State v. Sullivan

• Decision Date: 07 June 1932
• Citation: 139 Or. 640,11 P.2d 1054
• Parties: STATE v. SULLIVAN.
• Court: Oregon Supreme Court

11 P.2d 1054

139 Or. 640

STATE v. SULLIVAN.

Supreme Court of Oregon

June 7, 1932

In Bank.

Appeal from Circuit Court, Union County; J. W. Knowles, Judge.

Willard Sylvester Sullivan was convicted of murder in the second degree, and he appeals.

Affirmed.

R. J Kitchen, of La Grande, for appellant.

Carl G Helm, Dist. Atty., of La Grande, for the State.

BROWN, J.

The defendant has appealed from a judgment convicting him of the crime of murder in the second degree. The principal facts in the cause surrounding the alleged slaying and death of the victim are substantially as follows:

Homer Bidwell was a farmer who resided upon, and cultivated, his lands situate near North Powder in Union county, Or. About 5:30 o'clock on the evening of June 27, 1931, the horses that he had used that day in plowing his field were found standing at the gate of the Bidwell home with tugs and lines dragging. Mrs. Bidwell, thinking that her husband had sustained an accidental injury, took the family car and set out to find him. Following the sagebrush-bordered road which led to the field, she found her husband lying in one of the tracks of the road at a point about 300 yards from the house and with his face upturned. In the belief that the horses had run away and injured him, she removed the blood from his nose and mouth and immediately had him taken to Hot Lake Sanitorium fifteen miles away, where he was pronounced dead. In the preparation of the body for burial, a slight abrasion was observed under the left eye. X-ray pictures were taken and a bullet located in the head. A post mortem examination revealed that the bullet, a 25-caliber, had passed through his left eye, followed a backward course, and lodged in the back of his head on the right side. The question then arose Who killed Homer Bidwell?

The testimony in the case shows that in July, 1930, defendant Sullivan and his wife started on an automobile journey from Portland, Or., to their former home in Missouri, with the idea of doing a little work along the way. When they reached the Bidwell ranch near North Powder, Homer Bidwell hired Sullivan, who was traveling under the name of Sylvester Marler, to help him in putting up his hay crop, and Sullivan's wife agreed to help Mrs. Bidwell with the cooking and dish washing in payment for her board and room. Mrs. Bidwell testified that Sullivan and his wife arrived at their home about ; July 4, 1930, and remained until August 16th following, when Sullivan decided to proceed on his way East. Mrs. Sullivan desired to remain in Oregon. Argument ensued, and, concerning this difficulty, Mrs. Bidwell testified: "He (Sullivan) came to the house and told her (his wife) to get ready; that they were going to Missouri. *** She says: 'I don't want to go to Missouri, and I am not going there.' And he says: 'Yes, you are going, or I'll kill you and take you like a stuck hog.' She says: 'Well, I don't want to go.' And he says, 'Well, you are going.' And he went out there to get the car ready, and she came to me-***."

She testified that defendant's wife told her that she lived in fear of her husband, and that it was her intention to leave him. That afternoon Mr. and Mrs. Bidwell drove to Baker, as did Sullivan and his wife. When the Sullivans reached Baker, Mrs. Sullivan alighted from the automobile and went into a store, leaving her husband sitting in the automobile. After waiting in vain for her return, he entered upon a vigilant hunt, without success. He then returned to the Bidwell ranch and asked Mrs. Bidwell where his wife was, and she answered that she did not know. He next drove to the home of his wife's uncle in Portland, to ascertain whether she had gone there. Failing to learn anything from the uncle, he again returned to the Bidwell home, accosted Mr. Bidwell, and asked him where his wife's clothing was, and he answered that he did not know. Mrs. Bidwell's testimony continues: "'Well,' he says, 'I got her clothes that was in the bureau drawer.' *** Homer says: *** 'You get out of here.' He says, 'Well,' *** and he (defendant) wanted to know, he says, 'Did you ever hear her say where she was going?' Homer says: 'I heard her say something that she was liable to go to her father up in Canada.' 'Well,' he says, 'I will kill her and her father both.' *** He came back other times. *** He was angry, and wanted Homer to call me out of bed ***. He (defendant) was swearing, and swore at both of us." She testified that defendant came to their home early on the Monday morning after his wife disappeared, that: "We were just getting up. *** It was just daylight Monday morning,-must have been between four and five o'clock, and he was trying at the door to get in, and Homer ran out, and he began to cry and take on terribly about his wife, and said he wanted her. *** He claimed he had been to Portland and back, and that he had gone down there thinking that she was at her uncle's, and he had come back and was there at five o'clock. And I was getting breakfast, and he came up beside me when I was standing at the stove, and he says: 'I am hurt. I am hurt. I am hurt. *** I know I am to blame for everything. *** I had no business to treat her the way I did.' *** He says: 'Will you tell me where she is? I says, 'No, I don't know where she is, and I wouldn't tell you if I knew.' That is what made him so mad." She testified that he came at still other times. She further testified that some unknown person was watching around their home after night on four or five different occasions; that they heard some one around the place several times, but could never find anybody; that, during this time, it was the usual custom of her husband and herself for one of them always to remain at home to watch the premises, but that, contrary to custom, on Saturday, August 30, 1930, both her husband and herself went to Baker and left the place alone, and, upon returning home found that the shells had been removed from their shotgun and other shotgun shells had likewise been taken; and that a $25 suitcase, a telescope, and a blanket were also missing from their home.

