State v. Krummacher

• Decision Date: 12 February 1974
• Citation: 515 P.2d 412,15 Or.App. 234
• Parties: STATE of Oregon, Respondent, v. Hazel KRUMMACHER, Appellant.
• Court: Oregon Court of Appeals

Page 412

515 P.2d 412

15 Or.App. 234

STATE of Oregon, Respondent, v. Hazel KRUMMACHER, Appellant.

Court of Appeals of Oregon.

Argued and Submitted Aug. 24, 1973.

Decided Nov. 5, 1973.

Rehearing Denied Nov. 29, 1973.

Review Denied Feb. 12, 1974.

Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellant.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen. and John W. Osburn, Sol. Gen., Salem.

Before LANGTRY, P.J., and FORT and THORNTON, JJ.

LANGTRY, Presiding Judge.

Defendant appeals from consolidated jury trial convictions of first degree murder of Dorothy and Herbert Krummacher, husband and wife, on or about November, 19, 1968 in Oceanside, Oregon. ¹ We conclude that the convictions must be reversed under the principles reviewed and enunciated in State v. Voit/Strong, Or.App., 96 Adv.Sh. 1077, 506 P.2d 734, Sup.Ct. review denied (1973). In order to explain this conclusion it is necessary to detail the extensive circumstantial evidence upon which the convictions were based.

Defendant was the wife of Martin Krummacher, son of the victims. The Martin Krummachers lived in Portland and the victims, Dorothy and Herbert, lived in Oceanside, Tillamook County, Oregon. Dorothy and Herbert were having trouble in their marriage and some evidence indicated they were preparing to separate. Evidence also indicated that Martin and defendant were having marital and financial trouble. During the four years between the murders and the trial, they were divorced. It takes about two hours to drive an automobile between Portland and Oceanside. On Saturday and Sunday, November 16 and 17, 1968, Martin, the defendant, the defendant's two daughters, aged 11 and 14, and Martin's sister visited the victims at Oceanside. The victims regularly occupied a downstairs bedroom in their home. During the visit Martin and defendant slept in the right-hand upstairs bedroom, and the daughters and the sister occupied the left-hand upstairs bedroom which was separated from the other by the head of the stairway and a bathroom. A .38 caliber Ivar Johnson S & W handgun which Martin had purchased secondhand was taken on this trip. It had previously misfired and Martin had taken it to a gunsmith to be repaired and blued. The defendant had picked the gun up from the gunsmith prior to the trip but it had not been further test fired before the trip. There was conflicting evidence as to whether it was test fired before the trip, but it was not fired that weekend. The evidence was conflicting as to whether the gun was returned to Martin's home at the end of the trip. Defendant first told police officers that her daughter Arlene had taken it into the house at the end of the trip, but later admitted that this was not true; she contends that she made the statement because she was concerned about whether Martin still had the gun. Arlene did not remember whether or not she brought the gun back into the house or whether she even saw it again after their return. Arlene was only 14 at the time of the murders and, in the four years that had elapsed since then, she had apparently forgotten the details of the return trip from Oceanside. She did testify, however, that whenever Martin became angry she would hide the bullets in the house. Martin's testimony was indefinite about whether the gun was taken into the house.

On Friday, November 22, when the victim Dorothy for several days had not been to her place of employment in Tillamook, a few miles distant from Oceanside, her employer obtained a deputy sheriff's help and went to the Oceanside home. Dogs were noted inside the home. There was no other response so they forced entry and found the body of Herbert, as ordinarily clothed, in the downstairs bedroom. He had been killed by one shot which had completely passed through his chest cavity. His face was covered with a wash cloth. The body of Dorothy was found on a bed in the left-hand upstairs bedroom. There was no evidence of a struggle in either place. Dorothy was clothed in a slip and other undergarments. She had been shot three times and later, during autopsy, one bullet was found lodged inside her; the other bullets had passed through her. Her face had been washed off (presumably of blood) down to the clavicle area. Her body was completely covered with a blanket. A nightgown and some other items of feminine clothing were on the toilet of the Dorothy usually bathed early each morning in the upstairs bathroom.

