State v. Turnbow

• Decision Date: 23 November 1920
• Citation: 99 Or. 270,193 P. 485
• Parties: STATE v. TURNBOW.
• Court: Oregon Supreme Court

193 P. 485

99 Or. 270

STATE v. TURNBOW.

Supreme Court of Oregon

November 23, 1920

In Banc.

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

Frank Turnbow was convicted of assault with intent to rob, and appeals. Affirmed.

The defendant, Frank Turnbow, and Kathryn Moss were jointly indicted by the grand jury of the state of Oregon in and for Union county, charged with the crime of assault with intent to rob one John L. Neeley. Thereafter Turnbow and Moss were placed on trial, but soon after the commencement thereof Kathryn Moss, codefendant of Frank Turnbow, was dismissed upon the motion of the prosecution, to become a witness on behalf of the state. Both the prosecuting witness, John L Neeley, and the accomplice, Moss, gave testimony. A number of other witnesses were offered on the part of the state who testified to circumstances of more or less weight. The appellant assigns as error:

(1) That the court below erred in denying, over defendant's exception, the motion for an order directing a verdict of acquittal, made at the close of the evidence of the state.

(2) That the court erred in refusing, over defendant's exception, at the close of the testimony, to instruct the jury to return a verdict of not guilty.

(3) That the court erred, over defendant's exception, in refusing defendant's request No. 11, and in modifying the same and giving the same as modified, as instruction No. 14 for the reason that the same is an invasion of the province of the jury, assumes disputed facts, and instructs upon the weight of the testimony.

(4) That the court erred, over defendant's exception, in refusing defendant's request No. 13, and in modifying the same and giving the same as modified, as instruction No. 16 for the reason that the same is an invasion of the province of the jury, assumes disputed facts, and instructs upon the weight of the testimony.

(5) That the court erred, over defendant's exception, in refusing defendant's request No. 12, and in modifying the same and giving the same as modified, as instruction No. 15 for the reason that the same is an invasion of the province of the jury, assumes disputed facts, and instructs upon the weight of the testimony.

Cochran & Eberhard, of La Grande, for appellant.

John S Hodgin, Dist. Atty., of La Grande, for the State.

BROWN, J. (after stating the facts as above).

The only serious question presented by the record is the matter of the sufficiency of the evidence to meet the provision of the Code (section 1540, Oregon Laws), providing that:

"A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime, and the corroboration is not sufficient if it merely show the commission of the crime, or the circumstances of the commission."

The foregoing is a rule of evidence made imperative by statute, and has been applied in many cases, among which are State v. Odell, 8 Or. 32; State v. Roberts, 15 Or. 187, 13 P. 896; State v. Light, 17 Or. 360, 21 P. 132; State v. Jarvis, 18 Or. 365, 23 P. 251; State v. Townsend, 19 Or. 215, 23 P. 968; State v. Scott, 28 Or. 335, 42 P. 1; State v. Carr, 28 Or. 396, 42 P. 215; State v. Kelliher, 49 Or. 77, 88 P. 867; State v. Wong Si Sam, 63 Or. 266, 127 P. 683, 686.

A conviction of Frank Turnbow was had upon the testimony of John L. Neeley, the person alleged to have been robbed, Kathryn Moss, a self-confessed partaker in the crime of assault with intent to rob, together with the testimony given by a number of witnesses who testified to circumstances of some value as evidence in the trial of the cause.

From the testimony of the prosecuting witness, John L. Neeley, it appears that he was a rancher who had been residing for a number of years at Durkee, Baker county, Or.; that shortly before the crime he had sold and delivered at Baker a bunch of cattle and had received therefor a large sum of money. From Baker he came to La Grande and entered into negotiations for the purchase of a pool hall. He renewed a former acquaintanceship with Frank Turnbow, the defendant, as well as with Kathryn Moss, the accomplice. During a period of two weeks preceding the alleged assault with intent to rob, Neeley and Turnbow met nearly every day and night at a pool hall in La Grande. Neeley further testified that Turnbow, learning that he (Neeley) was about to purchase a pool hall, came to him and wanted to get in on the deal, stating to him that he had no money, but would let his wages go on the purchase price. Neeley swore he informed Turnbow that he had money enough on his person to purchase the pool hall and pay for the same once or twice, and opened an envelope, disclosing a sum of money in $20 bills; that within an hour after the display of money to Turnbow the latter invited the former to play a game of poker, which he (Neeley) refused; that on the second night thereafter Turnbow again urged the witness Neeley to play poker, and when the latter appeared reluctant Turnbow insisted that he had a quiet room, a bottle, with a nice bunch of fellows. Neeley further testified that he met Kathryn Moss in the autumn of the preceding year; that he had seen her from time to time during his visit at La Grande, upon the occasion of the attempt to rob him; that on the morning preceding the assault upon him Kathryn Moss requested him to sit down where she was eating breakfast. He testified that--

