State v. Parker

• Decision Date: 30 November 1960
• Citation: State v. Parker, 356 P.2d 88, 225 Or. 88 (Or. 1960)
• Parties: STATE et Oregon, Respondent, v. Lee PARKER, Appellant.
• Court: Oregon Supreme Court

Page 88

356 P.2d 88

225 Or. 88

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

Supreme Court of Oregon.

Argued and Submitted Sept. 14, 1960.

Decided Oct. 12, 1960.

Opinion Clarified Nov. 30, 1960.

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

SLOAN, Justice.

A jury found defendant guilty of second degree murder. He appeals from the judgment of life imprisonment which followed. The crucial assignment of error results from the testimony of witnesses who were permitted to relate statements made to them by an alleged conspirator. The statements were not made in the presence of defendant. The admissibility of that testimony is the decisive question in the case.

The person who was killed had been one Robert Holloway. He was last seen alive when he left a tavern in Portland at about 1:30 a.m. on October 27, 1957. Holloway was then accompanied by defendant and the alleged conspirator, Harold Keith.

Holloway's disappearance became known to the Portland police. By dint of what appears to have been painstaking investigation, the police gained information that the body of Holloway was to be found in an old well on an abandoned tract of land near Vernonia. The well was near the place where Harold Keith lived.

Holloway's body was found in the well. Lime was also found in the well. The body was dressed in the same clothing Holloway was wearing when he left the tavern with defendant and Keith. Death was described as caused by a blow on the head.

The particular testimony which we think requires a reversal of this case came from one Nora Keith. She occupied the status of wife to Harold Keith. She testified that near dawn on the morning of October 27, 1957, defendant and Harold Keith came to the Keith home; that Harold Keith came into her room and told her, not in the presence of defendant, that: '* * * Lee Parker just killed Bob Holloway.' She also quoted Keith as saying at the same time that Parker had knocked Holloway down and hit Holloway's head on the sidewalk.

This testimony of Nora Keith, just mentioned, affords the principal explanation contained in the entire record of the cause and nature of Holloway's death.

Other witnesses were permitted to testify to somewhat similar statements claimed to have been made by Keith. However, the testimony of Nora Keith just quoted could be presumed to be the most damaging. It was first blurted out by the witness before any attempt had been made to show a conspiracy. The same witness was later permitted to relate other activities of defendant and Keith. Nora Keith's testimony, together with that of other witnesses, would be sufficient to show a conspiracy or agreement on the part of Keith to help conceal or obliterate the body of Holloway in the well. But there is no word of evidence of an agreement or a conspiracy to kill.

The only evidence which connected Keith with defendant at a time prior to the alleged killing was given by one witness who testified that she saw the three men, Keith, defendant and Holloway, leave the tavern together. She did not know how long they had been in the tavern, she had not talked with them and, obviously, had no reason to suspect foul play from the nature of the departure; otherwise, it could be inferred that she would have given some outcry or expressed alarm. The witness was a roommate of the deceased Holloway. Nor is there any evidence which reflected illwill upon the part of Keith towards Holloway. For all we know, the men left the tavern in a friendly mood. At least there is a positive lack of any showing that Keith had any purpose or intent to participate in any harm to the deceased Holloway.

The testimony of Nora Keith, quoted above, and that of other witnesses may show that Keith witnessed an altercation between defendant and Holloway, but that testimony gives not even a hint that Keith had any predetermined intent, idea, thought or notion that Holloway was destined to meet foul play when the three men left the tavern together. Certainly, there was no indication that Keith planned to be a participant.

The evidence was admitted on the theory that prima facie evidence of a conspiracy had been presented. ORS 41.900 provides:

'Facts which may be proved, generally. Evidence may be given of the following facts:

* * *

* * *

'(6) After proof of a conspiracy, the declaration or act of a conspirator against his coconspirator, and relating to the conspiracy. * * *'

The testimony given would only have been admissible if there had been prima facie evidence of a meeting of the minds between Keith and defendant to do away with Holloway. State v. Reynolds, 1934, 160 Or. 445, 472, 86 P.2d 413; State v.Lewis, 1908, 51 Or. 467, 94 P. 831; State v. Ryan, 1905, 47 Or. 338, 82 P. 703 , 1 L.R.A., N.S., 862;3 Underhill, Criminal Evidence, (5th ed. 1957) § 855, p. 1942; 2 Wharton, Criminal Evidence, (12th ed. 1955) ch. 8, p. 178, et seq.

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