State v. Krummacher
| Decision Date | 27 June 1974 |
| Citation | 523 P.2d 1009,269 Or. 125 |
| Parties | STATE of Oregon, Petitioner, v. Hazel KRUMMACHER, Respondent. |
| Court | Oregon Supreme Court |
Thomas H. Denney, Asst. Atty. Gen., argued the cause for petitioner. With him on the briefs were Lee Johnson, Atty. Gen., John W. Osburn, former Sol. Gen., and W. Michael Gillette, Sol. Gen., Salem.
Gary D. Babcock, Public Defender, Salem, argued the cause and filed a brief for respondent.
Defendant was convicted of the first degree murder of both her mother-in-law and her father-in-law. She was separately charged with each of the crimes but they were consolidated for trial. She appealed the convictions, and the Court of Appeals reversed the trial court and set aside the convictions on the ground that there was insufficient evidence of defendant's guilt to submit to the jury. 15 Or.App. 234, 515 P.2d 412 (1973). This court granted review.
The State's case was based entirely on circumstantial evidence. No witness was able to place the defendant within a hundred miles of the scene of the crimes at or about their time of commission. Much of the testimony is in dispute. Because the evidence was circumstantial in nature, its narration is, of necessity, voluminous. Defendant was a young woman in her early thirties. She was married to Martin Krummacher, the son of the two victims. She had two daughters. At the time of the crime, one was eleven and the other was fourteen years of age. The elder of the children was defendant's child by a prior marriage. The parental status of the younger child is not clear. Both children were attending school and lived with the defendant and her husband in Portland. Defendant was not employed. Her husband installed and repaired plywood manufacturing machinery which work took him to the location of various mills. The family had money difficulties.
The victims were Herbert and Dorothy Krummacher, 65 and 58 years of age respectively. They lived at Oceanside, near Netarts, on the Oregon Coast, about two hours' drive from Portland. Dorothy worked regularly in a store and Herbert worked as a security guard at a mill. While the evidence is subject to various interpretations, it is ample for the jury to find, and the State contends, that they died during the evening of Tuesday, November 19, 1968, or early in the morning of Wednesday, November 20. Dorothy did not appear at work that morning nor did Herbert put out the flag at their home as he customarily did.
Their bodies were discovered during the afternoon of Friday, November 22, when a sheriff's deputy went to investigate at the request of Dorothy's employer. The house was locked and a screen door and a pane in the upper part of the rear door had to be removed so that the deputy could unlock the door from the inside. Herbert was found in the sole downstairs bedroom, lying on the floor on his back, between his wife's bed and his own. His face was covered with a towel. Dorothy was found on a bed in one of the two upstairs bedrooms covered with a blanket. Her face and neck appeared to have been washed of blood down to the clavicle after she was killed. A washcloth found near the body showed evidence of blood, though the traces remaining were so small that they could not be identified as human blood.
Herbert was shot through the chest, the bullet having exited his body from the rear. The principal artery to a lung was severed, and he bled to death internally into his lung cavity. He could have lived and walked about some minutes after he was shot. Dorothy had three wounds. Two were in the middle chest and she must have died very quickly. One bullet exited through her back, but the other did not and was found lodged in her spine. The third wound was in her forearm which was shot through (probably by the bullet found in her spine). No powder burns were found on the clothing of either victim.
No bullets or empty casings were found other than the bullet lodged in Dorothy's body. There was a bullet hole in a door casing in the kitchen which fitted a .38 caliber bullet, but no bullet was found in the hole. Extended searches were made for the bullets. At least three shots had to have been fired: one into Herbert and two into Dorothy. Other than the pool of blood in which Herbert was lying and the blood on the bodies and their clothing, there was surprisingly little evidence of blood throughout the house. There was one discernible smear, which appeared to be blood, on the wall of the stairs which could have come from the side of a hand. There was evidence of blood about the upstairs washroom basin and on the inside of both the front and back doors. However, the amounts were so insignificant that there was insufficient blood from which to determine the kind or type. Dorothy had eaten about one hour before her death; Herbert about three hours before his death. Two buttons were off of Dorothy's jacket. One was lying on the bed on which she was found and the other in the folds of her clothing. Under this bed there was a lid with some burnt matches in it and a non-filter cigarette butt with some lipstick on it. Dorothy did not smoke. The cigarette butt had no brand name on it. Defendant smoked non-filter Lucky Strikes.
