State v. Leland

• Citation: 227 P.2d 785,190 Or. 598
• Parties: STATE v. LELAND.
• Decision Date: 07 February 1951
• Court: Supreme Court of Oregon

Page 785

227 P.2d 785

190 Or. 598

STATE v. LELAND.

Supreme Court of Oregon.

Feb. 7, 1951.

Thomas H. Ryan, Portland, argued the cause for appellant. On the brief were Ryan & Pelay and Donald McEwen, all of Portland.

John R. Collier, Deputy Dist. Atty., of Portland, argued the cause for respondent. With him on the brief were John B. McCourt, Dist. Atty. and J. Raymond Carskadon, Deputy Dist. Atty., of Portland.

Before LUSK ^*, C. J., and BRAND ^**, ROSSMAN, HAY, LATOURETTE and WARNER, JJ.

LUSK, Justice.

The defendant, Morris Leland, was indicted for first degree murder. He entered a plea of not guilty and also gave notice of an intention to prove insanity. Upon the trial the jury returned a verdict of guilty without recommendation of life imprisonment. The death penalty automatically followed, and the defendant has appealed, assigning twenty alleged errors.

The circumstances of the crime, as revealed by the defendant's confessions, were as follows: At about the hour of a quarter after four on the morning of Friday, August 5, 1949, the defendant accosted Thelma Taylor, a fifteen-year-old girl, on a street in the St. Johns district of the city of Portland, and induced her to accompany him to a lonely spot on the east bank of the Willamette River. At the time of their meeting the girl was on her way to board a bus which would have taken her to the vicinity of Hillsboro where she intended to pick beans. She remained in the company of the defendant until he murdered her on the following morning. On Friday he attempted to have sexual intercourse with her, but desisted on discovering that she was a virgin and that the act hurt her. Sometime during the course of that day he picked up a piece of steel eighteen inches long and one-half inch in diameter with the idea of killing the girl with it. He was also armed with a long knife, which he carried in a scabbard in his belt. The defendant and the girl slept Friday night on the river bank in a clump of trees, and the next morning he killed her by striking her over the head several times with the steel bar and stabbing her twice in the body. He covered her body with drift wood, wiped his finger prints from a lunch pail which the girl had carried, threw the steel bar and knife into the river, disposed of the butts of cigarettes which he had smoked, and left the place.

At about two o'clock on the morning of August 11 the defendant was arrested for the theft of an automobile and brought to the Portland police station. There he told a sergeant of police that he wished to talk to a homicide officer because he had killed a girl. He led the police to the scene of the crime, freely telling them the story of its commission. Later in the morning he was questioned by John R. Collier, deputy district attorney for Multnomah County, and Captain William D. Browne, of the Portland police, and made a full confession, which was taken down by a stenographer. The confession was transcribed and the defendant signed it. Still later in the day he told a police officer that he desired to make a written statement, was furnished pen and paper, and at 10:00 P.M. wrote out and signed another confession, which differs in some details from the statement previously signed by him.

The defendant did not testify, and there is no contradiction in the evidence of the foregoing facts save minor discrepancies in the defendant's own statements. What the officers found at the scene of the crime corroborated the defendant's confessions.

The defendant being without funds, the court appointed counsel to defend him. In the best tradition of the Bar these gentlemen discharged their duty to their client with zeal and ability, both in the trial court and here. That their efforts have been unsuccessful is no reflection upon them, for the crime was so wanton and inhuman, and so amply proved, that any other verdict than one of guilty would have been a shocking miscarriage of justice, while the rights of the defendant were fully protected by a careful and able judge and no errors prejudicial to him were committed.

