State v. Reyes

• Decision Date: 06 March 1957
• Citation: 209 Or. 595,308 P.2d 182
• Parties: The STATE of Oregon, Respondent, v. Martin B. REYES, Appellant.
• Court: Oregon Supreme Court

Page 182

308 P.2d 182

209 Or. 595

The STATE of Oregon, Respondent, v. Martin B. REYES, Appellant.

Supreme Court of Oregon.

Argued Dec. 19, 1956.

Decided March 6, 1957.

Robert Mix, Corvallis, argued the cause for appellant. On the briefs were Mix & Fenner, Corvallis.

James W. Walton, Deputy Dist. Atty., and Sidney B. Lewis, Jr., Dist. Atty., Corvallis, argued the cause and filed a brief for respondent.

Before TOOZE ^*, Acting C. J., and ROSSMAN, LUSK, BRAND and PERRY ^**, JJ.

LUSK, Justice.

The defendant, Martin B. Reyes, was convicted of second degree murder and has appealed.

For an understanding of the legal questions raised by defendant's assignments of error a somewhat full statement of the evidence is required.

On October 24, 1955, the defendant, Clifford 'Sonny' Shadd, and Rene Selig were prisoners in the county jail in Grants Pass, Oregon. At the hour of 3:20 on the afternoon of that day, Nelson F. Whipps, a deputy sheriff for Lane County, arrived at the Grants Pass jail and the prisoners named were surrendered to him for transportation to Eugene. The deputy drove them to Eugene in a sheriff's car. The defendant had a gun concealed on his person, which he had shown to Shadd, and en route he told Shadd that, when they stopped to eat and his handcuffs were removed, he would shoot the deputy. The party (other than Selig, who had previously been let out of the car) arrived at the Eugene municipal jail about 7:30 P.M. Inside the jail, as a part 'of a normal routine skin search,' Reyes was ordered by Eugene Police Officer Lockhart to remove his clothes. He responded by drawing a .45 Colt automatic pistol from under his belt, forced Lockhart to unlock the door to the county 'tank,' took the keys from Lockhart and locked him in a cell, released Shadd from another cell, and held up Whipps at the point of the .45 automatic and relieved him of his gun, a .38 revolver, and of the key to the sheriff's car. The defendant and Shadd then fled northward in the car. At a point about three and one-half miles north of Junction City on Highway 99W they flagged down a station wagon driven by Hobart H. Littlefield, Jr., who was accompanied by his wife and their three children. The defendant forced the Littlefields at gunpoint into the sheriff's car and continued on northward for several miles at a speed of 80 to 90 miles an hour, when he turned the car about and drove back to the vicinity where the station wagon had been left. Here the defendant robbed Littlefield of his money, a $10 bill and possibly a $1 bill, at gunpoint. He and Shadd then locked Littlefield and his family in the sheriff's car and left the scene in the station wagon traveling north. This occurred between 8:45 and 9:00 P.M. The highway on which they were traveling took them toward Corvallis. Meanwhile, a description of the station wagon had been broadcast by police radio, and Basil Carl Branson, a Corvallis police patrolman, had stationed himself on a side road near the highway, a short distance south of the city limits. As he waited there the station wagon came by at a speed of approximately 90 miles an hour, and the officer, recognizing the car from the description which he had heard, gave chase, radioing to other cars that he was in pursuit. Inside the city the station wagon was wrecked as it turned a street corner, and the defendant and Shadd leapt out. The officer captured Shadd immediately, but Reyes made off in the darkness. The .38 revolver which the defendant had taken from Deputy Sheriff Whipps was later found in the station wagon.

At about this time the victim of the homicide, James Roy Appelgate, was driving his automobile in downtown Corvallis, having as his passengers his two daughters, Elaine aged 16 and Susan aged 11, and their friend, Dorothy Blacker aged 14. Elaine and Dorothy had been to a movie, and Mr. Appelgate, accompanied by Susan, had met them after the show was over. A few blocks from the scene of the crime Appelgate took into the car William Bottemiller, a member of the Corvallis police force, who was at the time in pursuit of the defendant. Acting under Bottemiller's directions, Appelgate drove the car to a service station known as Ben's Associated Service at the corner of Third and Van Buren streets, and parked the car at the rear of the service station building. Although witnesses were prevented by rulings of the court from telling the jury why Bottemiller entered the car and why Appelgate permitted him to do so, it is evident that their common purpose was the pursuit and apprehension of the defendant, who was seen to 'cut across Third street' as the Appelgate car neared the service station. The service station lot is bordered on the north by Van Buren street, on the east by Third street, on the west by an alley, and on the south by a lattice fence which runs towards the alley as far as the back of a frame garage, the front of which abuts on the alley. The service station building faces north, and between the rear of it and the fence is a space for parking cars. Along the side of the frame garage and on the service station property there was at the time a rack on which were three oil barrels. The Appelgate car was parked between the rear of the building and the fence and near the southeast corner of the building.

