State v. Rathie

• Decision Date: 28 June 1921
• Citation: 101 Or. 339,199 P. 169
• Parties: STATE v. RATHIE ET AL. [a1]
• Court: Oregon Supreme Court

199 P. 169

101 Or. 339

STATE v. RATHIE ET AL. ^[a1]

Supreme Court of Oregon

June 28, 1921

In Banc.

Appeal from Circuit Court, Umatilla County; Gilbert W. Phelps Judge.

John L Rathie and Elvie D. Kirby, indicted under the name of James Owens, were convicted of murder in the first degree, and they appeal. Affirmed.

The defendants were jointly indicted with Neil Hart, Irvin Stoop and Floyd Henderson, for the crime of murder in the first degree. The indictment charged that--

"The said Neil Hart, John L. Rathie, James Owens, Irvin Le Roy Stoop and Floyd L. Henderson, on the 25th day of July, A. D 1920, in the county of Umatilla and state of Oregon, then and there being, did then and there while acting together unlawfully, feloniously, purposely and of deliberate and premeditated malice, kill one Tillman D. Taylor by shooting him, the said Tillman D. Taylor, with a pistol."

The true name of James Owens is Elvie D. Kirby, and he was prosecuted under that name. Hart entered a plea of guilty and was sentenced to death and thereafter executed. Henderson and Stoop were tried before a jury and convicted of murder in the first degree, with a recommendation for life sentence, and were accordingly sentenced to life imprisonment. The remaining defendants were tried together, were convicted of murder in the first degree without recommendation, and were thereafter sentenced to death, from which judgment they bring this appeal, assigning error as follows:

"(1) The court erred, over defendants' exception, in refusing to grant a change of venue after demand had been made therefor.

"(2) The court erred, over defendants' exception, in not sustaining defendants' challenges for cause to certain jurors, and allowing them to sit to try said cause after the defendants had shown that said jurors had an opinion as to the guilt or innocence of the defendants, and that it would take facts to remove such opinion.

"(3) The court erred, over defendants' exception, in allowing the jurors who had been challenged for cause to sit after the defendants exercised all their peremptory challenges.

"(4) The court erred, over defendants' exception, in permitting members of the grand jury to testify as to statements made by the defendants before the grand jury, while the said grand jury was in session and considering the case of the defendants.

"(5) The court erred, over defendants' exception, in permitting the grand jury to testify in the presence of the jury as to statements made by codefendants and not on trial, which statements were made before the grand jury.

"(6) The court erred, over defendants' exception, in refusing to sustain the defendants' motion, allowing any testimony regarding statements made by the defendants, as the same were involuntary and made under duress, and in violation of the defendants' constitutional rights.

"(7) The court erred, over defendants' exception, in allowing the testimony of grand jurors to be introduced tending to corroborate the testimony of an accomplice.

"(8) The court erred, over defendants' exception, in allowing the testimony to be introduced before the jury regarding commission of crimes being committed in commission of the crime charged.

"(9) The court erred, over defendants' exception, in not withdrawing from the jury's consideration the testimony of Neil Hart, he being an accomplice and his testimony uncorroborated.

"(10) The court erred, over defendants' exception, in failing to withdraw the case from the jury's consideration and dismiss the indictment at the close of the state's case.

"(11) The court erred, over defendants' exception, in permitting the Attorney General to cross-examine defendant John L. Rathie on matters and things not gone into on the direct examination.

"(12) The court erred, over defendants' exception, in permitting the district attorney and Attorney General, in the presence of the jury, to interrogate defendants Owens [Kirby] and Rathie as to the commission of other crimes than charged in the indictment.

"(13) The court erred, over defendants' exception, in permitting the district attorney and Attorney General to interrogate Neil Hart in the presence of the jury as to the commission of crimes; he not being on trial.

"(14) The court erred, over defendants' exception, in permitting the district attorney to testify as to what was said and done by the defendants before the grand jury, and as to statements made by the district attorney to the defendants before the grand jury.

"(15) The court erred, over defendants' exception, in failing to direct the verdict of 'not guilty' at the close of all the testimony.

