State v. Evans
| Decision Date | 19 October 1920 |
| Citation | 192 P. 1062,98 Or. 214 |
| Parties | STATE v. EVANS. |
| Court | Oregon Supreme Court |
Department 1.
Appeal from Circuit Court, Jackson County; F. M. Calkins, Judge.
Lark N Evans was convicted of assault and robbery, being armed with a dangerous weapon, and he appeals. Reversed and remanded.
Gus Newbury, of Medford, for appellant.
G. M Roberts; Dist. Atty., of Medford, for the State.
In substance, the theory of the state is as follows: On Saturday, September 13, 1919, about 5:40 o'clock in the afternoon, the prosecuting witness, White, was sitting in his taxicab near the Grants Pass Hotel at Grants Pass, Ore. At that hour the defendant engaged the owner of the vehicle to convey him and his wife across Rogue river. They went at once to the railway station, where they took on board the defendant's wife and their baggage, consisting of a grip and satchel, and proceeded on their way, White seated on the front seat, driving, and the defendant and his wife on the back seat. After having crossed the river and arrived at what is known as Savage Rapids, the defendant presented a pistol at the driver's head, compelled him to get out and go with the defendant into the brush, where the latter robbed him of $27 in money, forced him to get into the car and drive to a point in the hills near Jacksonville, in Jackson county, where the defendant took White into the brush, bound and gagged him, got into the car, and drove rapidly away with his wife. Arriving at Jacksonville, the defendant bought some gasoline in the presence of several men, disappeared, and was not heard of until he was arrested at Klamath Falls some time in October following. He was brought back to Medford, and as the result of an inquiry in the office of the district attorney he was discharged for want of sufficient evidence, and returned to Klamath Falls. He was indicted by the grand jury of Jackson county, and arrested in November. This indictment was dismissed, and a new one afterwards returned, upon which he was tried.
The state produced the evidence of several witnesses, who testified to seeing the defendant and his wife loitering about the railway station at Grants Pass during the afternoon of September 13; also a former acquaintance of the defendant's father, whom he met at Grants Pass, and who claims that this occurred on September 13.
On his part the defendant admits that he and his wife were at Grants Pass at the station during part of the day on September 9 four days before the date of the alleged crime, and that he met his father's acquaintance on the 9th, but contends that he left Grants Pass on train No. 53, going to Medford on the afternoon of the 9th, and was never again at Grants Pass. He had sought work at his trade as an automobile mechanic at Grants Pass, but without success. He secured employment at Medford, and claims that he was engaged at the latter place continuously from about September 10 to 17.
Sundry assignments of error are presented by the abstract, but the one principally relied upon is that of the court in refusing to grant a new trial on the ground of newly discovered evidence. Unquestionably, there was sufficient evidence to justify the verdict, for the prosecuting witness was very positive in his identification of the defendant as the man who robbed him. The defendant had the benefit of the testimony of Dewey Jones, who gave evidence to the effect that on September 9 he boarded the train out of Grants Pass en route to Medford in company with the defendant, and rode with him as far as the latter place, where the defendant and his wife left the train; also that of the witness Currie, who was bookkeeper for the Hines & Snyder garage at Medford, and who testified to the fact of paying the defendant part of his wages as an employé of that concern on September 13, in the shape of two small checks which had been paid in by customers of the establishment. It was admitted by the prosecution also that the defendant registered at the Hotel Holland at Medford on September 9. Still further, there was the testimony of the witness Kribs, a grocer, and Kizer, his clerk, to the effect that about half past 5 in the afternoon of the 13th the defendant purchased some groceries at Medford, and Kribs assisted him in carrying them to a house he had rented in that town.
As newly discovered evidence, the defendant offers the testimony of Milom Jones, to the effect that he left Grants Pass on a train No. 54, going north from Grants Pass, about 6 o'clock in the evening of September 13; that during the course of that afternoon he was at the railway station several times, endeavoring to engage accommodations on board that train, but that he did not see the defendant or his wife about there at all, although he had the opportunity to see them if they had been there. The defendant also propounds the testimony of W. E. Thomas, to the effect that on Saturday evening, September 13, between half past 6 and 7 o'clock he was riding with the defendant and the witness' father and mother at Medford. Again, it is proposed by the motion for a new trial to offer the evidence of Sam L. Sandry and Jerome Hilbert, to the effect that since the trial they have examined into their business records of dealings with the Hines & Snyder garage at Medford, and that the former is prepared to testify that on September 13 the defendant was working at the garage and did some work on a certain Chalmers car belonging to the Blue Ledge Mining Company. The testimony of I. A. Snyder, as shown by his affidavit in support of the motion for a new trial, is to the effect that between the time of the defendant's arrest and the trial the latter had inquired of him if there was any evidence within the affiant's knowledge, aside from the records of the garage, that would show that at the time of the commission of the crime the defendant was at Medford, and he was unable to give him any information, but since then he has discovered, as the result of investigation made by the affiant Sandry, that there was a transaction in which the defendant was concerned, about the purchase of a vacuum tank from another business house at Medford for the affiant's firm, that would show conclusively that he was at Medford at the time the crime was committed. There is a great wealth of affidavits, along similar lines, of different witnesses who are prepared to give detailed circumstances tending to show that the defendant was at Medford, as he claims, when the crime was committed, but which are too numerous to be noticed further in this opinion.
The opinion of the trial judge in denying the motion for new trial is set out in the brief of the district attorney, and discloses the ruling theory upon which the motion was denied, to the effect that since the adoption of the amended form of article 7 of the state Constitution (see Laws 1911, p. 7), the granting of a new trial is not discretionary with the trial court. The opinion cites the cases of Webb v. Isensee, 85 Or. 148, 166 P. 544, and Archambeau v. Edmunson, 87 Or. 476, 171 P. 186. These were both civil cases, the former an action for slander and the latter for damages for the alleged breach of an agreement. Both of these opinions were written by the late Justice Moore. In the Archambeau Case he used this language:
--citing authorities.
As applied to the case in hand, we note that section 2 of the constitutional amendment reads thus:
"The courts, jurisdiction, and judicial system of Oregon, except so far as expressly changed by this amendment, shall remain as at present constituted until otherwise provided by law. * * *"
We find in section 3 that:
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State v. Evans
...Jackson County; F. M. Calkins, Judge. On petition for rehearing. Former opinion adhered to and petition denied. For former opinion, see 192 P. 1062. Gus Newbury, of Medford, for I. H. Van Winkle, Atty. Gen., and G. M. Roberts, Dist. Atty., of Medford, for the State. HARRIS, J. The state has......