State v. Meyers

• Decision Date: 03 August 1910
• Citation: 110 P. 407,57 Or. 50
• Parties: STATE v. MEYERS.
• Court: Oregon Supreme Court

110 P. 407

57 Or. 50

STATE v. MEYERS.

Supreme Court of Oregon

August 3, 1910

Appeal from Circuit Court, Marion County: George H. Burnett, Judge.

George Meyers was convicted of murder, and appeals. Reversed and remanded.

The defendant was indicted for murder in the first degree committed by shooting one Thomas Eckhart.

The evidence as to the immediate fact of the shooting consisted principally of the dying declaration of the deceased and the testimony of defendant. Defendant was occupying a room in a building owned by his father and occupied by his brother Arthur Meyer, and occasionally by himself. On the evening of the shooting, a dispute arose between the brothers, caused by defendant's placing his wet boots on some sofa pillows which were in the room, and Arthur went upon the street and requested deceased, who was a policeman, to put defendant out of the room, but not to arrest him. Deceased went to the room and found defendant asleep in a chair. That part of deceased's dying declaration which was admitted in evidence is as follows: "I, Thomas M. Eckhart, being conscious of my present condition, and realizing no hope of recovery, do make this my final declaration: Then I went to room with Arthur and found George Meyers who was sitting in a chair sleeping. I woke him up and says: 'Moley says his father gave him orders to keep you out.' George says 'All right, I will pack my clothes.' George put his clothes in a small box. I started downstairs with him. He says: 'What are the charges?' I says: 'I don't know, but have orders to lock you up when I found you.' I had hold of his left arm. We walked along to place of shooting and talking friendly on the way. We walked down High street to the city hall, then turned west on Chemeketa and stopped a few feet from outside jail door, then he says, 'Some one in there looking in the window.' I says, 'There might be,' and, as I turned from the window and faced him he says, 'Take that you son of a bitch,' and then shot me, pulling a pistol out of a slicker coat standing at the time beside me while I was holding his arm. I was shot first in the abdomen. Then I went down. He made two or three steps, turned around, and shot me again, this time in the leg. Then he ran across street north and turned down the alley." The testimony of defendant is as follows: "A. The first I remember of Mr. Eckhart being around me when he woke me up. I was sitting in a big rocking chair in the room. My feet were on the other chair. He had knocked my feet off of the chair. He woke me up. I don't know the exact words he used. I had been out horseback riding. I was kind of dazed. I had been drinking some, I will admit. He said something about coming out of there. I says, 'All right.' I don't know the exact words he used. Of course, I was nervous; in fact, I didn't pay much attention to him. So I started to go out and he says, 'Hurry up, I can't wait here all evening.' I says, 'All right;' I says, 'Is it raining?' He says, 'I don't know. It may be.' I says, 'I will put on my slicker, maybe it is raining.' I got my slicker, and we started down the steps. I asked him what the charges were, and he said he didn't know, he had orders to lock me up. I didn't say anything to him until we got in front of Yannke's livery stable. Q. Just opposite the courthouse? A. Yes; I asked if he had a warrant for me, and he said, 'No.' I broke away from him. I says, 'You have no right to take me without a warrant.' He says, 'God damn you, I will take you anyway.' He twisted my arm back and pushed me along. He said, if I couldn't come along decent, he had a way of taking me. I kept talking to him the best I could under the circumstances. He told me to keep my mouth shut and come along. He had hold of my arm practically until we got to the city hall. I told him he was hurting me, and asked if he would let go of my arm. He did and grabbed me by the shoulder on the left side. After we turned the corner at the city hall and got pretty close to the office of the city marshal, I says, 'Will you let me phone to Doc. Gibson?' He says, 'No; I won't.' I kind of thought over the matter, and I thought, if anybody knew what I was arrested for, he would surely know. I knew I had not done anything. I says, 'I will be damned if I go in there.' I broke away from him. He turned and says, 'By God you will go in there!' He reached for his hip pocket. At that I fired the shot. Q. Did you realize at the time how many shots you fired? A. No, sir; I did not." The defendant also denied that he had the alleged conversation related by the witness Sol Anderson. Arthur Meyers testified, among other things, as follows: "Q. What did you do after you went down? A. I walked up and down the street a few times, and didn't see anybody. I walked down by the White House Restaurant. Mr Eckhart was in there. I motioned for him to come out. I says 'George is up in my room, and I cannot do anything with him. I would like for you to come up there and take him out.' I says, 'I don't want him arrested. I just want him taken out.' He went up there with me and George was asleep. He woke him up and says, 'George, Arthur wants you out of the room. You had better get up and put on your coat and come on; by the way, I have orders to arrest you on sight.' I spoke up and asked what he was arrested for. He said he didn't know; that Doc. Gibson told him to arrest him when he saw him. George said all right, he would go. He went over and got his coat and started out with him. Q. Where was his coat? A. Hanging up in the partition. The room is a large room. In one end is a partition about eight or nine feet high. It was hanging on the other side of the partition, the side away from the main part of the room. Q. What kind of a coat did he get? A. A black slicker." There is evidence tending to show that deceased fell at the first shot; that defendant shot him again, wounding him in the arm, then ran a short distance, stopped, and fired a third shot, which did not take effect.

It was admitted by the state that no order had been given or warrant issued for defendant's arrest, and there is no testimony indicating that defendant had been guilty or accused of any offense against the law at the time Eckhart arrested him. During the trial the state called...