There was no sign of any protracted struggle. Dorothy's glasses were found on the floor of the living room. The legs of the glasses appeared to have been chewed. There were two small dogs in the house. A chain to go around the neck which was attached to the legs of the glasses and which was of small beads had been broken, and the beads were found on the living room floor and on the front porch. Dorothy's purse was on a chair in the dining room and there was $140 in cash in it. Herbert's billfold was found in the pants of a uniform. There was no money in it. There was a telephone on the wall of the downstairs hall. The cord running from the box to the receiver and transmitter had been jerked from the box and the broken end of the cord had been reinserted in the box from which it had come to make it look normal. There was no evidence of a forced entry into the house.
A neighbor who arrived home at 11:30 in the evening on Tuesday the 19th observed that the lights were on in the Krummachers' house. The neighbor retired about 1 a.m. and saw or heard nothing unusual during this time. When the neighbor left the next morning she observed that a Volkswagen usually driven by Herbert had been moved since the time of the neighbor's arrival the night before. Another neighbor testified she heard a gunshot about 10:30 in the evening on the 19th or 20th and about ten minutes later there was a bump on the side of her house and her dog became excited. She let the dog out but did not go out herself.
On the previous weekend the defendant, her two children, her husband, and her husband's sister, Cathy, had visited the victims. They had arrived Saturday evening, November 16 and left in the afternoon of Sunday, November 17, after staying overnight. On the trip the defendant's husband took with him an Ivar Johnson .38 caliber revolver, Smith and Wesson type. It was not used on the trip. Defendant's elder daughter testified she saw her father unload the gun after they returned to their home in Portland. Defendant told the police that her daughter had taken the gun into the house upon their return and her husband had unloaded it. However, at trial she claimed she had lied about the matter to the police and testified she did not know whether the gun was taken into the home upon their return or not. She said her husband usually packed this revolver in his car. She claimed she had lied to the police because she was afraid of implicating her husband.
After the bodies of the victims were discovered, the revolver was searched for but has never been found. The bullet which was taken from the body of Dorothy, because of the rifling marks upon it, was identified by an expert as having been shot from an Ivar Johnson .38 caliber Smith and Wesson type revolver. This make of gun was not popular. There have been about forty different recent manufacturers of .38 caliber handguns, about four of which now manufacture the .38 caliber Smith and Wesson type. Ivar Johnson manufactured about ten per cent of the Smith and Wesson type, or about 150,000 guns since 1853. It ceased manufacture of the gun twelve years before the crimes in question and only recently recommenced. The deceased, Herbert Krummacher, was not known to have owned or possessed a gun of any kind.
The bullet found in Dorothy's body was identified as being a .38 caliber lubaloy copper-washed Smith and Wesson type bullet manufactured by the Western Company, which went out of business three years prior to the crimes in question. The State produced an expert in neutron activation analysis. His purpose was to demonstrate whether it was possible that the fatal bullet came from the same batch of metal as some similar bullets which were in a box in defendant's home. He put the bullet which was recovered from Dorothy's body in a cyclotron to make it radioactive for the purpose of identifying any trace mineral elements of arsenic, antimony, copper, tin or silver which might be in the lead. He then similarly analyzed the lead from bullets in the box in defendant's home. He also analyzed the lead from five other groups of similar bullets by the same manufacturer which were acquired with considerable difficulty--from Tacoma, Washington, from Redding, California, from a bullet collector, and from other sources--because of the rareness of the bullet.
The average of each element in the bullets in each group was established so that those averages could be compared with the trace elements present in the fatal bullet. The analyses showed that the bullet Could have come from the same batch of metal as the group of bullets which was taken from defendant's home but not from the same batch as any of the other...
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§ 20.5 Trial
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