State v. Hecker

• Citation: 221 P. 808,109 Or. 520
• Parties: STATE v. HECKER.
• Decision Date: 18 December 1923
• Court: Supreme Court of Oregon

221 P. 808

109 Or. 520

STATE v. HECKER.

Supreme Court of Oregon, En Banc.

December 18, 1923

Appeal from Circuit Court, Clackamas County; J. U. Campbell, Judge.

Russell Hecker was convicted of murder, and appeals. Affirmed.

Russell Hecker was convicted of the crime of murder in the first degree upon an indictment which alleged that the defendant on April 16, 1922, in Clackamas county, killed Frank Bowker by shooting him with a gun or pistol. The verdict returned by the jury found the defendant guilty of murder in the first degree. The verdict did not recommend life imprisonment. The judgment of death was pronounced by the trial court. The defendant appealed.

The defendant attacks the judgment claiming: (1) That the motion made upon the close of the state's case, to strike out the testimony of Mrs. Lawrence Millner, L. B. Johnston, Gus Schram, and George Hudson, with reference to seeing stains of blood on the road, should have been allowed; (2) that the admission of samples of stains taken from the pavement was error; (3) that the admission of a hat found with the body of the decedent was error; (4) that there is no law in force prescribing the mode of executing the judgment of death; (5) that the jurors were permitted unlawfully to separate after the cause had been submitted to them; (6) that the court erred in explaining an instruction by supposing the use of an ax by a stranger; (7) that the court erred in one of the instructions on reasonable doubt; (8) that error was committed in the refusal to give a requested instruction as to the penalties for murder in the first degree; (9) that a requested instruction relating to self-defense should have been given; and (10) that the court ought to have given a requested instruction to the effect that the defendant was not to be prejudiced by the fact that he was armed.

Gale S Hill, of Albany, and Gilbert L. Hedges, of Oregon City (Thos G. Ryan, of Portland, on the brief), for appellant.

Livy Stipp, Dist. Atty., of Oregon City, George Mowry, Deputy Dist. Atty., of Portland (Frank J. Lonergan, of Portland, on the brief), for the State.

HARRIS, J. (after stating the facts as above).

A recital of some of the facts is necessary for a clear understanding of the points presented for decision. For several days prior to Sunday, April 16, 1922, the defendant had been negotiating with Frank Bowker for the illicit sale of whisky, which the defendant said a friend of his owned and wished to sell. The price was $80 per case; and it was understood that Bowker would take 15 cases. The defendant was living in Portland in an apartment with a young woman to whom he was not married. Frank Bowker also lived in Portland. There is testimony to the effect that the defendant drove in an automobile to Bowker's home Saturday night, April 15th, arriving there after 9 o'clock, for the purpose of going with Bowker to get the whisky, but that the trip was not made because it was too late. Albert Bowker, the brother of the decedent, says that Frank asked him to go along, but that he refused to go, because he had just completed a long trip and was tired. There is also evidence indicating that the parties mentioned the fact that it might be dangerous to make the trip, because officers of the law would be looking for cars with whisky at that hour of night. At any rate, the trip was not made that night. The defendant bought a burlap sack, referred to by one of the witnesses as a hop sack, in Portland on that day.

The next day, April 16th, the defendant and Frank Bowker arranged by telephone to meet at the Oregon Hotel in Portland, and then make the trip. They met pursuant to the arrangement. Albert was with his brother Frank. The defendant refused to permit Albert to accompany them, but he did consent that Albert could follow about half an hour afterwards, with the understanding that they meet at Eighty-Second and Division streets.

The defendant said it would require about 30 minutes to drive from Eighty-Second and Division streets to the cache where the liquor was, and to return to Eighty-Second and Division streets. Frank Bowker had with him a 38-caliber revolver. The defendant had with him a 45-caliber revolver, which he had borrowed that afternoon. Frank Bowker had on his person a draft for $300, and at least $985 in currency, and probably more than that amount. The defendant and Frank Bowker left a little after 7 p. m., in an automobile which the defendant had borrowed; the defendant was driving, and Bowker was sitting on the front seat at the right side of the defendant. Albert Bowker drove to Eighty-Second and Division streets in about half an hour after the departure of the defendant and Frank Bowker. Albert did not again see Frank alive. Mrs Lawrence Millner resided in Clackamas county at a point which is about a quarter of a mile east of Clackamas station, which is at the first turn of the road. She and her husband heard a shot about 7:30 p. m., April 16th, "right down in front of the house." On the following Friday she saw spots on the pavement about half way between her house and "the next turn on the road"--"between my house and the filling station."

