State v. Ogilvie

• Court: Supreme Court of Oregon
• Writing for the Court: Bailey
• Citation: 180 Or. 365,175 P.2d 454
• Decision Date: 28 October 1946
• Parties: STATE <I>v.</I> OGILVIE

180 Or. 365 175 P.2d 454 STATE
v.
OGILVIE Supreme Court of Oregon. Argued at Pendleton October 28, 1946. Affirmed December 20, 1946. Rehearing denied February 7, 1947.

Criminal law — Weight of evidence — Witnesses

1. Supreme Court cannot weigh the evidence or pass on the credibility of witnesses, since that is the jury's function.

Homicide — Premeditation

2. To constitute "murder in first degree," deliberate and premeditated design to kill must precede the killing by some appreciable length of time, sufficient for reflection, and formation of a definite purpose to kill, and it matters not how short the time is, if it is sufficient for that purpose.

Homicide — Proof of premeditation

3. Direct proof of deliberation and premeditation is not necessary in first-degree murder prosecution, since they may be inferred from the circumstances of the killing.

Homicide — Presumption of malice

4. Where a homicide is shown to have been intentional, unlawful, and deliberate, the law will then presume malice from such facts.

Homicide — First-degree murder — Malice

5. "Malice" which renders a homicide first-degree murder is the intentional killing of one human being by another, without legal justification or excuse, and under circumstances insufficient to reduce the crime to manslaughter.

Criminal law — Conflicting evidence

6. Where evidence in murder prosecution is conflicting, the appellate court will presume that the jury resolved the conflict in the favor of the party for whom the verdict was rendered.

Homicide — First-degree murder

7. Evidence sustained first-degree murder conviction.

Criminal law — Instructions — Legal rights

8. In murder prosecution, court's failure to hold that defendant was exclusive owner of lane in controversy where homicide took place, and had a legal right to maintain fence and exclude deceased, was not error, where court advised jury that defendant had right to be on realty in question, and that, if deceased was the aggressor in the fatal affray, the law would not require defendant to retreat.

[180 Or. 366]

Criminal law — Polling jury

9. Where each member of jury which returned verdict of first-degree murder was polled by clerk who asked each juror individually if verdict was juror's verdict, and each juror answered affirmatively, and no objection was made to manner of polling, defendant's assignment that court erred in failing to have jurors swear individually as to degree of murder was frivolous.

 See 23 C.J., Criminal law, § 1392.
                

Appeal from Circuit Court, Union County.

M.A. BIGGS, Judge.

Boon Cason, of Portland, and Charles R. Cater, of La Grande, for appellant.

George L. Anderson, Jr., District Attorney, and Colon R. Eberhard, former District Attorney pro tem., of La Grande (with George T. Cochran, of La Grande, on brief), for respondent.

Before BELT, Chief Justice, and BAILEY, LUSK, BRAND and HAY, Justices.

AFFIRMED. REHEARING DENIED.

BAILEY, J.

The grand jury of Union County, Oregon, returned an indictment accusing defendant Claude N. Ogilvie of the crime of murder in the first degree committed on the 25th day of July, 1945, by "wilfully, feloniously and unlawfully, purposely and of deliberate and premeditated malice" killing "one Jack Stareo by shooting him, the said Jack Stareo, with a loaded shotgun". Defendant was found guilty of murder in the first degree with a recommendation that his punishment be fixed at life imprisonment. From the judgment sentencing him to life imprisonment in the state penitentiary, defendant has appealed.

1. One, and the principal, contention made by the

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defendant on this appeal is that there is no substantial evidence that defendant "purposely and of deliberate and premeditated malice", committed the crime with which he is charged. In determining this question it is not the province of the court to weigh the evidence or pass upon the credibility of the witnesses; that is the function of the jury.

The crime was committed about a mile and one-half south of Cove, Union county, Oregon. At the time the shooting occurred, Stareo was on land, where he resided, which he had rented from one Stackland in March, 1945. This tract of land is situate about 30 rods east of the Mill creek county road. The land immediately south of the Stackland farm is owned by the Duncans. In 1915 they granted to the defendant a twenty-foot private roadway, commonly referred to as the Ogilvie lane, across the north end of this tract of land, extending from the county road east beyond the Stackland tract. It was used by Ogilvie to reach the county road from his residence, which is more than a quarter of a mile east thereof. Both sides of this lane are fenced, the north fence being the southern boundary of the land leased by Stackland to Stareo. Early in the year 1945, the Duncans leased the land south of the lane to Stareo. In order to reach that tract of land, Stareo crossed the Ogilvie lane through gates which had been installed in the fences on each side of it.

