State v. Parker

• Decision Date: 05 September 1963
• Citation: 235 Or. 366,384 P.2d 986
• Parties: STATE of Oregon, Respondent, v. Lee PARKER, Appellant.
• Court: Oregon Supreme Court

Page 986

384 P.2d 986

235 Or. 366

STATE of Oregon, Respondent, v. Lee PARKER, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted April 2, 1963.

Decided Sept. 5, 1963.

Douglas J. White, Jr., and William J. Sundstrom, Portland, argued the cause and filed a brief for appellant.

Oscar D. Howlett, Deputy Dist. Atty., for Multnomah County, argued the cause for respondent. On the brief was George Van Hoomissen, Dist. Atty., for Multnomah County.

Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, JJ.

O'CONNELL, Justice.

Defendant appeals from a judgment of conviction for the crime of murder in the second degree. This is defendant's second appeal. In State v. Parker, 225 Or. 88, 356 P.2d 88 (1960) we reversed a judgment of conviction for second degree murder because of error in admitting hearsay testimony.

Two of defendant's assignments of error require comment. These are (1) that the state failed to establish venue in Multnomah county where defendant was tried, ¹ and (2) that the misconduct of state's counsel during his final argument to the jury deprived defendant of a fair trial.

Defendant was charged with killing Robert Holloway. Holloway's body was found in a well in Columbia county. Other facts are set out in detail in our former opinion. Defendant contends that there is no evidence of any acts committed by defendant in Multnomah county requisite to the consummation of the crime with which he was charged. ²

There is no evidence tending to show in which county the fatal blow was struck or where Holloway died. However, there was evidence that defendant purchased whisky in Portland and that it was used by defendant to lure Holloway into an automobile in Portland for a trip from which he never returned. Violet Bostwick, a witness for the prosecution, testified as follows:

'Q All right. Now, did he [Parker] tell you anything else * * *

'A Well, he talked about--he told me that he had gotten Holloway into the car to take him.

'Q Did he tell you how he had gotten him into the car?

'A Well, I asked him, I said, 'Well how could--if you and Holloway and Keith were all arguing,' I said, I asked him how he could get Holloway into the car; and he said that they had, that he had gotten two fifths of whisky. He said Holloway would go anywhere for a drink, and then he said that--well, anyway, he was--I don't remember his exact words, but I know he was angry at Keith because Keith had drank, because he said that Keith had drank most of the whisky.'

The question presented is whether the described conduct is within the language of ORS 131.340, 'acts or effects thereof constituting or requisite to the consummation of the crime.' ³

Similar statutes in other states have been variously interpreted. ⁴ In some jurisdictions it is held that if the act committed in one county does not constitute an element of the crime charged, that county does not have venue. ⁵ On the other hand, it has been held that the act in the county in which defendant is tried need not be an essential element of the crime. ⁶

In the present case defendant's acts in Multnomah county as described by witness Bostwick were not essential elements of the crime of second degree murder. But it is not necessary to determine whether ORS 131.340 is to be construed broadly as in People v. Megladdery, 40 Cal.App.2d 748, 106 P.2d 84 (1940), or narrowly as in State v. Rider, 46 Kan. 332, 26 P. 745 (1891). There is another basis upon which veune in Multnomah county may be sustained. Defendant was indicted for the crime of first degree murder. An element of that crime is 'deliberate and premeditated malice.' ORS 163.010. If defendant had been tried upon the crime charged in the indictment, the evidence of defendant's conduct in enticing Holloway into the automobile in Portland would have been sufficient to establish premeditation. Thus, if in the original trial there had been a verdict of guilty of the crime of first degree murder, venue in Multnomah county would have been made out. However, the jury in the first trial returned a verdict of the lesser included crime of second degree murder. To say that venue was lost as a result of this fortuitous circumstance would attach a significance to the requirement of venue far beyond its purpose.

The retrial of the cause may be viewed in the same light. The reversal of the judgment and remand for a new trial in the first appeal operated to revest jurisdiction and venue in the Multnomah county circuit court, the original indictment continuing to serve as the basis for the charge, subject to the rule that the defendant cannot be tried for a crime greater than that for which he has been convicted in the first trial. We hold that venue was properly laid in Multnomah county.