"(16) The court erred, over defendants' exception, in failing to withdraw from the jury the question of first degree murder.

"(17) The court erred, over defendants' exception, in failing to sustain defendants' objection to testimony offered at the time of the trial.

"(18) The court erred, over defendants' exception, in refusing defendants' request No. 8 (as shown in defendants' bill of exceptions), in modifying the same, and giving the same as modified, as instruction No. 22, J. Tr. 372, for the reason that the same is an invasion of the province of the jury--assumes disputed facts and instructs upon the weight of the testimony.

"The court erred in refusing defendants' request No. 9 (as shown by defendants' bill of exceptions), for the reason that the same is material and proper and an instruction that the court should have given under the form of an indictment and the facts as adduced at the time of the trial.

"(19) The court erred, over defendants' exception, in giving the following instructions: * * *

"In giving instruction No. 17, Tr. 366, for the reason that there was no intent proved, nor was there an attempt to prove the same.

"In giving instruction 18, Tr. 366, 367, for the reason that neither of the defendants so charged used a deadly weapon.

"In giving instruction No. 19, Tr. 367, for the reason that the undisputed fact is that the crime was committed by Neil Hart, he having confessed to the same, and likewise testified that he committed said crime for the reason that he had a personal grudge against the deceased.

"In giving instruction No. 25, Tr. 369, for the reason that the same is misleading, in this, that had the defendants conspired or agreed to break jail, it does not necessarily follow that they, or either of them, deemed or presumed to have consented to, or commanded the taking of the life of Tillman D. Taylor, as was done by Neil Hart.

"In giving instruction No. 26, Tr. 369, for the reason that the same is misleading and advises the jury that if the defendants came together to accomplish a crime or unlawful act or purpose a conspiracy would be proved. * * *

"In giving instruction No. 27, for the reason as set forth above.

"In giving instruction No. 29, for the reason that the same is misleading, and is an invasion of the province of the jury and assumes disputed facts.

"In giving instruction No. 25, for the reason that the same is prejudicial to the rights of the defendants, as there is nothing in the record that would call for such an instruction.

"In giving instruction No. 26, for the reason that the same is prejudicial to the rights of the defendants, as the matters and facts set forth in said instruction are not in dispute. The defendants were attempting to escape jail; the indictment charging conspiracy to take life if necessary. That the matters and things covered by said instruction are not in issue and present to the jury facts by the way of inference which are prejudicial to their rights.

"The same applies to instruction No. 27.

"(20) The court erred in denying, over defendants' exception, the motion for an order to set aside the verdict of the jury and enter a verdict of acquittal.

"(21) The court erred, over defendants' exception, in imposing the death sentence.

"(22) The court erred in denying, over the defendants' exception, defendants' motion for a new trial."

Charles F. Bolin, of Toppanish, Wash. (Thomas H. Wilson, of Yakima, Wash., on the brief), for appellants.

R. I. Keator, Dist. Atty., and C. Z. Randall, Deputy Dist. Atty., both of Pendleton (I. H. Van Winkle, Atty. Gen., on the brief), for the State.

McBRIDE, J. (after stating the facts as above).

The first assignment of error relates to the refusal of the court to grant a change of venue. The defendants presented affidavits tending to show that deceased was a man of exceptionally high character and well regarded in the community, with a wide acquaintance, having been sheriff of the county for many years; that subsequent to the homicide many of the citizens of Pendleton and vicinity joined in a posse to capture defendants and the other persons implicated in the homicide; that when captured and returned to the county jail a large concourse of people gathered at the jail that their numbers were such as to lead those in charge of the prisoners to fear that the latter would be lynched by a mob; and that two of the defendants, but neither of these, were threatened, beaten, and ill treated by persons having them in charge, in order to force them to confess to certain particulars concerning the occurrence and their flight. It also appears from the affidavits that the affiants had made inquiry in various sections of the county and that the bitter feeling in Pendleton was generally reflected in all parts of the county; that the local newspapers had published articles tending to inflame public sentiment against the defendants, which articles had been generally circulated and read throughout the county; and that by reason of all this the affiants were convinced that a fair and impartial jury could not be secured in Umatilla county. One of the...