State v. Folkes

• Decision Date: 20 June 1944
• Parties: STATE <I>v.</I> FOLKES
• Court: Oregon Supreme Court

174 Or. 568

150 P.2d 17

STATE

v. FOLKES

Supreme Court of Oregon.

Argued March 1, 1944.

Affirmed June 20, 1944.

Rehearing denied July 25, 1944.

Criminal law

1. Before an instrument is admissible as the written confession of defendant, he must in some manner have acquiesced in correctness of the writing.

Criminal law

2. In murder prosecution, transcribed stenographic notes of conversations with defendant wherein defendant confessed his guilt in great detail and which the defendant never saw, heard, wrote or signed were improperly admitted as a confession.

Criminal law

3. In murder prosecution, error in admitting transcribed stenographic notes of conversations with defendant wherein defendant confessed his guilt as a confession, where defendant had not seen or signed it, was not prejudicial, where it would have been admissible as memorandum to refresh stenographer's recollection, or if she retained no recollection of the facts she could have read her notes to jury.

Criminal law

4. Where transcribed stenographic notes of conversations with defendant wherein defendant confessed his guilt were admitted, testimony of police officer that defendant said he would sign the confession in the event it was transcribed was relevant to show that confession was voluntarily made.

Criminal law

5. In murder prosecution, admission of transcript of defendant's statements, in form of questions and answers, taken down by court reporter containing confession, but not read and not signed by defendant, was technical error, where prosecution omitted the usual questions which would have permitted the exhibit to be employed either to refresh memory or as a record of lost memory.

Criminal law

6. A confession, even though made to police officers and while in custody, is admissible if not induced by fear, violence, threats, or promises of reward or immunity, and even though accused was not cautioned that his statement might be used against him or was not advised as to his legal rights.

Criminal law

7. In murder prosecution, evidence showed that none of the confessions of defendant, evidence of which was admitted, was rendered involuntary or inadmissible as having been obtained after long hours of questioning.

Constitutional law

8. In murder prosecution, confessions were not inadmissible as denying due process of law because defendant was subjected to questioning by numerous police officers without being first taken before a magistrate.

Criminal law

9. In murder prosecution, confessions were not inadmissible as involuntary on ground defendant had not been given benefit of counsel, where evidence disclosed that defendant employed counsel, there was no evidence that he was refused right to legal advice, and evidence disclosed that officers sought for and produced his attorney.

Criminal law

10. In murder prosecution, evidence of oral confession made to officers before defendant was given some whiskey by officers at his request was not inadmissible as involuntary on the ground whiskey was purchased for defendant by officers or on ground defendant was intoxicated at time of confession.

Criminal law

11. In murder prosecution, evidence showed that defendant's confessions to officers were voluntarily made.

Criminal law

12. In murder prosecution in which confessions and oral admissions by defendant were introduced, failure to give cautionary instruction relative to oral admissions of party was not prejudicial error, where expert stenographers had taken down in shorthand a verbatim report of questions and answers and accuracy of their work was not challenged, and substantially all of damaging statements made by defendant, and which were admissions against interest, also constituted parts of a connected story repeatedly told by defendant, and court instructed jury on necessity of it appearing that statements of defendant were voluntary.

Criminal law

13. Ordinarily the mere offer of improper evidence is not reversible error.

Criminal law

14. In murder prosecution, error, if any, in permitting jury to hear evidence of other misconduct of defendant contained in transcript of defendant's statements to officers was not reversible error where invited by defendant, and where cured by court's instruction to jury not to consider any references in the statements concerning any other offenses.

Witnesses

15. In murder prosecution, admitting transcripts of statements confessing guilt, made by defendant to officers, not signed by defendant,

was not prejudicial error on ground defendant was deprived of right of cross-examination, where stenographers who took the statements were cross-examined and officers who testified as to what they heard defendant say were exhaustively cross-examined, and defendant could have recalled officers to stand for cross-examination after receipt of exhibits if he so desired.

Criminal law

16. Where guilt is conclusively proven by competent evidence, and no other rational conclusion could be reached, conviction should not be set aside because of unsubstantial error.

