State v. Grayson
| Decision Date | 25 September 1928 |
| Citation | 270 P. 404,126 Or. 560 |
| Parties | STATE v. GRAYSON. |
| Court | Oregon Supreme Court |
Department 1.
Appeal from Circuit Court, Klamath County; A. L. Leavitt, Judge.
James H. Grayson was convicted of murder in the second degree, and he appeals. Affirmed.
The defendant was indicted for murder in the first degree committed by shooting and killing one Myrtle Grayson in Klamath county, Or., on the 26th day of March, 1927. The indictment is in the usual form, and its sufficiency is not questioned. A plea of not guilty having been entered, a trial was had, and a verdict of murder in the second degree was returned. A motion for a new trial having been overruled, the defendant on the 18th day of June, 1927, was duly sentenced to the penitentiary for life, from which judgment he appeals.
Various errors are alleged, and will be considered in the opinion in their proper order.
W. A Wiest, of Portland, for appellant.
U. S Balentine, Deputy Dist. Atty., of Klamath Falls (W. M Duncan, Dist. Atty., and H. M. Manning, both of Klamath Falls, on the brief), for the State.
The defendant is the father of Albert Grayson, who is the husband of Myrtle Grayson, and the evidence disclosed the fact that the defendant and Albert Grayson, his wife, Myrtle Grayson, and their children were living together on a ranch in California just over the Oregon line, and that defendant had been so residing with Albert and his family for several years preceding the homicide. Malin, apparently the nearest village and trading town, is situated on the Oregon side of the state line a short distance from the residence of the Graysons. The evidence for the state indicates that the defendant was a man possessed of a hasty temper, and that he had for some time conceived a dislike for the deceased; that he had made accusations to his son and other persons of the lewd association of the deceased with a man named Sullivan, and claimed that her sister Mabel Fogle was an intermediary between Mrs. Grayson and Sullivan, and he had frequently threatened the lives of all three. In fact, his conduct toward his son's wife was simply brutal and indefensible, and his charges against her chastity were based upon such a flimsy foundation as to indicate a deep-seated and malicious hatred. At least there was such evidence, adduced by the state on the trial, which would justify the jury in coming to such conclusion.
The quarrels between the defendant and his son, and, to a great extent, between defendant and Mrs. Grayson, had attained such a pitch that the son Albert and his wife had determined to leave the joint residence and make their home elsewhere, and, upon the evening in question, were in the town of Malin, where Mrs. Mabel Fogle resided and had charge of a boarding house where Sullivan boarded. Albert and his family attended a picture show that evening, and later went to Mrs. Fogle's residence. Later Mrs. Grayson went out to the truck in which the family had come to town and had taken her place in it preparatory to leaving; the truck being parked on the same side of the street upon which Mrs. Fogle's residence and the telephone office in which she was employed was situated, and perhaps a few feet beyond the front of the telephone office.
About the time Mrs. Grayson got into the truck, the defendant was observed standing on the opposite side of the street, and Albert Grayson, having previously been warned that defendant had a pistol on his person, and, no doubt in view of defendant's previous threats and actions, went to find an officer, leaving Mrs. Grayson and the family in the truck and Mrs. Fogle standing by the side of the truck engaged in conversation with her sister Mrs. Grayson while Albert Grayson was away, and probably about the time of his return Sullivan came out of the telephone office and upon the street near the two women and began talking to Mrs. Fogle, and was immediately accosted by defendant, who advanced upon him with a drawn pistol, saying, among other things, "You d_____d son of a bitch, leave that woman (referring to Mrs. Grayson) alone." At this juncture, Albert Grayson seized defendant's wrist and attempted to take the pistol from him, while Sullivan seized defendant from behind and joined in the scuffle to disarm defendant. In the course of the mêlée, Mrs. Grayson had gotten out of the truck, and the pistol was fired, inflicting a wound upon her which subsequently caused her death. Defendant's threats against the life of Mrs. Grayson were sworn to by a number of witnesses, and, while denied by him, are supported by such testimony as fully warranted the jury in concluding that the thought of taking her life in some contingency was firmly fixed in defendant's mind. For instance, he said to Ivan and E. H. Taylor, that he was going to get Sullivan, Mabel Fogle, and Mrs. Grayson all together and kill all three of them. To Mr. McMillan, a witness called by defendant, he said that, "if Albert Grayson did not keep his wife away from that damned whorehouse (meaning Mabel Fogle's residence), he was going to kill all three of them" (meaning Sullivan, Mabel Fogle, and Mrs. Grayson); and to F. R. Starr defendant said, "I will separate Albert and her if I have to kill the God damned bitch to do it."
