State v. Jensen

• Decision Date: 02 May 1956
• Citation: 296 P.2d 618,209 Or. 239
• Parties: The STATE of Oregon, Respondent, v. James Norman JENSEN, Appellant.
• Court: Oregon Supreme Court

Page 618

296 P.2d 618

209 Or. 239

The STATE of Oregon, Respondent, v. James Norman JENSEN, Appellant.

Supreme Court of Oregon.

Argued Jan. 26, 1956.

Decided May 2, 1956.

Edward C. Kelly, Medford, argued the cause and filed briefs for appellant.

Walter D. Nunley, Jr., Dist. Atty., Medford, argued the cause for respondent. With him on the brief was Alan B. Holmes, Deputy Dist. Atty., Medford.

Before WARNER, C. J., and ROSSMAN, LUSK, BRAND, LATOURETTE and PERRY, JJ.

LUSK, Justice.

James Norman Jensen and Donald Chesley were jointly indicted under the statute which provides that one who kills another in the commission of robbery is guilty of murder in the first degree. ORS 163.010(1). Jensen, hereinafter referred to as the defendant, demanded and was accorded a separate trial, and by the verdict of the jury was found guilty as charged without recommendation of life imprisonment. He has appealed from the consequent sentence of death.

The indictment reads:

'The said James Norman Jensen and Donald Chesley on the 24th day of April, 1954, in the said County of Jackson and State of Oregon, then and there being, and then and there acting together, did then and there engage in the commission of the crime of 'Assault And Robbery While Armed With A Dangerous Weapon' by unlawfully and feloniously, while being armed with dangerous weapons, to-wit: a 44 caliber British Bull Dog Revolver, a 38 caliber Iver Johnson Revolver and a Bludgeon made by placing a rock weighing 1 1/2 pounds into a shirt sleeve, knotted at one end, commit an assault upon one Hugh Hile, with intent, if resisted, to kill or wound the said Hugh Hile, and did then and there unlawfully and feloniously take paper currency, lawful money of the United States of America, and the property of the said Hugh Hile, in the amount of $85.00 from the person of the said Hugh Hile and against his will; and the said James Norman Jensen and Donald Chesley, while engaged in the commission of such crime of 'Assault And Robbery While Armed With A Dangerous Weapon', did, by their acts, kill one Fern Hile by striking her on the head with said bludgeon, above described, and with a hatchet.'

In addition to his plea of not guilty the defendant gave notice that he would show in evidence upon the trial that he was insane or mentally defective at the time of the commission of the alleged offense.

The defendant being without funds, the court appointed as his counsel Mr. Edward C. Kelly, an able and experienced member of the bar of Jackson County. The trial lasted ten days. The transcript of testimony comprises 1034 typewritten pages. There are also in the record voluminous affidavits in support of and in opposition to a motion for change of venue, and numerous exhibits, running into hundreds of pages of records, hearings, reports, correspondence, and other documents relating to the mental condition and prior criminal record of the defendant, who was 24 years of age at the time of the homicide and has spent most of his life since he was 14 years of age in detention homes, state mental institutions and prisons in California. It would seem that no evidence that could conceivably throw light on the issue was overlooked either by the prosecution or the defense. It is certain that Mr. Kelly fully and faithfully discharged the trust imposed on him by the court to protect the legal and constitutional rights of the defendant.