We now turn to the second of the assignments of error noted above. Defendant contends that error was committed when the state elicited from William Dana a statement that he had sold quick lime to someone on October 28, 1957, the day after the alleged murder. The evidence established that decedent's body was found in a well which contained lime. Violet Bostwick testified that defendant had 'mentioned something about some lime, and he said that they had--I asked him what they used the lime for, and he said, 'To get rid of identification.' He said that he had, he had bought, he had been thinking about buying the lime at some small place and then he thought better about it and bought it at a large concern where there was more sales or more people coming and going and he figured it wouldn't have been noticed so much.'

Later the state called William Dana, an employee of Masons Supply Company, who testified that he had sold a small quantity of quick lime to someone on October 28, 1957. He stated that 'It is very irregular to just sell four sacks of hot lime to a cash customer such as this was' because 'it has a limited use.' He explained that hot lime 'has to be slaked or hydrated, which means combining it with water, before it can be used, and very few people use it for--buy it before it has been slaked. Slaked lime is sold, as such, and you don't have to go through the process of boiling it out with water. That is why it is called 'hot lime'. It boils when you combine it with water.' Dana stated that he could not remember having sold anything to defendant but that he had seen defendant in the Masons Supply Company store on some occasion. It was established that Masons Supply Company was one of the largest building supply companies in the city.

On motion of the defense, Dana's testimony was stricken from the record on the ground that the testimony of the witness had not been connected in any way to the defendant. The jury was instructed not to consider the stricken testimony in their deliberations.

Dana's testimony was relevant and it would not have been error to submit it to the jury. The jury was entitled to believe Violet Bostwick's testimony that defendant bought hot lime at a 'large concern.' The Masons Supply Company was a 'large concern.' Small quantities of quick lime are not usually sold. A small quantity of quick lime was used upon the decedent's body. Defendant had been seen in the Masons Supply Company store at some time. From this evidence it would not be unreasonable for the jury to infer that defendant had purchased the lime sold by Dana.

It is alleged that counsel for the state was guilty of misconduct during his argument to the jury in making reference to a tape recording which the court had ruled inadmissible. The state had sought to introduce a tape recording of a conversation between Lieutenant Nelder of the San Francisco Police Department and Violet Bostwick. Defense counsel objected to the introduction and playing of the recording on the ground that it was not properly authenticated. The objection was overruled but the court refused to admit the exhibit for the reason which appears in the following colloquy.

'THE COURT: * * * I don't know why the State is offering that exhibit, and I might ask one question, and then I will rule on the matter. Is it your thought that this particular film will displace statements by this witness that coincide with what she has testified to today?

'MR. HOWLETT: Yes, Your Honor. It will further----

'THE COURT: That is the purpose of it, isn't it?

'MR. HOWLETT: One purpose. The second purpose is for the edification of the jury as to the nature and manner in which she was interrogated by Lieutenant Nelder at the time that she gave her first statement to him.

'THE COURT: You don't want it for impeaching purposes?

'MR. HOWLETT: No, Your Honor.

'THE COURT: Well, I think the rule is pretty well settled. Evidence which is cumulative merely shows that something has been said on other occasions. One, two, or three times is not proper. The credibility of this witness is for the jury under all of the circumstances presented during the course of this trial. I will sustain the objection to the offer.

'MR. HOWLETT: May I stress the second point that because of the cross-examination and the assertion on cross-examination through this witness and creating the innuendo that she was threatened and caused to tell a lie----

'MR. SUNDSTROM: Wait a minute. That is an innuendo of the----

'THE COURT: Just a minute, gentlemen. One at a time, now.

'MR. HOWLETT: That this----

'THE COURT: Well, I understand your second point and if the witness was claiming that, herself, I would take a different view of it. I will adhere to my previous ruling and sustain the objection.

'MR. HOWLETT: No further questions.'

After both sides had rested and when counsel and the trial judge were in chambers defendant's counsel asked counsel for the state if he intended 'to make an issue out of the tape recording to the extent that it has been placed in our hands, or, are you willing to accept the fact that we have not heard it or have not played it?' At first the reply was, 'The only issue that...