entered thereon, and this even though the evidence is circumstantial in nature. To give meaning to this conclusion and to demonstrate its application to the case before us, the evidence given at the trial will be set forth in some detail. However, before doing so it is deemed advisable to comment at the very outset as to the inherent nature of circumstantial evidence, and its standing in a criminal proceeding.

In 20 Am.Jur., Evidence, § 273, p. 261, is set forth this general rule:

'In the absence of statutory enactment * * * it may be stated as a general rule that whatever may be established by direct evidence in a criminal case may also be established by circumstantial evidence. [noting that] The rule is one of necessity; [as] only few convictions could be had if direct testimony of eye witnesses were required.' This is a common sense rule necessitated by the obvious, i. e., crimes are frequently committed at a time and place where no observers are present and though some accused of crime do 'confess' many do not. This same authority states that 'Circumstantial evidence in criminal cases may be fully as satisfactory as positive testimony and will sometimes even outweigh it.'

The foregoing rule is not new but one of long-standing. Vol. 2, Wheeler's Criminal Cases at page 462, note, quotes Justice Park in his charge to the jury in the case of King v. John Thurtell (Jan. 1824):

'The eyes of Omniscience can alone see the truth in all cases; circumstantial evidence is there out of the question; but clothed as we are with the infirmities of human nature, how are we to get the truth without a concatenation of circumstances? Though in human judicature, imperfect as it must necessarily be, it sometimes happens, perhaps in the course of one hundred years, that in a few solitary instances, owing to the minute and curious circumstances, which sometimes envelop human transactions, error has been committed from a reliance on circumstantial evidence; yet this species of evidence, in the opinion of all of those who are most conversant with the administration of justice, and most skilled in judicial proceedings, is much more satisfactory than the testimony of a single individual, who swears he has seen a fact committed.'

Circumstantial evidence is not always inferior in quality nor is it necessarily relegated to a 'second class status' in the consideration to be given it. The very fact it is circumstantial is not a sufficient allegation to justify a reversal of the judgment for such evidence may be and frequently is, most convincing and satisfactory. In any criminal case, evidence that is material, relevant and competent will be admitted, 'nothing more and nothing less.' The test is whether the facts and circumstances are of such a quality and quantity as to legally justify a jury in determining guilt beyond a reasonable doubt. If such be the case, then the court should not, indeed cannot, set aside the solemn findings of the trier of the facts. State v. Espelin, 106 Mont. 231, 76 P.2d 629; State v. DeTonancour, 112 Mont. 94, 112 P.2d 1065.

In the light of these principles what are the known facts in the instant case which when tied together led the jury to its conclusion that Paul D. Cor murdered Sheri McEwen and because of their incriminating nature exclude every rationale (i. e., reasonable) hypothesis other than that of guilt? Let us examine the record.

On the evening of June 10, 1960, Sheri McEwen, a fifteen year old girl, disappered from her home in Walkerville, Montana. Her badly decomposed body was found on June 25, 1960, some one and one-tenths miles from the home of the defendant, which was located outside the Butte city limits in a rural area. The defendant was the last known person seen with the deceased. He called at her home between 9:00 and 9:30 p. m. the evening of June 10th and asked her out, to go riding. She left her home at 9:30 p. m. and in spite of the numerous witnesses who came forward, much later, to say they had seen her alive after June 10th this was the last time she was seen alive by anyone other than the defendant Paul D. Cor.

When her body was found on the 25th, partially covered by sand, it was determined that she had been shot five times in the back. Four bullets penetrated the lower part of the spine; two on each side low and close to the spine, and one in the base of the skull. The pathologist, Dr. Raymond Peterson, gave the cause of death as multiple bullet wounds in the back. In his opinion she could have run for some distance with some or all of the bullet wounds in her back, but not with the head would. This fact is important in considering later evidence introduced by the State. In addition, Dr. Peterson testified that the girl's stomach contained a cupfull of partially digested food which included well preserved slices of pineapple. Sheri's mother testified that she had eaten a pineapple and cottage cheese salad between 4:00 p. m. and 6:00 p. m. on the 10th. The pathologist's testimony concerning this food was as follows:

'Q. Besides how much the body decomposed, Dr. Peterson, this evidence relative to the contents of the stomach, would that give you any indication of how long this girl died after she had taken in her last meal? A. Yes, we can say pretty definitely that she died within a few hours after she had eaten the pineapple.

'Q. Now, relative to these questions that Mr. Shone has asked you about possibilities of six or seven hours, what are the probabilities? A. Well, the probabilities are that she died within a few hours after the pineapple was ingested, because after death the digestive process stops and then the food is preserved in more or less the same state for some period of time until other degenerative processes set in.'

Testimony was also given by Dr. Peterson that although the body was badly decomposed no evidence of pregnancy was found. In attempting to ascertain the approximate date of death, the doctor stated that it was impossible to pinpoint the exact time of death due to the variables of weather, cover and other conditions, however he did testify as follows:

'Q. Now, from your examination of the body and the amount of deterioration present could Sheri McEwen have been dead since the night of June 10, 1960? A. Yes.

'Q. There is nothing inconsistent in those findings at all? A. No, sir.'

In addition to testifying about the condition of the body, Dr. Peterson testified that three bullets were removed from the body and that they were apparently .22 caliber although two of the bullets were deformed there was one well preserved and it was later identified by Mr. Poppleton, an F.B.I ballistics expert as a .22 caliber bullet. He also testified that the other two bullets were of the same caliber.

The testimony of numerous witnesses was that the Cor family had a .22 caliber Iver Johnson hand gun that had been around the house for several years and that this gun disappeared about the time of the death of Sheri and had never been found.

In June 1960, Paul D. Cor was 21 years of age. He had lived with his family in Butte, Montana, since the age of three. He attended the local schools and completed his Sophomore year in high school. In 1956 he enlisted in the Marine Corps from which he was discharged into the reserves in January of 1959. He had an honorable discharge. He returned to Butte when discharged to live with his family. During this period he held several jobs and in June of 1960 was unemployed though he helped his parents look after the Butte Trap and Skeet Club where the family lived. During the period prior to June 10th he had dated Sheri McEwen. That evening he drove up to the McEwen home in Walkerville, a town immediately adjacent to Butte, in a 1952...