State v. Evans

• Decision Date: 31 May 1933
• Citation: 22 P.2d 496,143 Or. 603
• Parties: STATE v. EVANS et al. [*]
• Court: Oregon Supreme Court

22 P.2d 496

143 Or. 603

STATE v. EVANS et al. ^[*]

Supreme Court of Oregon

May 31, 1933

Department 2.

Appeal from Circuit Court, Wallowa County; J. W. Knowles, Judge.

Frank Evans and another were convicted of unlawfully possessing elk meat, and they appeal.

Affirmed.

The defendants were jointly indicted, tried, and convicted of the crime of unlawfully possessing elk meat in Wallowa county Or., on September 12, 1932. From a judgment of sentence defendants appeal.

J. A Burleigh, of Enterprise, and John H. Carson, of Salem, for appellants.

Robert V. Chrisman, Dist. Atty., of Enterprise, for the State.

BEAN Justice.

Defendants assign as error misconduct of the district attorney in making his opening statement to the jury to the effect that at the time of the arrest the defendants put the officer making the arrest "through an ordeal."

The circumstances bearing on the case, as the testimony indicated, which it seems necessary to refer to, are as follows: On September 3, 1932, the defendants came to Wallowa county and obtained a fire permit at the forest office at Wallowa, Or., to build a camp fire in the Joseph creek, Peavine, and Broady creek country in the north part of Wallowa county. George Rogers, state police officer, game division, for Wallowa county, upon being informed of this, went from Enterprise to Kirkland Springs in Wallowa county, Or., on September 11, 1932, to search for the camp of the defendants. Kirkland Springs is forty-two miles north of Enterprise, the county seat. On the morning of September 12, Rogers, in searching in that vicinity for the camp of defendants, met defendants about three miles from Kirkland Springs near Peavine creek, also known as Lupine creek. Evans was riding a gray mule, leading a brown mule, upon which there was a pack saddle and a bunch of gunny sacks. Acuff was walking. Defendants stated they were looking for horses and that their camp was on Joseph creek. At the time there were blood stains on the shirts and sleeves of both defendants. After Rogers parted from the defendants, they proceeded in a direction which was away from their camp, later discovered by Rogers, not on Joseph creek but on Peavine creek. Rogers discovered the camp about half an hour after the above meeting with the defendants. It was located about a quarter of a mile from the place where he first met the defendants. When Rogers arrived at the camp, defendants were sitting on a log in front of the camp with rifles across their laps and resisted his attempt to search their camp, but finally submitted to the search, following Rogers and covering him the while with their rifles as he made the search. In the camp of defendants Rogers found one and one-half fifty-pound sacks of table salt, two hanks of sack twine, and a gunny sack full of flour sacks, which had been recently bleached out and were still wet, and from just below the camp fire of defendants Rogers saw a drying rack, 204 feet above the camp fire of defendants. This rack was full of jerked elk meat in the process of being smoked and made into jerky. He found two flour sacks full of completely cured and jerked elk meat hanging on the rack, and the rack, which was 7' 3"' x 3' 9"', built of poles with a canvas cover over the top, was full of elk meat being processed into jerked meat. He then returned down the well-beaten trail from the rack to the lower part of the camp, and on the way found hidden under a log a stew kettle with a lid on. On lifting the lid off the kettle he found it was partly full of elk meat steaming. He then attempted to place the defendants, who were still pointing their rifles at him, under arrest, but they resisted for a half or three-quarters of an hour by covering him with their rifles. The defendant Acuff finally submitted to arrest, and the defendant Evans said he would appear in Enterprise on the following day. He and his wife packed up and left the camp and Rogers returned to Kirkland Springs with Acuff, whom he sent to Enterprise. Rogers, with two forest rangers and the wife of one of them, returned to the camp of defendants on Peavine creek and made a complete search of the camp and surrounding country.

From the testimony adduced in regard to the defendants resisting arrest and pointing their rifles at the officer, it would seem that the statement of the district attorney was a proper one, although it was mild. The evidence tended to show that defendants resisted the search and arrest by pointing their rifles at the officer, and the district attorney was warranted in stating that he expected to prove this, which was borne out by the testimony. 1 Brickwood, Sackett, Instructions (3d Ed.) 60, § 74; 2 R. C. L. 410, § 8; 16 C.J. 890,§ 2226; Underhill, Criminal Evidence (3d Ed.) 290, § 206; section 39-113, Oregon Code 1930. This section of the Code plainly provides that any hindrance or interference to such search shall be prima facie evidence of a violation of the law by the party or parties who hindered or interfered or attempted to hinder or interfere in such search or examination. There was no error of the court in allowing the statement by the district attorney.

Appellants assign error in the admission in evidence of plaintiff's exhibits, consisting of a stew kettle containing elk meat; a sack of salt and a half sack of salt; two flour sacks full of fresh elk meat ready to be smoked, and some other things above mentioned found in the camp of defendants; and the horns from the carcasses of two elk recently killed, found near the camp of defendants.

The main objection to these exhibits is that they were not all found in the possession of defendants. The testimony tended to show that these various exhibits, with the exception of the elk horns, were under the dominion and control of the defendants and were as much in their possession and control, if the testimony was believed by the jury, as though they had been found in the immediate grasp of defendants. The jury had before it a word picture of the whole camp, showing that there was a well-beaten trail leading from the tent and camp fire to the rack, where the meat was dried and tracks therein of hobnailed shoes similar to those worn by the defendants. All of the circumstances were delineated to the jury, and the objection is practically to the weight of the testimony and not to its competency. We think the exhibits referred to were admissible in evidence and that there was no error committed in regard thereto. The jury was informed that this was in the timber or woods of a forest reserve, and it was proper for it to have all of the circumstances, including the finding of two elk slain, from which the horns exhibited were taken.

Defendants assign as error the refusal of the court to give any one of the defendants' requested instructions Nos. 2 to 11, in regard to circumstantial evidence. The court instructed the jury, among other things, as follows: "I instructed you that circumstantial evidence is the proof of such facts and circumstances connected with or concerning the commission of the crime charged as tends to show the guilt or innocence of the party charged. If such facts and circumstances are sufficient to satisfy the jury of the guilt of the accused beyond a reasonable doubt, then it is sufficient to warrant a verdict of guilty." The court also charged: "No other conclusion but that of the guilt of the accused must fairly and reasonably grow out of the evidence, but the facts must be absolutely incompatible with innocence, and incapable of explanation upon any other hypothesis than that of guilt."

Defendants, by their requested instructions, contend that strong suspicion of defendants' guilt arising from circumstantial evidence is not sufficient to overcome the presumption of innocence in favor of defendants, citing State v. Johnson, 122 Or. 399, 403, 259 P. 423, and that circumstantial evidence will not support a conviction if the evidence be as consistent with the innocence of the defendants as with their guilt, citing State v. Glasburn, 116 Or. 451, 456, 241 P. 846; Underhill, Criminal Evidence (2d Ed.) 7, § 6. The jury might reasonably conclude from the evidence that the defendants were practically caught red-handed.

Among defendants' requested instructions in regard to circumstantial evidence, which we think is a fair representation of the others, is the fifth, which reads as follows: "I instruct you, Gentlemen of the Jury, that the test of the sufficiency of circumstantial evidence in a criminal case is whether the circumstances, as proven are capable of explanation upon any reasonable hypothesis consistent with the defendant's innocence, and if they are capable of such explanation, then ...