State v. Pender

• Decision Date: 30 June 1914
• Citation: 72 Or. 94,142 P. 615
• Parties: STATE v. PENDER. [d]
• Court: Oregon Supreme Court

142 P. 615

72 Or. 94

STATE v. PENDER. ^[d]

Supreme Court of Oregon

June 30, 1914

Department 2.

Appeal from Circuit Court, Columbia County; J. A. Eakin, Judge.

John Arthur Pender was convicted of murder in the first degree and sentenced to be hanged, and appeals. Affirmed.

John F. Logan and John A. Jeffrey, both of Portland (Chas E. Lenon and Lester W. Humphreys, both of Portland, on the brief), for appellant. W. B. Dillard, Dist. Atty., of Eugene and A. M. Crawford, Atty. Gen. (E. B. Tongue, of Hillsboro on the brief), for the State.

RAMSEY J.

On the 17th day of October, 1911, the grand jury of Columbia county returned an indictment, charging the defendant, John Arthur Pender, with the commission of the crime of murder in the first degree, committed in said county on September 4, 1911, by the killing of Daisy Wehrmann. The defendant was arraigned, and pleaded not guilty. He was tried twice, and, on the first trial, the jury failed to agree upon a verdict, and were discharged. On the second trial the jury returned a verdict of guilty as charged in the indictment on November 22, 1913. The defendant was allowed 30 days in which to file a motion for a new trial. The motion for a new trial was filed and argued by counsel on January 31, 1914, and taken under advisement by the court, and on February 9, 1914, the court denied said motion. On February 9, 1914, the trial court pronounced sentence upon the defendant, and adjudged that he be hanged. The defendant appeals and assigns six supposed errors, for which he asks that the judgment appealed from be reversed and a new trial granted.

There are 1,348 pages of evidence and many exhibits. We shall not attempt to give a summary of all of the evidence.

1. The first assignment is that the court erred in refusing to direct the jury, at the close of the evidence, to return a verdict of not guilty. In making this motion for a directed verdict, the counsel for the defendant based it upon the contention that there was not sufficient evidence to justify the court in submitting the case to the jury.

The first point for decision is whether there was sufficient evidence to justify the court in submitting the case to the jury. The motion for a directed verdict raises the same question that would have been raised by a motion for a judgment of nonsuit.

The evidence shows that the deceased, Daisy Wehrmann, with her four year old son, Harold, and her husband, Frank Wehrmann, resided in a little cabin about 3 1/2 miles southwest of Scappoose, in Columbia county. Their little cabin was situated in a lonely place in the mountains, with no means of communication with the outside world, except a wagon road, which during a large portion of the time, was in bad condition.

About three-quarters of a mile, in an easterly direction from their mountain home, is a small cabin belonging to Riley and Hassen, and near this last-mentioned cabin were the two tents of the defendant, in which he lived with his wife. The road between the Wehrmann cabin and the tents of the defendant and the cabin of Riley and Hassen is a mountain way, winding among the hills, between these places. The Wehrmann cabin is near the top of the mountain.

The killing of Mrs. Wehrmann and her little boy, Harold, occurred probably on the evening or night of September 4, 1911. The bodies of Mrs. Wehrmann and her child were seen by Elizabeth Seirks and her daughter, through a window of the Wehrmann cabin, on the evening of September 5th and the morning of September 6th, lying on the bed; but the cabin was locked with a padlock, and they could not gain entrance. Mrs. Elizabeth Seirks notified the authorities of what she had seen through the window of the Wehrmann cabin on the morning of the 6th, and Sheriff A. E. Thompson and a deputy went to the cabin about 2 or 3 o'clock on Wednesday, the 6th of September, and found the Wehrmann cabin locked with a padlock, and forced the door open and entered the cabin. They found Mrs. Wehrmann and the little boy dead, lying on the bed.

One bullet entered Mrs. Wehrmann's jawbone on the left side, an inch or two behind the point of the jaw, breaking the jawbone, passing through the root of the tongue and the ear, and coming out behind the right ear on the bone just behind the ear; another bullet went in on the left side above the tip of the same bone, behind the other ear; the third entered at the junction of the breastbone and the collar bone, just above that junction in soft tissue. Mrs. Wehrmann was facing her murderer when he fired each shot, and he was very close to her, as is shown by the fact that her body was badly powder-burned. In addition to the bullet wounds on the person of Mrs. Wehrmann, her skull had been broken with a broad, blunt instrument, and the evidence tends to prove that this wound was inflicted with a hatchet that was found in the cabin. It was covered with blood.