Criminal law

17. In murder prosecution, where defendant was conclusively proven guilty by his own confessions, corroborated by other unimpeached and uncontradicted evidence, receipt of incompetent evidence did not constitute reversible error.

Homicide

18. Although jury may ameliorate the punishment for first degree murder by recommending life imprisonment, the death penalty, in absence of any recommendation, is made mandatory by constitutional provision.

Criminal law

19. Constitutional provision, art. 7, section 3, authorizing the Supreme Court to affirm judgment notwithstanding errors where court is of opinion that judgment was such as should have been rendered was not amended or repealed by implication by art. 1, section 37, providing that penalty for murder in first degree shall be death except when trial jury recommends life imprisonment.

Constitutional law

20. Repeals of a constitutional provision by amendment and repeals by implication are not favored.

Criminal law

21. Where Supreme Court was of opinion, after consideration of all matters submitted, that judgment of conviction of first degree murder was such as should have been rendered in the case, Supreme Court was authorized to affirm it, notwithstanding errors.

ROSSMAN and KELLY, JJ., dissenting.

                  Intoxication of accused at time of making confession as
                affecting its admissibility, note, 74 A.L.R. 1102. See, also
                20 Am. Jur. 449
                  22 C.J.S., Criminal Law, § 830
                

Before BAILEY, Chief Justice, and BELT, ROSSMAN, KELLY, LUSK, BRAND and HAY, Associate Justices.

Appeal from Circuit Court, Linn County.

L.G. LEWELLING, Judge.

Robert E. Lee Folkes was convicted of murder in the first degree, having been tried by a jury which returned a verdict of guilty without recommendation, and judgment directing his execution was pronounced, and he appeals.

AFFIRMED. REHEARING DENIED.

Leroy L. Lomax, of Portland, for appellant.

Harlow L. Weinrick, of Albany, District Attorney, for respondent.

BRAND, J.

Ensign Richard Floyd James received travel orders requiring him to go from Seattle, Washington, to Los Angeles, California. His wife, Martha Virginia James, was a passenger occupying lower berth 13, car D, train 15. She was unable to secure accommodations on the troop train which carried her husband, but they were informed that from Portland, Oregon, south, his car and hers would be in the same train. Train 15 was delayed en route with the result that her husband was not, as anticipated, a passenger on the train which carried Mrs. James from Portland toward Los Angeles.

On January 23, 1943, and near 4:30 A.M., someone entered Mrs. James' berth and cut her throat, severing a vein and an artery. Her screams aroused passengers in the car, three of whom saw the murderer, dressed in a long dark overcoat, rushing to the rear of the car. Two of the three actually saw him backing out of lower 13. Mrs. James had struggled into the aisle where she died a few moments later. The three witnesses, Wilson Conner and Norton, were the only persons who saw the murderer at that time. They were unable to identify the defendant as the man seen departing from lower 13.

In fleeing from car D, the murderer went toward the dining car which was immediately to the rear of car D. The defendant, Robert E. Lee Folkes, was second cook on that dining car.

Shortly before 4:25 A.M. the defendant, Folkes, was in the smoking room of car D where he talked with Hughes, the porter. He was then dressed in a white coat. Marjorie Wasserman, an occupant of car D, saw a colored man dressed in a white uniform enter that car before the train left Portland and talk with Mrs. James. She made no positive identification of the defendant, but testified, "he looks like the one." Witness Wilson, a United States Marine, testified that after the murder he searched all cars to the rear of car D and that in the process of the search, he entered the kitchen where he found the defendant. The defendant told him that he had been there for about twenty minutes. Wilson testified that "beads of perspiration were forming on his [defendant's] forehead and starting to run down his face." Wilson described the kitchen as cool, but other witnesses testified that the fires were burning.

The evidence discloses that it was the defendant's duty to arise at 4:30 A.M. on January 23 and prepare the kitchen for the day's work. Witness Kelso, the occupant of upper berth 11 of car D, testified that on January 23 he rose between four and five in the morning and descended to the aisle with the intention of going into the men's room to shave, but headed in the wrong direction. While in the aisle, he encountered a colored man who directed him to the men's room. He could not identify the defendant as the man. Witness Clarence W. Champlin testified that when the train reached Klamath Falls, the defendant and witness Kelso were brought together and the defendant...