The record leaves little, if any, room for debate about the controlling facts of the crime. It occurred when the defendant was enroute to his home in The Dalles, Oregon. He had but recently been paroled from San Quentin penitentiary in California. He hitchhiked from San Rafael, California, and, sometime in the night of April 23, 1954, arrived in Medford, Oregon, where he fell in with his co-defendant Chesley, a youth 18 years of age. They decided to steal an automobile. In furtherance of that purpose they manufactured a 'sap' by knotting a sleeve which they burned off of Chesley's shirt with a lighted cigarette and placing in it a large rock; broke into a secondhand store called Hobbs Trading Post and helped themselves to several revolvers and a length of clothes line; and set out through the town--it then being after midnight--to find a house with the lights on. They came to the dwelling house of Mr. and Mrs. Hugh Hile. Mr. Hile was in his living room engaged in typing letters for his lodge. His wife and their five children had gone to bed. Mr. Hile was summoned to the outside of the house by a knock on the door, escorted back into the house at the point of Chesley's gun, and, on demand of Jensen, delivered to them the keys to his automobile, fifteen dollars which he removed from his billfold, and the billfold itself which contained his driver's license, and, in a secret compartment thereof, eighty dollars. They tied up Hile with the stolen rope, gagged him, and one of them, probably Chesley, struck him several blows on the head with the sap, rendering him unconscious. There was a hatchet in the living room standing against the fireplace. While these things were going on some of the children were awakened by a scream, and Lester, the eldest, aged 15 stepped to the door of the living room, where he was met by the defendant, who told him to go back to bed, that his mother and father were having an argument. The defendant said that he was a business associate of Lester's father. Laster returned to his room where he remained until he saw the lights of the family car go on. According to evidence which the jury was entitled to believe, Jensen picked up the hatchet, went to the bedroom where Mrs. Hile was sleeping, switched on the light, and killed her by striking her several times on the head with the hatchet. The evidence referred to consists of Jensen's own voluntary statements. He made other inconsistent statements, both out of court and as a witness, but for present purposes these are not important.

Having robbed and knocked out Mr. Hile and killed his wife, the defendant and Chesley filed in the Hile car, taking the loot with them. By evening of April 24 both men had been arrested and were in jail.

Most of the facts above stated were testified to by the defendant as a witness on his own behalf. He testified that he and Chesley planned to steal a car, and, in furtherance of that purpose, that they burglarized Hobbs Trading Post; that they took the rope 'with the idea of tying someone up'; that, after robbing Hobbs Trading Post, they went through the town in the dead of night looking for a house with the lights on; that they might have intended to steal money but 'primarily the reason we went in was to get the car keys'; and when they entered the Hile house he had two guns and Chesley one, and Chesley had the sap which he had helped Chesley to make. He described the manner in which they gained entrance to the Hile house in the following language:

'Well, we walked by the house and decided to enter the house. We split up and one of us went to the back. I went to the back of the house and Chesley, the other fellow, went to what I thought was the front of the house. I guess it was the side entrance. When I reached the side entrance, after going around back of the house, Chesley had a gun turned on this fellow there that lived in the house. I went into the house and this man came in after me, followed by Chesley.'

According to the defendant, it was he who tied up Hile, but Chesley who gagged him and knocked him unconscious. The defendant admitted that he picked up the hatchet, but claimed that he placed it on a snack bar adjoining the living room and did not pick it up again. He testified that he and Chesley went to Mrs. Hile's bedroom, turned on the lights, and saw her asleep on the bed; that he went to the bathroom to get tape to tie her with, and when he returned 'the woman was being hit.' He denied having struck her. In this part of his testimony he is contradicted by his three confessions, none of which are claimed to have been involuntary or induced by threats or promises. The statements in the confessions are to the effect that he himself killed Mrs. Hile by blows on the head with the hatchet. Whatever the truth may be as to this, there can be no question about the fact that Mrs. Hile was killed by either Jensen or Chesley or both of them while they were still engaged in the crime of robbery.

We turn to the assignments of error.

Assignment of Error No. 11

Error is assigned to the court's denial of the defendant's motion for a change of venue.

The motion was presented to and denied by the Hon. Charles H. Foster, circuit judge for Lake County. The defendant made no objection to Judge Foster passing on the question, but it is now contended, not that Judge Foster did not have power to act, but that no one except Judge Hanna, the circuit judge for Jackson County, should have considered it. As Judge Foster is a circuit judge of this state and was sitting in Jackson County under assignment from the chief justice of this court, ORS 3.100, the contention is obviously without merit.

The motion for change of venue was supported by affidavits of citizens of Jackson County tending to show that it would not be possible for the defendants to obtain a trial by a fair and impartial jury of that county; by newspaper articles recounting what purported to be the facts of the crime and reporting such matters as the indictment, arraignment, and other pretrial procedural steps; by other newspaper articles and advertisements soliciting contributions for a fund raised for the benefit of the Hile family; by copies of two radio broadcasts by the district attorney; and by allegations that two magazines, 'Official Detective' and 'True Detective,' containing 'detailed and gruesome stories of the crime,' had appeared upon the newsstands of Jackson County several weeks after its commission.

The broadcasts by the district attorney referred to were included in a news...