State v. Sack

• Decision Date: 11 July 1956
• Citation: 300 P.2d 427,210 Or. 552
• Parties: The STATE of Oregon, Respondent, v. George F. SACK, Appellant.
• Court: Oregon Supreme Court

Page 427

300 P.2d 427

210 Or. 552

The STATE of Oregon, Respondent, v. George F. SACK, Appellant.

Supreme Court of Oregon.

Argued April 18, 1956.

Decided July 11, 1956.

John P. Hannon, Portland, argued the cause and filed a brief for appellant.

J. Raymond Carskadon, Sp. Deputy Dist. Atty. for Multnomah County, Portland, argued the cause for respondent. On the brief were Robert Y. Thornton, Atty. Gen., and William M. Langley, Dist. Atty. for Multnomah County, Portland.

Before WARNER, C. J., and TOOZE, ROSSMAN, LUSK, BRAND and PERRY, JJ.

BRAND, Justice.

The defendant George Frank Sack was accused by indictment of the crime of murder in the first degree under the provisions of ORS 163.010. Upon trial by a jury he was found guilty as charged in the indictment and sentenced to death. Defendant appeals. The indictment, so far as material, reads as follows:

'George F. Sack is accused by the Grand Jury of the County of Multnomah and State of Oregon, by this indictment of the crime of

'Murder in the First Degree committed as follows:

'The said George F. Sack on the 16th day of February A.D. 1954, in the County of Multnomah and State of Oregon, then and there being, did then and there unlawfully and feloniously, purposely, and of deliberate and premeditated malice, kill one Goldie Sack by placing her in a closed trunk compartment of an automobile whereby she was asphyxiated, contrary to the Statutes', etc.

By his 25th and last assignment of error the defendant asserts that the court erred in denying his motion for a directed verdict. The grounds specified in the motion may be summarized as follows:

1. No proof of venue.

2. No proof of the corpus delicti.

3. No evidence connecting defendant with the crime.

4. No evidence that the deceased Goldie Sack was in the car or was unconscious.

The evidence of guilt was circumstantial. The commission of the crime by the defendant may be lawfully established by circumstantial evidence alone but the burden is upon the state to present satisfactory evidence with proof beyond reasonable doubt, and we recognize that such evidence must meet the test set forth in State v. Dennis, 177 Or. 73, 159 P.2d 838, 161 P.2d 670, and cases there cited. However, we must also be guilded by the rule that a motion for directed verdict is in the nature of a demurrer to the evidence. It admits the truth of the evidence as disclosed by the record 'and every reasonable inference that might be drawn therefrom.' State v. Rosser, 162 Or. 293, 340, 86 P.2d 441, 87 P.2d 783, 91 P.2d 295; State v. Dennis, supra; State v. Hansen, 195 Or. 169, 194, 244 P.2d 990.

We proceed to a consideration of the evidence. We will first consider the evidence bearing upon motive, for though the existence of motive is not indispensable to conviction, such proof is of 'great importance' in cases depending on circumstantial evidence. State v. Hembree, 54 Or. 463, 103 P. 1008; State v. Hansen, supra.

Mrs. Goldie Sack came to Portland in the summer of 1952 and married the defendant in September of that year. She died in February, 1954. Defendant's brief concedes that there was 'some evidence of two quarrels, one in the Spring of 1953 and another in early August of the same year', but asserts that after that time there was no evidence of any quarreling. Defendant was the owner and operator of the Gordon Court apartments at 1626 S.W. Montgomery street, Portland, Oregon.

Maralyn K. Billie, prior to July 1, 1953, lived at the Gordon Court apartments, immediately over the apartment of the defendant and his wife Goldie. At about the end of February, 1953, the witness Billie heard and recognized the voices of defendant and Goldie. She heard sounds of a scuffle and heard Goldie screaming, 'then she yelled, 'Don't hit me again." The witness added that she also heard 'frequent quarreling.'

Witness Mrs. Minnie McFarland had known Goldie since about 1929 in Great Falls, Montana, where they both were teachers. She had known Goldie and the defendant from the time of their marriage until Goldie's death, and saw them frequently. She testified that they got along 'very badly.' 'They quarreled frequently.' Witness testified to a quarrel at her home in early November, 1953. There was no cross-examination. Witness Mrs. L. Bazzel was an old friend of Goldie. She met the defendant soon after the marriage in September, 1952. She saw them often and they had frequent quarrels. One serious quarrel was about a law suit, but the answer was stricken 'for the time.' There was no cross-examination. Miss Elsie Bloom had known Goldie for eight years and was also acquainted with the defendant. She testified that in late February, 1953, Goldie spent the night at the home of the witness. The defendant came to the house in an excited condition and said the witness was 'harboring his wife.'