"There were several commonplace remarks made, * * * and she spoke up and said this was the hardest town for a girl to make a living in she ever saw. * * * She said the police were such s___s o___ b___s a girl could not make a living in town."

He testified that he invited her to his room, but she declined, stating that they were watching her too close, but requested him to meet her that night at a point in the vicinity of the high school building. An appointment was made between them to meet at 10:30 o'clock that night at the high school building. Neeley testified that he left the pool hall at 10:15 o'clock in the evening, walked to the Foley Hotel, got a taxicab, and told the taxi driver that he was afraid there was some trap to it, also told him whom he was going to meet. When Neeley was taken to the vicinity of the high school building, he said he alighted from the taxicab and proceeded on foot to fulfill his appointment. However, instead of meeting the Moss woman in the darkness as he expected, he met a man with a club, who struck him. Neeley testified that he was unable to identify the person who assaulted him. He stated that--

"I could see him just about the instant he struck me, you know--

"Q. Did you see the club? A. Yes; I saw it when he struck me with it. * * *

"Q. Well, tell the jury what you did then. A. Why, I sat there a moment or so, I guess, and I could see him plain, and jumped up and jumped out of the door. There was no one around the building or schoolhouse, but out in front of the schoolhouse there was, I guess, a hundred people passing there. The whole block was pretty well covered with them. * * *

"Q. That was about the time the theater turned out? A. Yes; they had just turned out and were going home."

Neeley failed to identify his assailant, but stated that he is a man about his own height, and in testifying about the blow stated that "he hit me so hard the club fell out of his hands and went to the other side of the alleyway," and that as soon as he jumped up he ran out of the door and outside; that he was bleeding; that he found the taxicab man and went to a doctor and to the sheriff's office.

Kathryn Moss testified that she was acquainted with Turnbow, the defendant, and that he had said to her that "Neeley had a large sum of money on his person, and flashed it around and he would like to get hold of it. * * *" The Moss woman further testified that Turnbow "suggested that I make a date with him (Neeley) and then go to some secluded spot, and he (Turnbow) meet the two of us, and I objected to it that way." She further testified that she told Turnbow, "If Neeley ever butted into me I would make a date with him, and he suggested that he meet him alone and me not go, and I said 'All right."' This last conversation was a day or so before the assault. She further testified that on the morning preceding the night of the assault, while sitting at a table in a restaurant, she made an appointment with Neeley to meet him at the hour of 10:30 o'clock that night at the high school building, that she informed Turnbow of the date she had made with Neeley; and that she and Turnbow discussed the division of what money might be obtained from Neeley, on a fifty-fifty basis. She testified that Turnbow was to see her again at 11:00 o'clock, after his meeting with Neeley; that Turnbow did meet her at the appointed time, as per his agreement, armed with a revolver, and informed her that Neeley had gotten away; that Turnbow gave her the pistol with which he was armed, with instructions to "ditch it," and offered her cartridges, which she refused to take; that she took the pistol, tucked it away in her stocking, and returned to the house, where two young men were visiting; that they observed something unusual and asked her what was in her stocking. She testified that she went to the stairway and removed the pistol, and later "put it outside of the window under the window sill on the roof of the porch," where the officers found it next day. She further testified that after her arrest and incarceration in the city jail Frank Turnbow came to the back of the jail, talked with her through the jail window, and importuned her not to turn state's evidence and become a witness against him, stating that he did not intend to "kill the old...