State v. Hillstrom

• Decision Date: 03 July 1915
• Docket Number: 2764
• Court: Utah Supreme Court
• Parties: STATE v. HILLSTROM

150 P. 935

46 Utah 341

STATE v. HILLSTROM

No. 2764

Supreme Court of Utah

July 3, 1915

Appeal from District Court, Third District; Hon. M. L. Ritchie Judge.

Joseph Hillstrom was convicted of murder. He appeals.

AFFIRMED.

O. N Hilton and Soren Christensen, for appellant.

A. R Barnes, Attorney-General, and E. V. Higgins and G. A. Iverson, Assistant Attorneys-General, for the State.

STRAUP C. J. FRICK, J., McCARTY, J., concurring.

OPINION

STRAUP, C. J.

The defendant was convicted of first degree murder and appeals. The principal question presented is that of sufficiency of the evidence. The claim made is that there is not sufficient evidence to identify the defendant, to connect him with the commission of the offense, nor to show motive.

In the information it is charged that he with a revolver shot and killed J. G. Morrison. The deceased was conducting a grocery store at or near the corner of Eighth South and West Temple streets, in Salt Lake City. The store, with a glass front, faced east on West Temple street, running north and south. About half a block to the west is a cross-street known as Jefferson street. Midway between that street and West Temple is an alley. The homicide was committed in the store between nine forty-five and ten o'clock p. m., on the 10th day of January, 1914. With the deceased in the store were his two sons, Arling, about seventeen, and Merlin, about thirteen years of age. The night was a bright, moonlight night. Near the store was an electric arc light. There was another near Jefferson street. The sidewalk and the street near the store were also lighted from brilliant lights in the store. As the deceased and his two sons were preparing to close the store, two men with red bandana handkerchiefs over their faces as masks, and with revolvers in their hands, suddenly entered the store. One of them was tall and slender, and wore a dark, or dark grey, soft hat, and a dark coat and dark trousers. The deceased was near a counter on the north side of the room, moving a sack of potatoes behind the counter. Arling was on the south side, sweeping near a cash register and an ice chest. In the upper part of the chest, from which the door was removed, the deceased kept a loaded, six-chamber, thirty-eight caliber revolver. Merlin, the only living witness to the shooting, testified that as the two assailants entered the store and approached his father they said, "We have got you now," and immediately shot. He gave it as his best judgment that about seven shots in all were fired, when the assailants fled, without attempting to take anything from the cash register or elsewhere. The father and Arling were both killed. The former was shot twice; the latter three times, twice in the back. Later five or six bullets and empty cartridges were found in the store. They all were shot from a thirty-eight caliber automatic revolver. Two bullet marks were found in shelving or the counter where the deceased was killed, another on the inside of the ice chest, where the deceased kept his revolver, and two or three where lay the body of Arling, behind the counter, with one bullet hole through his body and straight down through the floor. Merlin testified he did not see the first shot fired, which hit his father, but saw the second, which was shot by the taller of the two assailants, who then directed his attention towards the ice chest. Merlin retreated into a little storeroom, where he no longer saw Arling nor the assailants, but heard shots. After the assailants had fled, Merlin first went to his father, and then to Arling. He found the latter dead behind the south counter, and but a short distance from the ice chest. Near his outstretched hand lay the revolver which was kept in the ice chest, with one chamber discharged. An officer who examined it shortly thereafter testified that it was freshly discharged. Merlin testified that he saw the revolver in the ice chest earlier that evening, and that then all six chambers were loaded. He testified that he did not see Arling get the gun from the chest, and did not know that he had discharged it until he found it lying on the floor with one chamber discharged. From this it is quite evident that at some period during the shooting Arling went to the ice chest, got the gun, and discharged it at the assailants.