The child also was shot three times. The child seems to have had his back to the murderer when the shots were fired. Two of the bullets entered the back of its head. The wounds on the child were badly powder-burned. The bullet wounds on the mother and the child were made with bullets of the same size.

Dr. A. N. Creadick examined these bodies on September 7th and expressed the opinion that they had been dead about three days.

When Sheriff Thompson entered the cabin, he found the body of Mrs. Wehrmann on the bed, with her legs hanging over the side of the bed; one foot touching the floor, and the other being four or five inches from the floor. Her body was lying diagonally across the bed, possibly a foot and a half or two feet from the head of the bed, her right arm being extended at full length, and the dead child lying partially across her right arm, and its head being on the upper side of the arm. The child was lying on the left side of its face, and the right side of its face being towards its mother. The child was fully dressed. Mrs. Wehrmann had on shoes and stockings and rubbers over the shoes. Her clothes were up around her stomach.

There was blood on the wall and the back of the bed. Near the head of the bed was a pool of blood. Part of the wall was saturated with blood, and the child's head was lying in a pool of blood. Mrs. Wehrmann's head was also lying in blood, and there was blood on the pillows. There was, near the bed, a basin of discolored water. It appeared to be bloody water, but there was not a great amount of blood in it.

Most, if not all, of the six bullets that had been fired into Mrs. Wehrmann and the little boy were found and identified and put in evidence. That this was "a murder most foul" there can be no doubt.

The question for decision is: Was there sufficient evidence educed to authorize the court to submit the case to the jury? The murder was conclusively proved, and the only real question for determination was whether the defendant was the murderer.

The defendant's wife went into the Polk county hop fields on August 30th, about five days before the murder was committed, and he was living in his tent alone, about three-quarters of a mile from the cabin in which Mrs. Wehrmann and the little child were living alone. Mr. Wehrmann was a baker and had regular employment in Portland. He worked there, but went home Saturday nights and stayed with his wife and child until Sunday evenings. Pender knew this. He was acquainted with Mrs. Wehrmann and the little child.

A few days before the murder, when Mr. Wehrmann was at home, Pender was there outside the house, talking to Wehrmann and the child, and Mrs. Wehrmann passed out a chair through the window for one of them to sit on, but she remained in the cabin.

On Monday before Labor Day, about a week before the murder, the defendant was at the residence of Mrs. Anna Nelson, one of the neighbors, and Mrs. Wehrmann called there, and, when the defendant saw her coming, he jumped up and said he "must go." He left the house just as Mrs. Wehrmann entered it, passing very close to her. They saw each other, but neither spoke. A short time before that, the defendant and Mrs. Wehrmann had walked together part of the way towards Scappoose. Why the defendant and Mrs. Wehrmann did not speak to each other when they met at Mrs. Nelson's does not appear from the evidence.

The people of that community had a mail box on a large stump about 150 feet from the defendant's tent. When the defendant or some of the other neighbors went to Scappoose, they usually got their neighbors' mail and carried it to this box and deposited it there for the persons to whom the mail was addressed. The neighbors went there and obtained their mail. The box had a lid, but it was not locked. Sometimes packages other than mail were deposited in this box.

On Saturday before the murder, Mrs. Rachel E. Bates, a neighbor of the defendant, who had made some lace curtains for Mrs. Wehrmann, was at the community mail box, near the defendant's tent, and she wrapped these curtains in paper and wrote Mrs. Wehrmann's name on the package, and caused it to be deposited in the mail box for Mrs. Wehrmann. The defendant was present when this was done, and there is evidence tending to prove that the defendant admitted, after the murder, that he knew that said package was placed in said box by Mrs. Bates on Saturday. The evidence tends also to prove that the defendant admitted, after the murder, that he examined the mail box on Sunday evening, September 3d, and that there was at that time nothing in it. This is an important fact to remember.

There is evidence showing that Mr. Wehrmann's mother resides in Iowa and takes a paper published in Iowa, and, after she reads it, she habitually sends it to Mr. Wehrmann.

The defendant was at Scappoose on Labor Day, September 4, 1911...