The first assignment of error is based upon the court's refusal to grant a postponement of the trial. The indictment was returned August 18, 1949. On August 22 Messrs. Thomas H. Ryan and Anthony Pelay, Jr., were appointed defendant's counsel by the court. On August 30 defendant's counsel served on the district attorney a notice of his intention to show in evidence that he was insane and mentally defective at the time of the commission of the alleged crime. On September 8 counsel for the defendant filed a written motion for ninety days' postponement of the date of trial, the case having been set for trial on September 22. The grounds of the motion were that the defendant needed additional time to prepare the case and to have proper psychiatric examination and study; that, owing to the extent and character of the publicity given the case in the Portland newspapers, the defendant would be unable to receive a fair trial at the time set; and that counsel had numerous other cases in the Supreme Court and the Circuit Court. The Circuit Court denied the motion for a ninety-day postponement, but reset the case for the 24th of October. On October 12 the defendant filed a motion for a sixty-day postponement from October 24 on grounds similar to those stated in the previous motion, and on the further grounds that the defendant needed more time in which to obtain the medical records from the Veterans Administration and other pertinent data concerning defendant's medical and psychiatric record, and that the psychiatrist employed by the defendant needed additional time to prepare himself to testify.

The court granted a further continuance until October 27, on which day the trial commenced. It appears that, on the hearing of the motion filed October 12, Mr. Ryan and the judge hearing the motion agreed that the judge might ascertain from Dr. Henry H. Dixon, the psychiatrist employed by the defendant, whether Dr. Dixon would be ready to testify by October 27, and that Mr. Ryan would abide by the judge's decision, and that the judge was told in substance by Dr. Dixon that he would be ready to testify by that time. In fact, Dr. Dixon was not called as a witness until November 4, nine days after the trial commenced. It further appears that the defendant was able to obtain and introduce in evidence the medical records of the Veterans Administration relating to the defendant as well as other medical and psychiatric records.

The trial court's ruling on a motion for postponement will not be disturbed on appeal save for manifest abuse of discretion. State v. Mizis, 48 Or. 165, 175, 85 P. 611, 86 P. 361, and Oregon cases there cited. Actually, sixty-five days elapsed from the day defendant's counsel were appointed until the commencement of the trial and seventy-four days before Dr. Dixon took the witness stand. There is nothing in the record to indicate that Dr. Dixon was not fully prepared to testify at that time. The record shows that on the trial Mr. Ryan renewed the motion for postponement, and, in the course of a statement to the court with reference to the proceeding on the original presentation of the motion, said: 'I disclosed to the court that Dr. Dixon, a psychiatrist whom we had employed in the case, would not be ready for trial, according to his information to us, for two weeks after the 24th of October'. In fact, two weeks elapsed after October 24 before Dr. Dixon was called to testify.

The fears of counsel that they would be unable to obtain evidence, such, for example, as the records of the Veterans Bureau proved to be groundless. It is not now claimed that the defendant was unable to obtain any evidence, otherwise available, because the postponement requested was denied.

The newspaper articles referred to in the motion have not been brought to this court. But, whatever may have been their character, we have nothing but the unsupported statement of counsel that their publication had so excited the public mind that the defendant could not obtain a fair trial unless the requested postponement was granted. The examination of the jurors on their voir dire (save of two jurors with reference to other points) has not been brought to this court, and so we may safely assume that no such inflamed state of the public mind was disclosed by such examination as is claimed by the defendant.

We do not question counsel's good faith in seeking a postponement, but we may observe that frequently, when all other defenses fail, delay is the favorite expedient of the accused in a criminal case to escape paying the penalty for his crime. The defendant is, of course, entitled to a reasonable time to prepare for trial. He is also entitled to a fair trial, which has been well defined as 'a trial before an impartial judge, an honest jury, and in an atmosphere of judicial calm.' 14 Am.Jur., Criminal Law, 853, § 130; State v. Gossett, 117 S.C. 76, 108 S.E. 290, 294, 16 A.L.R. 1299. The Gossett case is cited by counsel for defendant, but it falls far short of supporting their contention. In that case the court held unconstitutional a law which authorized the governor of the state, upon application of the local prosecuting officer, to order an extra term of court. The case was one in which the defendants, who were accused of rape, were brought to trial three days after their indictment and under such circumstances as to lead the court to say of the procedure provided in the section held invalid, that it 'is a bald concession to the spirit of mob law, and presents the spectacle of the law, strong and mighty, bowing to the despotism of the mob, which has been declared to be greater than the tyranny of a despot.' It appears from the opinion that the foreman of the grand jury of Abbeville County (in which the defendants were indicted) made affidavit to the effect that the defendants could not safely be brought to that county on...