State v. Justice

• Citation: 71 P.2d 798,157 Or. 597
• Parties: STATE v. JUSTICE. [*]
• Decision Date: 29 September 1937
• Court: Supreme Court of Oregon

71 P.2d 798

157 Or. 597

STATE v. JUSTICE. ^[*]

Supreme Court of Oregon

September 29, 1937

In Banc.

Appeal from Circuit Court, Multnomah County; John P. Winter, Judge.

Jack Justice was convicted of murder in the first degree, and sentenced to life imprisonment in the penitentiary, and he appeals.

Affirmed.

C. W. Robison, of Portland (Leland B. Shaw, of Portland, on the brief), for appellant.

James R. Bain, Dist. Atty., and T. B. Handley, Deputy Dist. Atty both of Portland (Joe P. Price, of Portland, on the brief) for the State.

KELLY Justice.

Defendant Jack Justice and Leo Hall were indicted jointly. By the indictment said defendants, Leo Hall and Jack Justice, were accused of the crime of murder in the first degree alleged to have been committed on the 20th day of November, A. D. 1933 in Multnomah county, Or., by killing one W. Frank Akin.

When arraigned, defendant Jack Justice stood mute and refused to plead, whereupon on a plea of not guilty was entered.

Defendant Justice alone was put upon trial. At the time of the trial Hall, having been convicted of murder committed in the State of Washington, was awaiting execution there.

Defendant was not personally present when Akin was killed; but the State's position is that defendant induced Hall to commit the crime in consideration of the payment of $1,200.

There are three assignments of error. By the first, it is urged that the court committed error in permitting the introduction of evidence of an offense not charged in the indictment. One Lawrence Patrick Paulos testified that in March, 1933, he, Paulos, assaulted the deceased, Akin, at the instance of defendant Justice, who promised to secure for him $200 as remuneration for beating the deceased up. The deceased proved too much for Paulos, and the job was disconcerting to Paulos and unsatisfactory to those who desired to have Akin worsted.

In the case of Thiede v. Territory of Utah, 159 U.S 510, 16 S.Ct. 62, 65, 40 L.Ed. 237, a similar question was presented. There the defendant was on trial for the murder of his wife. There was evidence of ill treatment by the defendant of his wife for a number of years. We find this statement in the opinion: "Now, the most of the testimony objected to was introduced for the purpose of showing ill treatment by defendant of deceased, and a state of bitter feeling between them. This, of course, bears on the question of motive, and tends to rebut the presumed improbability of a husband murdering his wife."

The question is treated thus in the Encyclopaedia of Evidence under the subject Homicide: "(1.) Generally-The accused's hostile acts and conduct toward the deceased or assaulted person, both before and after the assault in question, are competent evidence of his intent, malice and premeditation, if not too remote. (2.) Remoteness, -No general rule can be laid down as to the length of time intervening between the hostile conduct and the final assault which will serve to exclude such evidence for remoteness." 6 Enc. of Evid. 627, 628.

The cases there cited are: Anderson v. State, 79 Ala. 5; Ross v. State, 62 Ala. 224; Austin v. State, 14 Ark. 555; Melton v. State, 43 Ark. 367; State v. Pike, 65 Me. 111; Williams v. State, 64 Md. 384, 1 A. 887; People v. Jones, 99 N.Y. 667, 2 N.E. 49; State v. Ellis, 101 N.C. 765, 7 S.E. 704, 9 Am.St.Rep. 49; Burnett v. State, 14 Lea (82 Tenn.) 439; Reed v. Commonwealth, 98 Va. 817, 36 S.E. 399; State v. Pennington, 124 Mo. 388, 27 S.W. 1106; Hamilton v. State, 41 Tex.Cr.R. 644, 56 S.W. 926.

The time between the former assaults and crime charged varies in the different cases above cited from a few minutes or a few hours to a period of eleven months.

In Hamilton v. State, supra, a year had elapsed; in People v. Jones, supra, eleven months; while in Melton v. State, supra, the prior assault was more than a week before the crime charged.

