State v. Gillis
| Decision Date | 14 July 1936 |
| Citation | 59 P.2d 679,154 Or. 232 |
| Parties | STATE v. GILLIS. |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Multnomah County; Louis P. Hewitt, Judge.
John Gillis was convicted under separate indictments charging assault with a dangerous weapon against different individuals, and he appeals.
Judgments affirmed.
Chris Boesen, of Portland (Green, Tanner & Boesen and Tom Garland all of Portland, on the brief), for appellant.
Joe P Price and Frank S. Sever, Deputy Dist. Attys., both of Portland (James R. Bain, Dist. Atty., of Portland, on the brief), for the State.
Defendant Gillis appeals from two judgments of conviction of the crime of assault with a dangerous weapon. Under one indictment Gillis was jointly charged with Willis Billingham, Curt Billingham, and Jay Lowell with having committed an assault with a dangerous weapon upon Alfred Ertman on August 27 1935. In the second indictment the above-named persons were also jointly charged with having, at the same time and place committed an assault with a dangerous weapon upon Elizabeth Ferguson. Willis and Curt Billingham were first tried and convicted on both charges. Jay Lowell then pleaded guilty to both charges and thereafter offered evidence on behalf of the state. The cases against the defendant Gillis were then consolidated, under and by virtue of chapter 40, Oregon Laws 1933 (page 53), and, as a result of the trial, judgments of conviction were obtained. Gillis was sentenced to serve a term of ten years in the penitentiary on each charge, the sentences to run consecutively.
The principal contention of the defendant on this appeal is that error was committed in receiving evidence relative to the commission by defendant of crimes other than those charged in the indictments. To fully comprehend this assignment of error a brief statement of the facts is necessary.
The defendant John Gillis is secretary-treasurer and business agent of the Woodsawyers' Union in the city of Portland. The state introduced evidence tending to show that for several months preceding the alleged assaults a bitter controversy was being waged between the Woodsawyers' Union men and nonunion men concerning the cutting of prices for wood sawing below the union scale. Alfred Ertman owned and operated a wood saw but did not belong to the union. He had once been a member but, according to his testimony, had dropped out because of being unable to pay the dues. Ertman testified that he was warned by the defendant Gillis that he would have to pay up his membership dues "before you go out and cut wood." Ertman, however, did not pay up and persisted in cutting wood. In June, a few days after this alleged conversation, the truck belonging to Ertman was smashed with a sledge hammer. The evidence does not disclose who did it.
David Lamora, a wood saw helper, testified that about August 1, 1935, the defendant Gillis asked him if he "would put a man in the hospital for $100 or $50." He said that Gillis referred to Alfred Ertman. Lamora testified that he refused to accept the job.
Gerald (Spud) Murphy testified that on August 8, 1935, the defendant Gillis employed him to "beat up" on nonunion wood sawyers. Under the terms of this agreement, Gillis was to pay Murphy $50 for each "beat up," the latter being guaranteed protection. In the event he was jailed, he was to receive the sum of $5 a day during confinement. Murphy said that, pursuant to this agreement, he called at the home of the defendant on August 12, 1935, and the latter gave him a written list of the wood sawyers he did not want to operate. It was through Murphy that the Billingham brothers and Jay Lowell, the taxicab driver, agreed to join in the "beat-up" enterprise.
Dan Dietrich, a nonunion man engaged in the operation of a wood saw, testified to an assault upon him and his crew on August 15, 1935. He said he recognized "Spud" Murphy as one of those engaged in the attack.
He further testified that he had a conversation with the defendant Gillis after Ertman was shot, concerning reinstatement in the union upon payment of delinquent dues and a fine of $100, and that Gillis told him:
Arnold Smith, who worked as a wood saw helper with Dietrich's crew, thus testified as to the assault on August 15th: "*** we were sawing wood at 9th and Siskiyou, and four men come up on a car and the car drove on and after a little bit four men came back and they had saps and blackjacks and they proceeded to beat up on us."
J. C. Bighaus, a nonunion wood sawyer, testified concerning an attack on August 16, 1935, by "Spud" Murphy and the Billingham brothers wherein three or four shots were fired at the wood sawing crew. He also related a conversation with Gillis wherein the latter said: "Bighaus, if I can't stop you by picketing, I'll put you off the street altogether and put you in the grave."
Ertman fixed up his truck and started to work again. While he and his helpers were engaged in work, the Billingham brothers and "Spud" Murphy-all of whom were thugs with criminal records-came upon them and proceeded to smash the engine and beat up the crew. This assault occurred about eight or ten days prior to the assaults charged in the indictments. Ertman, with remarkable fortitude and courage, within a few days again repaired his wood sawing equipment and started to work. At home about 9:45 on the evening of August 27, 1935, he was talking to his landlady, Mrs. Elizabeth Ferguson, about payment of rent, when a pistol shot rang out from the darkness and a bullet passed through his right breast, continuing its course through the hand of Mrs. Ferguson.
There is no testimony that Gillis was present at the time of the assaults above mentioned or those charged in the indictments. However, there is ample evidence showing his connection therewith. It is the theory of the state, supported by the record, that Gillis employed the accomplices above mentioned to make these various assaults on nonunion wood sawyers for the purpose of compelling them to join the union or stop sawing wood. Gillis denies any participation whatsoever in the crimes charged in the indictments or in those above referred to, evidence of which was received over his objection. There are many other facts and circumstances which might be related, but it is believed that the above brief statement of facts will suffice for an understanding of the legal questions presented.
It is a well-established general rule that proof of other and distinct crimes than the one charged in the indictment cannot be given in evidence. State v. Goodloe, 144 Or. 193 24 P.2d 28; State v. Sullivan, 139 Or. 640, 11 P.2d 1054; State v. Casey, 108 Or. 386, 213 P. 771, 780, 217 P. 632; State v. Walters, 105 Or. 662, 209 P. 349...
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