Bottemiller got out of the car and went around the east side of the building in search of the defendant, who, during this time, appears to have been crouching under the oil barrels on the rack. Appelgate, who had also gotten out of the car and was standing near the door on the driver's side, saw the defendant and exclaimed, 'Here he is.' The defendant stood up and drew his gun, and at about that time Bottemiller returned, whereupon the defendant ordered Bottemiller to put up his hands, and, when the latter hesitated, said, 'There's kids in the car.' Bottemiller put up his hands, and, in obedience to the defendant's command, went over to the fence facing it. Bottemiller testified:

'I went over to the fence, toward the west end of the fence, and put up my hands. He came up to me and held the .45 in his left hand at a distance like this [indicating]. He didn't point it exactly at me. He pointed it off to the side and with his right hand he reached for my holster and tried to take my gun out of the holster. It didn't come out so he reached in and released the spring. That is on the holster itself. Then he pulled it out. Then he backed away from me.'

The officer's gun was a .38 caliber Smith and Wesson revolver. The defendant backed towards the rear of Appelgate's car and to the left or driver's side, and pointed his gun at Appelgate, motioning with his gun and his head toward the car. He attempted to open the left-hand back door of the car, but the children had locked the doors and rolled up the windows. The defendant and Appelgate exchanged words, and Appelgate 'jumped' the defendant, and they struggled, moving as they did so past the back of the car and into the alley, where several shots were fired. Appelgate was unarmed. The .38 caliber revolver, which was fully loaded at the time that the defendant seized it, was emptied and three or, possibly, four shots were fired from the automatic. Three shots from the .38 revolver took effect in Appelgate's chest, and at the third he fell to the ground. As he fell the defendant dropped the automatic and fled, and Bottemiller, who had witnessed the struggle, retrieved the gun, and gave chase. Bottemiller fired twice at the defendant and once in the air, but the defendant made good his escape. He was captured the next evening in Monmouth. The .38 revolver which he had taken from Bottemiller was recovered later in some shrubbery where the defendant had thrown it in his flight. When the defendant was arrested he had a bullet wound in his left forearm, apparently inflicted by a .38 caliber pistol.

Appelgate was removed to the hospital where he lingered until the evening of the following day, when he died from the effect of the gunshot wounds. On his admission to the hospital he was conscious, but in a state of profound shock, and had no pulse or blood pressure. His wife was summoned and saw him about 10:30 P.M. In the presence and hearing of Appelgate a nurse, Jean Allen, asked the attending physician if she should prepare major surgery, and was told that 'his condition was too critical that there was not much hope, and that treatment could continue as it was.' Appelgate was acquainted with the nurse, and he said to her while his wife was present, 'This is a rough one, isn't it, Jean?' She said, 'Yes, it is, but you'll be all right,' but he answered, saying, 'Don't kid me, I know I won't be.' He said to his wife, or in her presence, 'I almost got him' and 'He sure got me three times,' and 'Anyway I saved my girls', and further, 'He was right up next to me when he shot me.'

Two of the three bullets which hit the deceased entered the front of his body and emerged from the back. The third was a .38 caliber bullet, which was found at the end of the bullet path in the back. The physical evidence indicated that the gun was within 8 or 10 inches of the body when it was fired. It was testified that the bullet removed from the victim's back was fired from Bottemiller's revolver.

The first four assignments of error present identical or closely related questions of law. The defendant filed a demurrer to the indictment based on the grounds that the facts stated '* * * do not constitute a crime,' and that the crime charged and the particular circumstances of the crime charged are not directly and certainly stated, such circumstances being necessary to constitute a complete crime as required by ORS 132.530. It is urged in support of the demurrer that the defendant was entitled to be informed by the indictment as to whether or not the state would seek to prove 'felony murder,' that is, a killing in the commission of or attempt to commit rape, arson, robbery or burglary,...