State v. Harris

• Decision Date: 08 September 1965
• Citation: 405 P.2d 492,241 Or. 224
• Parties: The STATE of Oregon, Respondent, v. Wilford Keith HARRIS, Appellant.
• Court: Oregon Supreme Court

Page 492

405 P.2d 492

241 Or. 224

The STATE of Oregon, Respondent, v. Wilford Keith HARRIS, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted July 7, 1965.

Decided Sept. 8, 1965.

Thomas H. Tongue, Portland, and Martin P. Gallagher, Ontario, argued the cause for appellant. With them on the brief was Robert L. McKee, Portland.

John N. Hutchens, Dist. Atty. For Malheur County, Vale, argued the cause and filed the brief for respondent.

Before McALLISTER, C. J., and PERRY, SLOAN, O'CONNELL, GOODWIN, DENECKE, and HOLMAN, JJ.

HOLMAN, Justice.

The defendant was charged with first degree murder, the state claiming he killed his wife by burning. The defendant appeals from a conviction of manslaughter.

One of defendant's principal contentions of error was that the evidence was insufficient to warrant submitting any degree of homicide to the jury. As the evidence of guilt was circumstantial, a rather extensive and detailed examination of the evidence is required.

The defendant was employed as a salesman at a slary of $385 per month. He resided in the city of Salem with his wife and eight of their children--one child being married and the other away at college. He had debts and expenses much in excess of his current ability to pay.

On November 22, 1963, defendant purchased $10,000 of insurance upon the lives of both himself and his wife. On December 13 he purchased trip accident insurance of $50,000 upon the life of his wife and $20,000 upon his own life covering the period of time from 10 p. m. December 13 to 10 p. m. December 16, 1963.

On the evening of December 13 defendant and his wife left Salem in their family car for Salt Lake City. Their ostensible purpose was to enable defendant to see the head of his church in Salt Lake City, to take presents to their relatives in Salt Lake City, and to bring back their daughter from college for Christmas. No pre-arrangement was made with the head of the church to see him nor with the daughter to transport her home.

At the Santiam Pass about 60 miles from Salem it became so foggy that defendant and his wife turned around and came back to the town of Gates where they stayed all night. The next morning they returned to Salem instead of proceeding to Salt Lake City. The reason for not resuming the trip to Salt Lake City the next morning is not clear. On the evening of the 14th they again left for Salt Lake City where they arrived late the next evening.

On the 16th defendant was unsuccessful in seeing the head of his church. Thereafter he and his wife visited with relatives and left their Christmas presents. They called their daughter at college and found that she was not yet able to return home for the holidays.

In Salt Lake City defendant purchased additional trip insurance of $20,000 on himself and $50,000 on his wife covering the period of time from 5 p. m. December 16 to 5 p. m. December 17. It was contracted with a company different from the one which issued the other policies of trip insurance. The agent who sold him the policies told him he could extend the other policies by a visit or telephone call to the first company's agent a few blocks away. However, defendant insisted on purchasing the new policies. The result was that the two sets of policies overlapped from 5 to 10 p. m. on December 16.

At about 4:30 p. m. on the 16th defendant and his wife left Salt Lake City on their return trip. Their automobile was observed with two people in it at 2:15 a. m. on December 17 traveling on the highway two miles north of Burns Junction by the driver of a state highway sanding truck. A half hour later the same driver saw their car parked in a shale pit 15 miles north of the point of first observation, but he saw only one person in the car. The same driver again saw the car traveling northerly on the highway at 5:45 a. m. (Mountain Standard Time) about a mile and one-half north of the shale pit, but again observed only one person in it.

At about 6:20 a. m. (Pacific Standard Time), or an hour and 35 minutes later and a short distance further west, an eastbound truck driver saw defendant's vehicle burning a considerable distance off the highway and down a fairly steep declivity. The driver was glagged down by the defendant who told him that he had hit a rock and run off the highway, that his car had burned, that he had been there for a couple of hours trying to get his wife out but was unable to do so and that since she was burned to death it was too late to try to do anything further.

