State v. Evans

• Decision Date: 08 January 1924
• Citation: 221 P. 822,109 Or. 503
• Parties: STATE v. EVANS.
• Court: Oregon Supreme Court

221 P. 822

109 Or. 503

STATE v. EVANS.

Supreme Court of Oregon

January 8, 1924

In bank.

Appeal from Circuit Court, Wasco County; Fred W. Wilson, Judge.

Abraham Evans was convicted of murder, and appeals. Affirmed.

Abraham Evans was accused of the murder of James Doran. The homicide occurred on September 10, 1921. Evans was convicted of murder in the first degree. The jury did not recommend life imprisonment; and consequently the trial court pronounced judgment of death. The defendant appealed.

Abraham Evans, James Doran, and William H. Ducharme left Bend at about 8 o'clock a. m. on Saturday, September 10, 1921, in an automobile owned and driven by Evans. Doran and Ducharme had been working in a logging camp operated by the Brooks-Scanlon Lumber Company; they quit work and got their time on September 9th. Doran and Ducharme planned to go to a ranch, which is located near McMinnville, and was owned by Doran; and when they separated Friday evening they did so with the understanding that they would meet at the depot, and go by train to McMinnville. Doran was late Saturday morning and missed the train. Ducharme did not board the train because of the nonappearance of Doran. In the meantime Doran had met Evans and the latter, it appears, had offered to take Doran and Ducharme with him in his car. Ducharme says, and all the circumstances indicate that it was understood, at least tacitly, that Doran and Ducharme were not to be under any obligation to pay fares for their ride. Evans with his two passengers arrived at The Dalles Saturday night at about 8 p. m., and Doran and Ducharme alighted at the Glenwood Hotel, leaving in the car two packs which they had brought with them. After Doran and Ducharme had been in the hotel a few minutes, Evans came to the hotel and asked for and received from Ducharme $3; and at that time Evans represented that he had a friend who lived a short distance out of town and that this supposed friend would be disappointed if he (Evans) did not stay with him that night; and after some discussion Evans persuaded Doran and Ducharme again to get in the car, and to accompany him to the home of the supposed friend. Evans drove out of town about three miles, and stopped the car at the side of a road which was traveled but little, and with his two passengers alighted from the car and started to go to the supposed home of the alleged friend. Soon after they alighted from the car Doran was shot three or four times, and was killed, and Ducharme was shot once in the shoulder. Ducharme testified that Evans did the shooting. Ducharme ran and escaped, and he made his way to the home of a farmer; and subsequently word was sent to Sheriff Levi Chrisman at The Dalles. The body of Doran was found early Sunday morning outside of the road, and about 40 yards from where Evans had stopped the car.

At about 10 p. m. Saturday night Evans drove into the Motor Service Garage at The Dalles and left his car there, and then went to the Chapman boarding house, where he paid $1 for a room. The next morning, Sunday, Evans got his car, and left The Dalles, intending, as the evidence indicates, to return to Bend. Sheriff Chrisman, upon receiving word of the crime at once drove to the scene of the homicide. Ducharme accompanied Sheriff Chrisman back to The Dalles, and stayed at the Glenwood Hotel the rest of the night. At some time on Sunday Evans was arrested at Madras. It is a reasonable inference to conclude that Evans, when are rested, was returning to Bend, where he and his family lived. Sheriff Chrisman, upon receiving word of the arrest of Evans, went to Madras, arriving there Sunday evening Sheriff Chrisman remained in Madras over Sunday night, and Monday morning he started with the defendant for The Dalles, are riving there about 4:30 p. m.

Sheriff Chrisman says that he had inquired of Evans whether he knew Doran and Ducharme, and, since "he didn't seem to know them," he (Chrisman) took Evans to the coroner's office or morgue Monday evening so that Evans could view the body of Doran, and thus enable the sheriff to determine whether Evans did or did not know Doran. In the meantime a messenger had gone for Ducharme, and after the expiration of some time Ducharme appeared at the coroner's office or morgue, where Evans was still detained by the sheriff. After having been compelled to remain at the morgue in the presence of the body of Doran for about an hour, Evans was again taken to the jail. The next day, Tuesday, an attorney, who appears to have been representing Evans at that time, called at the jail, and saw Evans twice, once in the morning and again in the afternoon. Early Wednesday morning, when the jailor came to feed the prisoners, Evans asked the jailor to send for the sheriff and district attorney, and stated that he wished to tell all the truth. The sheriff and district attorney were sent for, and soon after their arrival the defendant made a confession revealing all the details, and acknowledging his guilt.

W. P. Myers, of Klamath Falls, and John Gavin, of The Dalles, for appellant.

Francis V. Galloway, Dist. Atty., of The Dalles, for the State.

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

In State v. Hecker, 221 P. 808, recently decided, we examined all the arguments made against the validity of the constitutional amendment of 1920 restoring capital punishment, as well as all the arguments advanced in support of the notion that no statute exists prescribing the method of executing the death penalty. We decided in State v. Hecker that the constitutional amendment of 1920, designated as article 1, sections 37, 38 (Laws 1921, [109 Or. 508] p. 6) had been regularly adopted, and that the method of executing the death penalty is prescribed by statutory authority; and, consequently, it is not necessary again to discuss the contentions mentioned.

The defendant insists that the indictment charges two crimes: (1) Murder in the commission of robbery; and (2) an assault with a dangerous weapon. And the argument of the defendant goes to the extent of asserting that the indictment does not charge murder in the first degree, but that it charges murder in the second degree in the commission of a felony other than rape, arson, robbery, or burglary. The indictment, omitting some of the formal parts, reads thus:

"The said Abraham Evans on the 10th day of September, A. D. 1921, in the county of Wasco and state of Oregon, then and there being, and then and there being unlawfully and feloniously engaged in the commission of robbery, by then and there being armed with a dangerous weapon, to wit, a gun loaded with gunpowder and balls; a more particular description of said dangerous weapon being unknown to this grand jury; did then and there commit an assault with said dangerous weapon upon one James Doran, the said James Doran then and there being within shooting distance of the said dangerous weapon, with intent then and there had by the said Abraham Evans, if resisted, to kill or wound the said James Doran; and then and there unlawfully and feloniously took from the person of said James Doran, and against his will, paper currency and divers coins, lawful money of the United States, the denominations, kinds, and amounts of which are unknown to this grand jury. And the said Abraham Evans, while so then and there engaged in the commission of said robbery, in the manner aforesaid, did then and there by his act, purposely, unlawfully, and feloniously kill the said James Doran, by shooting him, the said James Doran, with said dangerous weapon. * * *"

Our Code, section 1893, Or. L., reads thus:

"If any person shall purposely, and of deliberate and premeditated malice, or in the commission or attempt to commit any * * * robbery, * * * kill another, such person shall be deemed guilty of murder in the first degree."

It will be observed that the language is "any" robbery. "Assault and robbery, being armed with a dangerous weapon," is defined by section 1920, Or. L., while "robbery by putting in fear, not being armed with a dangerous weapon," is defined by section 1921, Or. L Our Code prescribes the form for an indictment charging a killing in the commission of a robbery. The form so prescribed is form No. 2, vol. 1, Or. L. p. 1346. It will be observed that this form begins thus: "Was engaged in the commission" of robbery "by (stating it, as in an indictment therefor)." Form No. 10 is the form for an indictment charging robbery, being armed with a dangerous weapon. An examination of...