No weapon was located and no empty shell casings or bullets were found anywhere except for the one lodged in Dorothy's body. ² A metal detector was used in and around the house in the search for bullets. A hole consistent with the size of a .38 slug, about 3/4-inch deep, was found in a doorjamb downstairs but there was no bullet in it.

A fruit jar lid was under the bed where Dorothy's body was found and in the lid were burned matches and a cigarette butt of a nonfilter type which 'possibly' had lipstick markings on it. None of the three females who had occupied that bedroom on the previous weekend smoked. Defendant smoked nonfiltered Lucky Strikes. Dorothy did not smoke and Herbert and Martin smoked various filtered brands. No evidence was introduced concerning any tests relating to the cigarette butt found in the jar lid. Dorothy's purse containing $140 in cash was in plain sight in the kitchen. Herbert's billfold was in the pants of a security guard uniform he wore in connection with his work. There was no evidence of forced entry or a theft about the premises. Several traces of blood and washed-out blood were found in various places around the house and a fingerprint of defendant was found on the outside door casing of the left upstairs bedroom. The telephone cord had been torn loose and then jammed back into position so that the telephone would ring but no voice transmission could occur on it. There were utensils on the kitchen stove consistent with a dinner's having been prepared but no evidence was introduced about food or traces of food thereon.

Two pathologists testified, one for the state and one for the defendant. The time of death is critical and the evidence about it is confusing. Dorothy's stomach was relatively full, showing that she had recently eaten peas and something like chicken and celery. Herbert's stomach was almost completely empty but contained some peas. There was advance decomposition of Dorothy's body and almost none in Herbert's. The testimony of the state's pathologist was that in spite of these facts it was possible that both victims had died at near the same time. He said with reference to the time of death 'that the maximum here would be somewhere around 72 hours; minimum, I'm sure at least 48 hours.' The autopsies were performed in the early evening hours of November 22. The opinion of defendant's pathologist, based upon hypothetical questions framed from the results of the autopsies, was that Dorothy had been dead from two to three days while Herbert had been dead 24 to 30 hours. The pathologists generally agreed that factors such as the obesity of the victims, the temperature of the rooms in which they were respectively situated, the coverings over them, etc., could have had a bearing upon the conditions of their bodies which in turn formed part of the bases for their opinions about how long the victims had been dead. Both agreed it was obvious that Dorothy had recently before her death eaten a meal consistent with a lunch or dinner whereas Herbert's death occurred at least several hours after the eating of any ordinary meal.

On November 18, the day after the family trip to Oceanside, the defendant went shopping in Portland with credit cards belonging to Dorothy, which she said Dorothy had loaned to her for that purpose. She first used such a card at Penney's and then another card at a Lerner's shop. At Penney's she purchased some shoes for Arlene, signing Dorothy's name; at Lerner's she selected some dresses. The credit card tendered at Lerner's had expired and she signed Dorothy's name to an application for a renewal and said that after it was processed she would come back to pick up the purchases and the new card. She did not return. When first questioned by the police about this, she denied being in Lerner's; at trial she admitted this was a lie. A short time after the discovery of the victims the testified she flushed all of Dorothy's credit cards down the toilet because she feared their possession would cast suspicion upon her.

On the morning of November 19 Martin left for his work which was connected with the installation of machinery. After the children were off to school defendant testified that she made a telephone call (about 9:15 a.m.) to Dorothy at Oceanside concerning some cloth that Dorothy wanted her to purchase. She testified that immediately thereafter she decided to go to Seattle seeking employment, in view of the fact that their family was in financial stress. She went to Seattle and there applied at several stores for a job as a meat wrapper. She testified she started back around 9 o'clock in the evening and that she arrived home at around 2 a.m. and immediately went to bed, telling Martin where she had been. Martin testified that she returned around 4 a.m. After she had described the places where she had applied for work in Seattle, investigating police were able to find only one person who definitely recalled seeing her and he...