Defendant was turned over to a state highway crew working on the highway who in turn transported him to a locality known as Basque Station where they called for an ambulance for defendant because he was burned about the face and hands and was complaining of injury to his back. While there he inquired of a member of the state road crew as to the time and was told that it was a quarter of nine. Defendant then said that his watch had stopped at ten o'clock which must have been when the accident happened and that he and his wife had left Winnemucca at eight o'clock. While waiting for the ambulance he showed two women his broken watch and asked them what time it said. When told it said 9:37 he replied that this must have been the time of the accident and that he had lfet Winnemucca at eight o'clock. In response to a question by a state policeman as to the time of the accident, defendant said he left Winnemucca at 8:00 p. m. and then showed his watch which was stopped at 9:37.

It is wholly improbable that defendant drove from Salt Lake City to Winnemucca between 4:30 and 8 p. m. Further, it is highly dubious that it took defendant the time between 8 p. m. and 2:15 a. m. to drive from Winnemucca to where he was observed near Burns Junction. Obviously, the accident could not have occurred at the time stated by defendant which was a time when Mrs. Harris' death, if accidental, was covered by both policies of trip insurance.

Mrs. Harris' body was found lying on the ground adjacent the car with her chin resting on the right front door still. She was so badly incinerated that part of her skull, the bones of the hand and part of a forearm, breast bone and some ribs were consumed along with the flesh of the buttocks, prleis and much of the other flesh of the body. The doctor who performed the autopsy testified that her death was caused by breathing hot air which seared her lungs and that prior to death she had received a blow on the head which had fractured her skull but which was not sufficient to cause death quickly.

About nine feet away from the car and Mrs. Harris' body a rock and surrounding dirt were found with blood and hair on them. Another sample of blood and hair was found on the ground four feet four inches (perpendicular) from the right front door. In a gravel pit about twelve miles back, in the direction from which defendant had traveled, blood and hair were found a short distance from the highway. The hair taken from these three sources was compared with hair taken from the body of Mrs. Harris and an expert testified it was highly probable that the hair came from a common source. The blood from the gravel pit and the rock was found to be Type O, as was Mrs. Harris' blood.

Dirt was taken from the place on which the body lay. It was tested and found to contain a fluid similar to a mixture of burned human fat and gasoline. One sleeve each of defendant's suit coat and shirt were found to contain lead which is an ingredient of gasoline.

The tires were burned from the car, lowering the frame almost to the ground. When the car was raised two days later for the purpose of removal, the bottom of the gasoline tank was found to have some holes punched in it. An expert testified that he microscopically examined and compared the holes in the tank with was impressions made by the end of a lug wrench found after the fire locked in the trunk of the car. It was his opinion that the wrench had been used to make at least two of the holes in the tank. He further testified that the holes were made prior to or during the fire since their ragged edges showed scale from the heat of burning. The tire marks of the automobile, as it left the road at 45 to 50 degree angle, were sharp and clear and showed no skidding.

The defendant told a particularly unconvincing story. He claimed that he was thrown from the car and knocked out and that when he regained consciousness he attempted to remove his wife from the burning car. He stated that she was crumpled on the floor between the front seat and the dashboard and that he was unable to remove her because she was struck. Defendant admitted, however, that he was able to get her legs and things out of the door. There was not shown to have been any deformity in this part of the car caused by the accident which would have impeded her removal.

Most of the above evidence was either contradicted, minimized or partially explained away in some respect by defendant's evidence. Nevertheless, the jury had the privilege of believing that which is recounted above and drawing all legally permissible inferences therefrom. In the case of State v. Dennis, 177 Or. 73, 77, 159 P.2d 838, 841, 161 P.2d 670 (1945), in referring to the rule that where guilt is proved by circumstantial evidence alone the proof must be inconsistent with any reasonable theory of innocence and incapable of explanation upon any rational hypothesis other than that of guilt and the further rule that proof of guilt must be proved beyond a reasonable doubt, the court stated as follows:

'* * * This does not mean that all of the testimony must be consistent with the guilt of the defendant. The testimony may be conflicting, yet the facts proved may warrant a verdict of guilty upon circumstantial evidence alone.'

The evidence in the present case would amply support a conviction for any degree of homicide. The evidence would tend to indicate murder rather than manslaughter. However, we...