Another witness, Miss Ethel Johnston, who lived with Miss Bloom, testified that defendant came to the door when Goldie was at the house. He rang the bell and inquired if his wife was there. Miss Bloom said 'yes', and he said, 'I can make it hot for you for harboring my wife.'

The financial condition and activities of the defendant are relevant on the issue of motive and animus. Defendant and his wife had a joint account in the United States National Bank, but it was closed prior to 16 February 1954. On 16 February 1954 defendant had over $1,800 in his individual checking account in the United States National Bank. In the same bank he had a savings account of nearly $900. In the Portland Federal Savings he had over $800. In the Oregon Mutual he had over $1,000. The reasonable value of defendant's apartment house was $115,000. Goldie Sack's estate was valued at $15,900.

The record, as demonstrated by the applications for United States Savings Bonds, shows that Goldie Sack at various times purchased bonds for herself and the defendant as co-owners. The first purchase was on 16 February 1953 for two bonds numbered respectively C202753106E and R10466070E, totaling $225. The application was signed Mrs. Geo. F. Sack. On 8 August 1953 she purchased a bond numbered D30919015E for $375. The application was signed Mrs. Sack and her receipt for the bond was signed Mrs. Sack. On 3 September 1953 she purchased bond D30919219E. The application and the receipt for the bond were signed Mrs. Geo. F. Sack. The bond was for $375. On 16 September 1953 she purchased and acknowledged the receipt of one bond numbered C204212550E, signing Mrs. Geo. F. Sack. The bond was for $75. On 22 September 1953 she purchased one bond, C204212565E. The application was signed Mrs. Geo. F. Sack and the receipt was signed Goldie Sack. The bond was for $75. On 12 October 1953 she purchased one bond numbered D30919086E, signing the application Mrs. Geo. F. Sack. The amount was $375. On 9 February 1954, one week before her death, she purchased one bond numbered C214313877E. The amount was $75. The application was signed Goldie Goodrich. Her maiden name was Goldie Goodrich. She acknowledged receipt of the bond by signing Goldie Sack on the same day. On 16 February 1954, the day of her death, the record shows a purchase of one bond numbered C214131776E. The amount was $75. The application was signed Goldie Sack and the acknowledgment of the receipt of the bond was signed Goldie Goodrich on the same day. It may reasonably be inferred, in the light of other evidence, that the signatures made one week before her death and on the day of her death, indicated a contemplated change of her marital relationship with the defendant.

Five bonds totaling $1,400 made out to defendant and wife were cashed by the defendant on 20 February 1954, four days after Goldie's death. The total amount of bonds cashed by the defendant on 20 February 1954 was $10,476.60. Finally the record shows that on March 2, 1953, Goldie Sack sued her husband for separate maintenance. The prayer of her complaint was as follows:

'Wherefore plaintiff prays for decree of this Court, granting the plaintiff permanent separation from board and bed, awarding the plaintiff the sum of $350 monthly separate maintenance and decreeing the plaintiff the owner of such undivided interest in the real and personal property of the defendant as may be just and proper.'

The foregoing evidence and the inferences which the jury might draw therefrom tended strongly to show motive for murder. The harmony of the home appears to have been impaired by quarrels which were not confined to the privacy of the home. Physical violence by the defendant against his wife is evident. There was a threatened break-up of the family relation by resort to the courts, coupled with a serious possibility that defendant might be subjected to heavy expense and loss of property. There was also apparent a hurried anxiety on the part of the defendant to reduce tangible securities to cash four days after the death of his wife and two days after the finding of her body.

We will next consider whether in connection with the evidence of motive there was sufficient evidence of the commission of the crime by the defendant to warrant its submission to the jury. We have carefully examined the transcript of testimony of 981 pages, plus 66 exhibits.

Defendant and Goldie had breakfast at about 9 a. m. on 16 February 1954 at their apartment in the Gordon Court Apartments at 1626 S.W. Mortgomery street. At about 11 a. m. defendant went to the Safeway store at 10th and Jefferson. They had lunch at about 1:45 p. m. Thereafter Goldie dressed and left the apartment at about 2:15 p. m. She said she was going to walk down town. Goldie was going to buy a bond at the United States National Bank, and did so. She also said she was going shopping for a 'formal'. At the bank she bought a $100 bond for $75. The transaction was handled by Mrs. Hazel F. Johnson, the Savings Bond teller at the bank whose duties were the selling and cashing of bonds. The application is signed before delivery of the bond and is...