State v. Silverman

• Decision Date: 02 October 1934
• Parties: STATE v. SILVERMAN.
• Court: Oregon Supreme Court

36 P.2d 342

148 Or. 296

STATE v. SILVERMAN.

Supreme Court of Oregon

October 2, 1934

In Banc.

Appeal from Circuit Court, Columbia County; James W. Crawford Judge.

Jacob Silverman was convicted of manslaughter, and he appeals.

Affirmed.

John P. Hannon, of Portland (Frank J. Lonergan, of Portland, and J. L. Foote, of St. Helens, on the brief), for appellant.

John L Storla, Dist. Atty., of St. Helens, for the State.

BEAN Justice.

The defendant, Jacob Silverman, was indicted by the grand jury of Columbia county, Or., charged with the crime of murder in the first degree, for the killing of one James Walker on April 21, 1933. He was thereafter tried and convicted of the crime of manslaughter, and sentenced to serve three years in the penitentiary and pay a fine of $1,000. Defendant appealed.

On Saturday, April 22, 1933, the bodies of James Walker and Edith McClain were found near a rock bunker on the Otto Miller road in Columbia county, Or. James Walker, an ex-convict, was suspected of shooting Frank Kodat, a speak-easy and rooming house owner, at 711 East Water street Portland, Or. The shooting occurred between 9 and 10 o'clock a. m. Friday, April 21st, at the speak-easy, while Kodat was lying drunk on his bed, the shot being fired through the wall from an adjoining room. Whether the shooting was accidental or intentional has not been established. Defendant, Silverman, was a friend and customer of Kodat. The defendant learned of the shooting about 10 o'clock that morning. He had drunk considerable liquor the previous three or four days, and that afternoon drank some hard liquor and beer and complained generally about his drunken condition. After the shooting of Kodat, one Abe Levine, his bartender, was taken to the Portland police station for questioning, and the defendant and his brother, Maurice Silverman, proceeded to the police station and succeeded in getting Abe Levine's release on the condition that Levine and the defendant would attempt to find James Walker. Levine denies making any attempt to ascertain where Walker was. Levine's release was effected at 4:30 p. m., and, in company with defendant and his brother, he left the jail about five minutes thereafter. Defendant states that he proceeded to the office of Frank Barry, just across the street from the police station. Mrs. Barry testified he may have arrived there 20 minutes before 5 o'clock p. m. Defendant testified that he then visited several places to find James Walker, but without success.

The first assignment of error relates to the ruling of the court in permitting the witness, Maurice Silverman, called by the state, to give testimony, over the objection of defendant, concerning a certain telephone call in regard to the defendant's automobile to the effect that defendant had tire trouble and a request for the witness to come over and get the car and fix it. The objection by defendant is that it was first necessary to show that the telephone call was made by the defendant or at his request, or by some one authorized to act for or in his behalf, citing State v. Day, 22 Or. 160, 29 P. 352; State v. Rader, 94 Or. 432, 186 P. 79; State v. Stone, 111 Or. 227, 226 P. 430; People v. Dixon, 94 Cal. 255, 29 P. 504. However, the identity of the person who originates the telephone call may be established either by direct or circumstantial evidence. Johnston v. Fitzhugh, 91 Or. 247, 250, 254, 178 P. 230; De Lore v. Smith, 67 Or. 304, 307, 132 P. 521, 136 P. 13, 49 L. R. A. (N. S.) 555; 71 A. L. R. 7, 30, et seq.; annotation L. R. A. 1918D, 723; Jones on Evidence (2d Ed.) 1478, 1479. The meat of the rule as to the admissibility of evidence of a telephone conversation has been well stated, as shown in annotation 71 A. L. R. 7, quoting from 1 R. C. L. 477, as follows:

"Communications through the medium of the telephone may be shown in the same manner, and with like effect, as conversations had between individuals face to face. But the identity of the party against whom the conversation is sought to be admitted must be established by some testimony, either direct or circumstantial. *** Slight circumstances will suffice for this purpose, however; and in case of conversations about business affairs, the rule seems to authorize the admission of the evidence without preliminary proof directed at identification of the voice."

The testimony on the part of the state tended to show that on Saturday, April 22d, the defendant and his car were found at Frank Kodat's place on Water street. Police officers requested him and two others to accompany them to the police station for questioning. Before leaving Kodat's place, at about 11 o'clock a. m., the defendant locked his car, taking the keys with him, which he later surrendered at the station. At about 2:45 p. m., the deputy district attorney commenced questioning the defendant. He was asked: "Who did you send over after your car awhile ago?" He answered: "My brother," and later qualified it by stating that he just asked him to go over and see if his car was still there. The request was made by telephone. It is indicated that the defendant had a telephone conversation with his brother regarding his car and that he sent his brother after the car. At that time he had the car keys in his possession. Defendant's brother, Maurice Silverman, testified that he received one telephone call regarding his brother's car, that "A call came over and asked if this was Silverman. I said, 'Yes.' He said, 'Your brother has some tire trouble over here on Water street come over here and get the car and fix it up."' It is apparent that the car belonged to the defendant or was in his custody and control, it being registered in the name of his wife, and the circumstances indicate that the directions to his brother were made by or for the defendant. The circumstance is of but little consequence, however, and we think there was no error in admitting the testimony. In Johnston v. Fitzhugh, supra, at page 253 of 91 Or., 178 P. 230, 232, it was said by Mr. Justice Burnett:

"The objection to statements made over a telephone to an unseen party goes not so much to their competency as to their weight, and in most of the precedents on the subject this idea is given prominence. Whether the conversation and participants are identified must, in the nature of things, depend upon circumstances of each case, where there is no direct statement that the voice of the individual at the other end of the line was recognized. But the principle is that the identification of the parties and the conversation may be proved, not only by direct, but also by circumstantial evidence." See, also, St. Paul Fire & Marine Ins. Co. v. McQuaid, 114 Miss. 430, 75 So. 255.

At the close of the introduction of all the testimony, defendant moved the court for a directed verdict of not guilty, and the refusal thereof is assigned as error. It is contended by defendant that there was no competent evidence connecting the defendant with the crime charged in the indictment. Therefore it becomes necessary to examine the evidence somewhat in detail.

The evidence on behalf of the state tended to show that James Walker and Edith McClain registered as man and wife at the Norris Hotel, 17th and Washington streets, and were there on the afternoon of April 21, 1933. Edith McClain had been living with Frank Kodat but left him on April 21st. Daniel Young, proprietor of the Norris Hotel, testified that shortly before supper on April 21st, he saw Walker and Edith McClain together with three men get into a large car that looked like the Silverman car, and drive away from the 17th street entrance of the hotel, and that the driver of the car resembled the defendant as to size and shape. It was shown that the Young family had supper that evening about 5:15 o'clock p. m.

Arthur Brown, who had known the defendant for over two years, was standing across the street from the 17th street entrance of the Norris Hotel at about 5 o'clock that Friday afternoon and saw the defendant and a small woman and three men get into a car that resembled the picture of defendant's car the defendant occupying the driver's seat. The time was fixed as between 5 and 5:15 o'clock p. m., according to the testimony of W. B. Torrence, who came upon the ground at that time, and he observed the car driving away. Torrence noticed that the car was full and that it was a maroon-colored Studebaker. It is shown that Edith McClain was a small woman. On Friday evening, April 21st, seven witnesses, situated on Dutch Canyon and Otto Miller roads, in Columbia county, saw a car that answered the description of defendant's car proceeding in...