The house in which Stareo lived is approximately 75 feet north of the north boundary of the lane. Adjoining the house at the northeast corner thereof is a wood-shed which is about ten feet farther north. The gates are almost directly south of the wood-shed. These gates are about 108 feet west of the place where the north fence of the lane is connected, at right angles, with a

180 Or. 368

fence which extends therefrom in a northerly direction and is referred to in the evidence as the intersecting fence. The post where the two fences join is referred to by the witnesses as the corner post.

There is a conflict in the evidence as to when the gates were first installed. One witness testified that they were there at the time Stareo moved onto the farm in the latter part of March, 1945. According to the defendant's testimony, Stareo, after he moved onto the farm, cut the fences and put the gates in. There is no dispute, however, that defendant several times either removed the gates entirely or nailed them up, and that Stareo as many times replaced or reopened them.

On July 5, 1945, Stareo was kicked by a horse and had seven ribs fractured. One of his lungs was punctured, causing a slight case of pneumonia. He was in the hospital until the 13th of July, and at the time of the fatal shooting he was weak and under a doctor's care. He was 57 years of age. His left arm was crippled, there being no bone in the arm from his wrist to his elbow, and he was compelled to wear a leather cushion on that arm.

About the middle of July, 1945, while defendant was removing the gates, Jacklyn Stareo, the fifteen year-old daughter of the deceased appeared and protested. She testified that the defendant told her, "You can't use those gates if I have to kill every member of your family."

We now come to the day when the shooting occurred. There is evidence to the following effect: Shortly after noon, Mr. Ogilvie drove down from his home in his farm wagon, parked it on the south side of the lane in front of the south gate and began to close up the north

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gate. Stareo had been taking a nap and when he awoke, about 1:30 p.m., he observed Ogilvie at work on the fence. He left the house in his slippers and said he was going to ask Ogilvie whether he had received the district attorney's letter, which Stareo understood had been written. Stareo remained there a few minutes and on returning to the house was about to put on his shoes when Osmond W. Orton, the blacksmith, with his wife and son, drove up the lane in his automobile and stopped where Ogilvie was working. Thereupon Stareo went back and after visiting with them a while again returned to the house, put on his shoes, got a hammer, a pair of nippers, some staples, and a pail and proceeded to the intersecting fence and began to repair it in two or three places. He proceeded south along the fence until he reached the corner post where he knelt down and began to replace the old staples with new ones. In the meanwhile, Ogilvie was proceeding with removing the gate and repairing the fence. The wagon was still there but the horses had been taken to the barn by the blacksmith's son to be shod.

Ogilvie walked from the gate to the corner where Stareo was working. As he was leaving to return to his wagon, the defendant shook his finger at Stareo in a threatening manner. At least four witnesses testified to that fact. Mrs. Noyes, sister of the deceased, who had arrived from Baker about 1:30 p.m., that day, testified that she heard the defendant say, after shaking his finger at Stareo, "You're damned right I have got a gun", and saw him start for the wagon. Mrs. Stareo's testimony is substantially the same. The daughter testified that she overheard Ogilvie say to her father, after making a gesture with his hand, "I will get my gun." During the time that this

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was transpiring, the daughter, the sister and Mrs. Stareo, were standing near Mrs. Noyes's automobile, which was parked to the south and near the wood-shed, approximately 150 feet from the defendant.

The defendant was within about 15 feet of Stareo when he shook his finger at him and made the above remarks. He hurried back to the wagon, got his shotgun, which was covered with a Mackinaw or blanket, and proceeded toward Stareo. Stareo, when he saw Ogilvie with the gun, lifted himself from his kneeling position on the ground and started toward his house, holding his hands in the air and shouting, "Don't shoot". At the same time Mrs. Stareo and Mrs. Noyes were running toward Ogilvie and also shouting, "Don't shoot". Several witnesses testified that defendant fired two shots. Orton stated that defendant told him, "I shot him twice". Two empty shells were found about 20 feet west of the corner post. One shot struck Stareo in the left side of his back, killing him almost instantly. The place where he fell to the ground was approximately 45 feet from the corner and about 35 feet from...