State v. Howard
| Decision Date | 27 December 1921 |
| Citation | 203 P. 311,102 Or. 431 |
| Parties | STATE v. HOWARD. |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Malheur County; Dalton Biggs, Judge.
George Howard was convicted of murder in the first degree, and he appeals. Affirmed.
The defendant was indicted, tried, and convicted of the crime of murder in the first degree committed upon the person of George R. Seeny, commonly known as George R. Sweeny. It was alleged that the offense was committed by the defendant on September 14, 1920, in the county of Malheur, Or., by striking deceased divers blows on the head with a piece of iron called a wrench. There is no question raised in the brief as to the sufficiency of the indictment and none as to the fact that defendant killed deceased with the weapon alleged in the indictment. The defendant as a witness in his own behalf admitted that he killed deceased, appropriated his automobile and watch, sank his body in the Owyhee river, and subsequently took it therefrom and buried it, where it was found in consequence of information furnished by the defendant.
The principal contention on the appeal to this court is that there is not sufficient evidence to justify a verdict of murder in the first degree. There are objections to the ruling of the court in admitting certain evidence, and particularly an alleged written confession of defendant. There are also objections to the action of the court in refusing instructions requested by the defense and in giving certain instructions excepted to by the defense upon the trial. All of these matters will be further stated and considered in the opinion.
Julien A. Hurley, of Vale, for appellant.
Robert D. Lytle, District Attorney, of Vale, for the State.
McBRIDE J. (after stating the facts as above).
It may help to clarify matters to state briefly the facts either expressly admitted by defendant in his testimony or proved by such uncontroverted testimony as renders them morally certain.
It is a fact that on September 13, 1920, the defendant and deceased was "dickering" about the purchase of a Maxwell automobile by defendant, and that the negotiations had gone so far that nothing remained to complete the trade except for defendant to pay a certain amount of cash and give acceptable security for the unpaid balance to the deceased.
It is certain that on the same date defendant purchased at a store at Vale a large trunk, which he left in the store until the next day (the day of the homicide), when he got it, and after going a short distance in the country placed therein the body of deceased, whom he had killed some hours previously.
It is certain that on September 12 or 13 defendant had purchased and had in the machine a heavy wrench, with which the homicide was committed.
It is certain that defendant and deceased drove out of Vale on the morning of September 14, 1920, and that while some distance out of the city defendant struck deceased at least two blows with the wrench, thereby killing him.
It is certain that he placed the body of deceased in the rear part of the car, covering it so as to be secure from observation, and returned to Vale, got the trunk he had purchased, drove out into the country, and forced the dead body into the trunk, placed it in the rear part of the machine, drove home, took members of his family riding with the trunk containing the dead body still in the car, and after remaining at home that night drove back towards Vale to what is known as the Palmer ranch, where he had formerly worked, let the car stand there with the trunk containing the body still in it, until dark, and then took the body from the car, carried it to the Owynee river, weighed it down with pieces of old iron, and sank it in about four feet of water in the stream.
It is certain that on October 28, 1920, he took the dead body from the river, carried it a distance of several hundred yards and buried it in a garden, where it was afterwards found pursuant to directions given by him.
It is certain that he retained possession of the car, claiming that he had bought it.
It is certain that he took and kept the watch that deceased was wearing at the time of the homicide.
These facts are undisputed, and were admitted by defendant on the witness stand.
His defense, as stated upon his direct examination, is that deceased was unwilling to part with the car upon the terms which he had proposed, and had demanded the full price, $650 in cash, and, upon defendant's stating that he could not do any better than to pay $250 down and the balance in installments, deceased began abusing him and his family, and that during the altercation blows were exchanged, and in a moment of excitement and anger defendant reached back behind the seat with his left hand, seized the wrench, changed it to his right hand, and struck deceased two blows, killing him instantly.
At the risk of being prolix we give his explanation in the language used by him on direct examination:
This was practically reiterated on his cross-examination, and, even if believed by the jury, it would have fallen far short of making a case of self-defense, although it might have furnished a plausible argument in favor of a theory of manslaughter. But the improbability that the encounter occurred as the defendant says it did; that with no apparent reason an old acquaintance should heap upon him the abuse he claims as provocation for the blow that he says he struck; that he considered himself in danger from deceased while he was occupied in steering a moving car; that in such a struggle he should have had time to reach over the back of the front seat of the car, discover the wrench lying there, seize it with his left hand, transfer it to his right and strike the blow--are circumstances so intrinsically improbable that the jury might well have concluded that they never took place, and might well have been justified in adopting the theory that the defendant, who was afterwards found in possession of the car and watch of the deceased and claiming to own them, had purchased the wrench with the intention of using it as a lethal weapon and the trunk as a means of concealing the crime, and that the homicide was committed for the purpose of obtaining the property which defendant afterwards appropriated as the spoils of the crime. We are not authorized to go into a general comparison of the testimony given on behalf of the state and the defendant, but from the circumstances above detailed, and from others unnecessary to set down, there was abundant evidence to justify the jury in finding the verdict rendered.
The facts above noted become important when considered in connection with that portion of Or. L. § 1537, which provides:
"A confession of a defendant, whether in the course of judicial proceedings or to a private person, cannot be given in evidence against him, when made under the influence of fear produced by threats; nor is a confession only sufficient to warrant his conviction, without some other proof that the crime has been committed."
It is contended in the able and plausible brief of defendant's counsel that there is an entire lack of proof that a crime has been committed outside of the confession of defendant; in other words, that there has not been sufficient proof of the corpus delicti. The controlling reason for the rule that the mere confession of a crime is insufficient to sustain a conviction arose from the fact that in some instances persons have been convicted upon such confessions, and thereafter the supposed victims turned up alive. While these occurrences were infrequent, they were sufficient in number to cause the courts in the first instance, and later the legislative power, to require that such confessions should be corroborated by extraneous evidence that the supposed victim was actually dead, and that the death had been occasioned by some criminal agency so as to preclude the presumption that it had happened through accident or suicide. It follows, therefore, that in cases of this character proof of the corpus delicti simply involves the establishment of the fact that the person named in the indictment as the victim is actually dead, and that such death was the result of the criminal act of some other person. The principle is thus stated in State v. Hand, 1 Marvel (Del.) 545, 41 A. 192:
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...which are accusatory or which assume defendant's guilt (State v. Blodgett, 50 Or 329, 335, 92 P 820 [ (1907) ]; State v. Howard, [102 Or 431, 425, 203 P 311 (1921) ]; State v. Henderson, supra, 182 Or at 173 ). * * * " Nunn continued: "The test, so far as one can be formulated, is: 'Was the......
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