Another witness whose attention was attracted by the shooting saw the taller of the two assailants come out of the store in a rather stooped position, with his hands drawn over his chest, and heard him exclaim as if in great pain, "Oh, Bob " and saw him cross the street to the alley, where he was joined by two other men. They there halted for a moment and disappeared in the alley. Another witness saw the taller of the two assailants run from the store into the street near a pole, there halt, and then go towards the alley, and heard him in a clear voice say, "I am shot." The next morning a gob of blood about the size of a quarter spattered over the sidewalk for a space of about a foot was found at the entrance of the alley. The blood had the appearance, as described by the witnesses, as coughed up and spat on the sidewalk. Similar blood was found down the alley where the assailants went and were heard to mutter to themselves.

The defendant on the day of the homicide was visiting with acquaintances by the name of Eselius, at Murray, a town about five miles south of the place of the homicide. At that house were Mrs. Eselius, her six brothers, her father, and one Otto Applequist. Some of them had been working at the mills or smelters at Murray. On the day of the homicide some of them left Murray about five o'clock p. m. to attend a theater at Salt Lake City. The defendant and Applequist remained. They were seen at the Eselius house as late as six o'clock that evening. They left that evening some time between six and nine; the exact time is not made to appear. Applequist did not return, and has not been seen nor heard of since. That night between eleven thirty and twelve o'clock the defendant called at a Dr. McHugh's office, on Fourteenth South and State streets, about two and one-half miles south of the place of the homicide, and about midway between the place of the homicide and Murray. The doctor had just retired. He was called to his office by the defendant ringing the bell. The doctor was acquainted with him, and had known him as "Joe Hill." Upon the doctor entering the office and asking what the trouble was the defendant replied that he was shot, and stated: "I wish this kept private." The doctor removed the defendant's clothes, and found him suffering from a gunshot wound through the chest and lungs. As the doctor described it: "The bullet entered a little below and a little to the outer side of the nipple line, ranging upward, backward and outward, and emerged a little below the interior angle of the scapula." He found the defendant's undershirt and shirt saturated with blood, and the defendant in a weakened condition, almost ready to collapse from loss of blood. As the doctor was attending the defendant, a Dr. Bird, residing at Murray, passing Dr. McHugh's office, and seeing a light in the office, stopped to see Dr. McHugh on other matters. Dr. Bird also saw the wound. The bullet had gone clear through the defendant's body and clothes and was missing. From the appearance of the wound the doctors gave it as their opinion that the bullet causing the wound was shot from a thirty-eight caliber gun. They further testified that such a wound would cause internal hemorrhages, coughing, and spitting of blood. After the wound was attended the doctors assisted the defendant in dressing. In doing that, a revolver in a holster with shoulder straps fell from the defendant's clothes to the floor. Dr. McHugh picked it up and handed it to the defendant. He put it in his coat pocket. The doctors saw but the handle of the gun sticking out of the holster. From the appearance of the handle they gave it as their opinion that the gun was a thirty-eight caliber automatic gun, and that the handle was similar to a Colt's automatic thirty-eight gun exhibited to them. While the defendant was there at the office he told the doctors that "he had had a quarrel with some one over a woman, and that in the quarrel he was shot, and that he was as much to blame as the other fellow, and wanted it kept quiet, kept private." That was all that was said by him concerning the manner in which he received the wound. That was volunteered by him. The doctors did not ask him anything concerning the place nor the circumstances or particulars under which he received it, nor did the defendant tell them anything further about it. After the wound was dressed and the defendant ready to leave, Dr. McHugh asked Dr. Bird to take the defendant in Dr. Bird's automobile to the Eseliuses. As Dr. Bird and the defendant approached the Eselius place the defendant requested the doctor to turn down the lights of the automobile. Dr. Bird did so. As they neared the house the defendant, "with a combination of the teeth, tongue, and lips, gave two shrill, penetrating whistles." Dr. Bird assisted the defendant to the kitchen or back door. As the defendant and Dr. Bird entered "a number of men seemed to have just gone from the back room that we first entered into the next room, and all were standing or walking in that direction as we entered the door, and turned and recognized the defendant, and, seeing him with me, expressed surprise, and asked if he was hurt." The doctor assisted the defendant to a cot into an adjoining room, and there left him sitting on the cot. Two or three days after that the defendant was arrested. In his room on a table was found a red bandana handkerchief similar to that worn by the assailants. The defendant's...