The critical question before the jury was whether the pistol was discharged accidentally in the course of the scuffle or purposely with the intent to kill either Sullivan, Albert Grayson, or Myrtle Grayson in accordance with a preconceived design; for if, in attempting to shoot Albert Grayson or Sullivan, the shot went wild and killed Myrtle Grayson, the defendant would, if the other elements of the crime as they related to the two men were present, be just as guilty as if he had intended to shoot the woman.
There was evidence tending to show that the pistol was fired intentionally. Mrs. Fogle, who was close to the parties, testified that the electric lights were very bright, and that she distinctly saw defendant press the trigger when the weapon was discharged. In this respect she was very positive, and it was for the jury to appraise the value of her testimony. Considerable time was taken up in discussing the position of the weapon when it was discharged, but we have the uncontradicted fact that the bullet entered the abdomen of the deceased and ranged upward and outward. In brief, the physical facts indicated that the pistol was pointed and discharged in the direction of Myrtle Grayson's body. Whether it was so pointed purposely, was a question of fact for the jury, and we are not permitted to intermeddle with their conclusion. So it appears that there was evidence sufficient to sustain the verdict rendered, unless some material error in the proceedings renders the verdict void.
The defendant had able counsel, and no stone was left unturned to take advantage of every ruling upon which his astute counsel could predicate even a technical error. As a result, he has assigned twenty-two alleged errors occurring on the trial, and which we shall now consider in greater detail.
The first assignment predicates error on the ruling of the court admitting the statement of Albert Grayson as to a difficulty between defendant and Albert Grayson and his wife which occurred about three months before the homicide. The substance of the difficulty was that defendant became exasperated in the course of a quarrel with deceased and her husband, and called deceased a dirty whore and other names, and finally went across to the shack where he slept and returned with a pistol and renewed his abuse. This testimony was clearly admissible as showing defendant's state of mind in regard to deceased and her husband, especially as it was followed up by proof of hostile declarations and threats both before and after that occasion and continuing down to within two weeks before the homicide, when he made the threat to Smith to the effect that he would get "all three of them together and shoot them," or words substantially to that effect.
The second assignment relates to a quarrel between Albert and his father in regard to a bull, which took place immediately preceding the homicide, the particulars of which are not important, except that just before the quarrel Albert had seen his father's pistol in the shack, and, after going to bring the bull back, he found the pistol gone and his father away, and were brought in incidentally in the course of the testimony tending to show that defendant had armed himself before going to town. As there is no question as to his being armed that evening, and as to his drawing and leveling the pistol at Sullivan, it is waste of time to consider this assignment. There was no reversible error committed.
The next assignment is in regard to the ruling of the court limiting the cross-examination of Albert Grayson in regard to the tenseness of defendant's muscles during the scuffle. The examination on that subject had already proceeded to an unprofitable extent, and the court did not err in concluding it.
The next assignment is predicated upon the alleged refusal of the court to permit counsel for defendant to cross-examine plaintiff's witnesses concerning the sanity or insanity of defendant. The only basis for this assignment is that in the testimony of E. H. Taylor, heretofore referred to, wherein he detailed a conversation with defendant, he testified that defendant told him that he was going to kill Sullivan, Mrs. Fogle, and Myrtle Grayson the first time he caught them together.
The witness E. H. Taylor was cross-examined at length by defendant's counsel, and during the examination the following colloquy ensued:
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