Walter Manning testified that he had worked at the Bidwell ranch for three years. He testified that he heard a conversation between the defendant and Homer Bidwell on the night of August 16, 1930, in which the defendant asked Mr. Bidwell where he supposed his wife was; that Mr. Bidwell told him "he thought maybe she might have went to Canada to her folks; *** and then I heard him (defendant) say he was going to go and kill somebody. *** I didn't get the name distinctly." Referring to a conversation between himself and the defendant, Manning testified that the defendant "said he had written back East to his aunt for money; that he was going back there; and he says: 'Next year I will come back and get even.' He says: 'They have the best of it now, but I will have the best of it after I get back."'

We have hereinbefore made reference to some property that had been taken from the Bidwell home. Manning testified to the following additional circumstance which tends to show motive or desire on the part of the defendant to injure the deceased: "I was working out in the field,-oh, about a hundred yards from the house, and I saw somebody walking to the house, *** and I saw it was Mr. Marler (defendant). I didn't see him go in the house. I didn't pay much attention to it. I didn't know Bidwells had left, but they had previously said they were going ***. We were hauling bundles ***. In about twenty or thirty minutes we saw him (defendant) leave,-leave the house,-I guess in about twenty or thirty minutes, from fifteen to twenty, we saw smoke coming out of the house. *** Before we saw the smoke we could smell rags burning, and then afterwards we saw smoke coming out of the door of the house, and we ran up there as fast as we could, and I went in, and when I first went in I turned the hydrant and got a bucket of water, and I ran back, and I found my bed on fire, and the fire blazing up the wall. I threw the water on the blaze, and rolled up the bed the best I could and pulled it outside, and finished putting the fire out." This fire occurred two weeks after Sullivan and his wife left the Bidwell ranch.

J. E. Schofield, an unfriendly neighbor of the Bidwells, testified that the defendant had told him he thought the Bidwells knew where defendant's wife was and would not tell him. This witness testified that on one particular occasion he had a conversation with the defendant concerning Mr. Bidwell, which he related as follows:

"He said he stopped there and saw Bidwell out in the field, and he went over and was talking to him, and he said the old son of a B was scared to death. He said: 'I told him that I would get him,' something to that effect. I think that is the words he used. He said: 'I told him I would get him.'

"Q. And that he appeared to be scared to death? A. Yes."

What we believe to refer to the same circumstance is thus related bye Mrs. Bidwell: "I was in the house, and Homer had been across the creek about a hundred yards from the house *** raking, and all at once I noticed him coming to the barn with the horses on the trot with the rake, and he came up and tied the team just below the barn to the fence, and he came running to the house, and he was as white as a sheet. When he came in he says, 'Sylvester'-He was frightened. He was as white as a sheet."

Isaac R. Neuner testified that, between 3 and 4 o'clock in the afternoon of August 30, 1930, while he and Walter Manning were at work stacking grain for Homer Bidwell at a point about 150 yards south of the Bidwell house, he saw some person go to the Bidwell house, and a little later he "saw a man walking toward the creek, toward the hog pen almost due west from the...