Other cases holding that testimony is admissible of prior assaults by defendant upon deceased are: State v. Grayson, 126 Or. 560, 569, 270 P. 404; Commonwealth v. Ballon, 229 Pa. 323, 78 A. 831; Cole v. State, 21 Ala.App. 601, 110 So. 913; Owen v. State, 52 Tex.Cr.R. 65, 105 S.W. 513; Powdrill v. State, 69 Tex.Cr.R. 340, 155 S.W. 231; People v. Mammilato, 168 Cal. 207, 142 P. 58; People v. Palassou, 14 Cal.App. 123, 111 P. 109; Smallwood v. State, 9 Ga.App. 300, 70 S.E. 1124; State v. Ferrell, 233 Mo. 452, 136 S.W. 709; Holder v. State, 119 Tenn. 178, 104 S.W. 225; Stanton v. State, 70 Tex.Cr.R. 519, 158 S.W 994; State v. Lewis, 80 Wash. 532, 141 P. 1025; People v. Chaves, 122 Cal. 134, 54 P. 596; Roberts v. State, 123 Ga. 146, 51 S.E. 374; Green v. State, 125 Ga. 742, 54 S.E. 724; Henry v. People, 198 Ill. 162, 65 N.E. 120; State v. Callaway, 154 Mo. 91, 55 S.W. 444; Jahnke v. State, 68 Neb. 154, 94 N.W. 158, (reversed on rehearing but not upon the question here involved, 68 Neb. 181, 104 N.W. 154); Miera v. Territory, 13 N.M. 192, 81 P. 586; Medina v. State (Tex.Cr.App.) 49 S.W. 380; Spears v. State, 41 Tex.Cr.R. 527, 56 S.W. 347; Hamilton v. State, supra, (Intervening reconciliation does not make it too remote); State v. Bean, 77 Vt. 384, 60 A. 807; Anderson v. State, 83 Tex.Cr.R. 276, 202 S.W. 953; Hughes v. State, 83 Tex.Cr.App. 550, 204 S.W. 640; Beckworth v. State, 183 Ga. 871, 190 S.E. 184; State v. Horne, 209 N.C. 725, 184 S.E. 470; People v. Pivaroff, 138 Cal.App. 625, 33 P.2d 44; Steward v. State, 127 Tex.Cr.R. 63, 75 S.W(2d) 113; State v. Holmes, 171 S.C. 8, 171 S.E. 440; Sanders v. Commonwealth, 244 Ky. 77, 50 S.W.2d 37; Warner v. Commonwealth, 241 Ky. 118, 43 S.W.2d 524; McGraw v. State, 184 Ark. 342, 42 S.W.2d 373; Gray v. State, 63 Ala. 66; Painter v. People, 147 Ill. 444, 35 N.E. 64; Commonwealth v. Campbell, 89 Mass. (7 Allen) 541, 83 Am.Dec. 705; Walters v. People, 6 Parker, Cr.R. (N.Y.) 15; Phillips v. State, 62 Ark. 119, 34 S.W. 539; Lawrence v. State, 84 Ala. 424, 5 So. 33; State v. Merkley, 74 Iowa, 695, 39 N.W. 111; State v. Patza, 3 La.Ann. 512; State v. Nugent, 71 Mo. 136; State v. Brooks, 1 Ohio Dec. (Reprint) 407, 9 West.Law J. 109; Nicholas v. Commonwealth, 91 Va. 741, 21 S.E. 364.

In People v. Bolton (Cal.App.) 292 P. 693, and Id., 215 Cal. 12, 8 P.2d 116, and Wever v. State, 121 Neb. 816, 238 N.W. 736, it is held that remoteness affects weight and not admissibility.

People v. Flanigan, 42 A.D. 318, 59 N.Y.S. 101, and Albricht v. State, 6 Wis.

74, do not involve a charge of murder and hence are not in point here.

It will be noted that in State v. Grayson, supra, the prior assault occurred three months before the homicide.

In State v. Ryan, 56 Or. 524, 108 P. 1009, testimony of an assault upon a third person, which occurred two hours before the homicide, was held to be admissible, the third person being the one defendant attempted to kill when he committed the homicide.

In Anderson v. State, 83 Tex.Cr.R. 276, 202 S.W. 953, the prior assault occurred five years before the crime charged; in Warner v. Commonwealth, supra, ten months; in Owen v. State, supra, one year; in Powdrill v. State, supra, two or three years; in Miera v. Territory, supra, three years; in Medina v. State, supra, seven months; and in Spears v. State, supra, five years. The facts concerning the prior assault in Commonwealth v. Ballon, supra, are quite similar to those reflected in the record of the instant case. In the Ballon Case only about three weeks intervened between the prior attempt against deceased and the homicide; but, as in the case at bar, the prior attempt was made by a co-conspirator and not by the defendant in person.

The latest utterance of this court with reference to the exceptions to the general rule, that evidence of other crimes than the one charged is inadmissible, is to be found in State v. Gillis, 154 Or. 232, 237, 59 P.2d 679. There, are the exceptions stated in the leading case of People v. Molineux, 168 N.Y. 264, 61 N.E. 286, 62 L.R.A. 193, are set forth.

In the Molineux Case, five exceptions are enumerated, namely, when such testimony tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; (5) the identity of the person charged with the commission of the crime on trial. Clearly, the testimony in the case at bar, the admission of which forms the basis of defendant's first assignment of error, comes within the second and fifth exceptions last above mentioned.

The learned trial judge was careful to instruct the jury that defendant was not on trial for the alleged assault upon deceased by Paulos, and that the only purpose for which the jury could consider such evidence is for the purpose of showing the feeling of animosity that this defendant had toward deceased.

No error was committed in receiving such testimony.

The second assignment of error is based upon the court's action in permitting one Peggy Paulos to testify to alleged statements of Leo Hall made after the commission of the crime charged in the indictment.

These alleged statements were said by the witness to have been related to defendant Justice, whereupon, according to said witness, defendant Justice made admissions against his interest. In other words, the witness related an alleged conversation which she claims to have had with the defendant upon trial. One of the admissions against interest alleged to have been made, when certain...