L. B. Johnston lived at Gladstone. The Rahn & Herbert greenhouse is between Oregon City and Clackamas station, and is about half a mile from the latter place. On Monday, April 17th, at 6:30 a. m., while on his way to work at the Rahn & Herbert greenhouse, Johnston saw a spot of blood about 6 inches in diameter, "and a few little drippings around the spot" on the pavement at a point which is 50 or 60 feet from a rock cut that is a little over a mile from the greenhouse.

Gus Schram lived at Clackamas, and worked at the Rahn & Herbert greenhouse. On Monday, April 17th, at about 6:50 a. m., while on his way to the greenhouse, Schram saw a pool of blood on the road "just this side of Piper's place."

George Hudson resided at Clackamas station, and worked at the greenhouse. He was with Schram on the morning of April 17th, and he saw "a red, brownish spot on the pavement, and it looked like blood"; and he explained that the Piper house is between Clackamas and the greenhouse.

H. C. O'Neil operated a service station on the Pacific Highway at Horseshoe Park, which is 33 miles south of Portland and 2 miles north of Woodburn. At about 9:30 p. m. on April 16th the defendant stopped at this service station, and bought gasoline for the car he was driving. The station was lighted with electric light. O'Neil noticed that the defendant's "hand was all blood, * * * and on the running board was a puddle of blood." Albany is "about 80 miles" south of Portland. About 2 a. m. on April 17th, the defendant got a room with a bath at a hotel in Albany. In about half an hour the defendant came from the room and into the lobby, and soon afterwards left. The bed in the room was not used, but the bath and towels were used. "All over on" one towel was a stain that looked like blood From the hotel the defendant went to the residence of Ira Coleman, and after awakening him paid him $65 in satisfaction of a debt, and also handed to Coleman a package containing $634 in currency, with the request that Coleman keep it for the defendant.

Between 8 and 8:30 on the morning of April 17th the defendant was in Portland, and there bought one front mat, one rear mat and one rear seat cushion for the automobile, and put these articles in the car, He parked the automobile on one of the Portland streets, and notified the person from whom he had borrowed the car. The automobile had blood on it at different places. About 2 p. m. of that day the defendant was in the custody of the police.

On Tuesday, April 18th, the defendant, his father, and his attorney, the chief of police, and other officers drove in an automobile to a bridge that crosses the Calapooia river near Albany. On the bridge were particles of burlap and blood. On the following Thursday or Friday the body of Frank Bowker was found in the water some distance below the bridge in a sack, the open end of which had been tied with a string. An examination of the body disclosed that the decedent had been shot through the head the point of entrance being in the back of the head to the right of the mid line, and the point of exit being in the front of the head to the left of the middle line.

W. A. Barker, a policeman, saw a spot on the pavement between 400 and 500 feet south of Clackamas station, "where the road makes the turn." He scraped off a sample with a knife. He found another stain "half way between where the road turns, where the turn is, and the filling station"; and for a distance of about 200 feet there were drippings leading up to this spot. Barker scraped a sample from this spot. Both samples were taken on April 21, five days after the alleged homicide. A chemical analysis was made by an expert, and each sample revealed human blood. The same expert testified that the automobile used by the defendant and the revolver which he had borrowed revealed human blood; and he also testified that he found human blood on a stick taken on April 18th from the bridge off which the body of decedent apparently had been thrown. Grace Herbert testified about leaving Clackamas at 8:17 p. m. April 16th, and while afoot on her way to her home at the greenhouse she passed an automobile which had stopped at the side of the road, "just a little south of the Piper house," and this witness gave testimony from which the jury could have inferred that the car was the one used by defendant.

The route traveled by the defendant took him from Multnomah county, through Clackamas and Marion counties, and to Linn county, and then back to Multnomah county; and therefore the testimony concerning the stains on the pavement near Clackamas station was...