State v. Sprague

• Decision Date: 27 April 1943
• Citation: 171 Or. 372,136 P.2d 685
• Parties: STATE v. SPRAGUE
• Court: Oregon Supreme Court

171 Or. 372

136 P.2d 685

STATE v. SPRAGUE

Supreme Court of Oregon.

Argued March 10, 1943.

Affirmed April 27, 1943.

Rehearing denied May 25, 1943.

Homicide

1. In murder prosecution with defense of accidental death, evidence that prior to the attack upon deceased defendant had indulged in intoxicating liquor was competent to show defendant's mental state or intent.

Criminal law

2. In murder prosecution, admission of written statement of defendant pertaining to his activities prior to the attack upon deceased was not prejudicial on ground that it showed that defendant had committed other crimes than the one for which he was indicted, where the offenses related to operation of automobile in which defendant and others rode on leaving scene of the attack and defendant was not owner or driver of the automobile.

Criminal law

3. In prosecution for murder arising out of an assault upon deceased, defendant's statement that, immediately following the assault, he mutilated the license plates on automobile in which defendant and others drove away, was admissible as part of the "res gestae" and to show an effort to avoid detection.

Criminal law

4. In prosecution for murder arising out of a fight between defendant and deceased, statement made by defendant as to his activities immediately prior to the fight and as to the fight itself was not a "confession" but merely an "admission", and rules pertaining to admissibility in evidence of confession did not apply.

                  See 20 Am. Jur. 461
                  22 C.J.S., Criminal Law, § 667
                

Before BAILEY, Chief Justice, and BELT, ROSSMAN, KELLY, LUSK and BRAND, Associate Justices.

Appeal from Circuit Court, Clackamas County.

EARL C. LATOURETTE, Judge.

Ernest Darwin Sprague was convicted of manslaughter, and he appeals.

AFFIRMED. REHEARING DENIED.

George Mowry, of Portland, (John Mowry, of Portland, on the brief) for appellant.

Stanley J. Mitchell, Deputy District Attorney, of Oregon City (Fred A. Miller, District Attorney, of Oregon City, on the brief) for respondent.

BELT, J.

The appellant, Ernest Darwin Sprague, and his co-defendants, Ivan Deloss Sprague, Warren Leroy Mulvaney and Elmer Lee Mulvaney, were indicted for the crime of murder in the first degree — the charging part of the indictment being as follows:

"The said Ernest Darwin Sprague, Ivan Deloss Sprague, Warren Leroy Mulvaney and Elmer Lee Mulvaney, on the 2nd day of May A.D., 1942 in the said County of Clackamas and State of Oregon, then and there being, did then and there unlawfully and feloniously, purposely and of deliberate and premeditated malice, kill one Charles J. Officer by some means and manner to the grand jury unknown and by some means, instruments and weapons to the grand jury unknown, said act of defendants being contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon."

Appellant and his brother were tried together, resulting in an acquittal of Ivan Deloss Sprague and a verdict of manslaughter against the appellant. Upon conviction of the appellant, the charge against the Mulvaney brothers was dismissed.

In view of the assignments of error, a very brief statement of the facts will suffice. There was no motion for a directed verdict of acquittal, nor was any exception taken to the instructions of the court.

About 5 o'clock in the afternoon of May 2, 1942, the Sprague brothers and the Mulvaney brothers — all young men in their early twenties — went to the "Desert Inn", a "beer parlor" on the super-highway between Oregon City and Portland, to drink more beer and to play the pinball and slot machines. While at this place, the Sprague boys — who were in an intoxicated condition — became boisterous and a fight started between them and the deceased, "Bud" Officer, who had the pinball and slot machine concession at the "Desert Inn". Officer was a young man 30 years of age and weighing 180 pounds, but because of being soft and flabby he was no match for either of the Sprague boys.

The evidence introduced by the state showed that although Officer was practically out on his feet, he was pulled out into the street, where the fight continued. Officer was knocked down several times, and, according to appellant, "the last time he hit his head on the black-top pavement and he stayed down." According to some of the witnesses for the State, one of the Mulvaney boys ran and jumped on Officer with both feet while he was down.

As a result of the fall, the decedent's skull was fractured, and he never regained consciousness. There is no evidence tending to show that he was struck by any instrument or weapon as charged in the indictment. The Sprague brothers carried Officer back to the door of the "Desert Inn", and hurriedly drove away in Ivan's automobile at a speed between 50 and 60 miles per hour.

After the Spragues were arrested and while in custody of the law both of them signed statements, received in evidence, reciting in detail their versions of the fight and their drunken carousing for several hours prior to the fight at the "Desert Inn."

The appellant in his written statement thus described the fight at the "Desert Inn":

"* * * we started to play the pinball machines and three of us had a bottle of beer apiece; Ivan and I horsed around a little, he pretended to strike me and I sat down in a booth like had [he] had struck me; I got up then and Ivan had picked up my beer from where I set in on the window sill; some fellow in there with whom we later fought, came around from behind the bar and said, `You fellows go on and get out of here', and grabbed the bottle of beer out of my brother's hand; I made a remark to him that that was my beer and I wanted to drink it; about half of it was spilled; about this time my brother Ivan slipped up and struck him with his fist, I think in the face; he then made a pass at me with the bottle; I ducked and hit him in the face; and the bottle flew out his hand and hit a lamp behind the bar; some fellow sitting at the bar with a woman said, `That will be enough of that, you fellows, get out of here'; my brother back-handed him one in the face; the woman working there tried to get between ...