State v. Walters

• Decision Date: 26 September 1922
• Citation: 209 P. 349,105 Or. 662
• Parties: STATE v. WALTERS. [*]
• Court: Oregon Supreme Court

209 P. 349

105 Or. 662

STATE v. WALTERS. ^[*]

Supreme Court of Oregon

September 26, 1922

Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.

Husted A. Walters was convicted of murder in the first degree, and he appeals. Affirmed.

Husted A. Walters, on November 17, 1920, shot and killed Jerome Palmer, a policeman, at the southeast corner of the intersection of Sixth and Glisan streets in the city of Portland. The defendant was tried upon an indictment charging him with murder in the first degree. The jury returned a verdict of guilty as charged in the indictment, and did not recommend life imprisonment. See Laws 1921, p. 6. The defendant appealed from the consequent judgment.

B. F. Mulkey, of Portland, for appellant.

J. L Hammersly, of Portland (Stanley Myers, Dist. Atty., and Wm H. Hallam, Deputy Dist. Atty., both of Portland, on the brief), for the State.

HARRIS J.

The defendant and John Tillman were soldiers stationed at Camp Lewis. They left camp without leave, arriving in Portland at about 3:10 p. m. on November 17, 1920. Each was in full uniform, each wore a campaign hat, and each had with him an army automatic pistol. After arriving in Portland, they sold one of the pistols. Afterwards, at about 7 p. m., near Nineteenth and Everett streets, they held up and robbed Thomas E. Fanning. They committed a second robbery, when they held up Ole and John Indergard at about 7:30 p. m. on First street, between Stark and Washington streets. At about 9:45 p. m. they held up and robbed a man near the intersection of Ninth and Flanders streets. The Indergard holdup was reported to the police station at 7:40 p. m., the Fanning holdup at about 8 p. m., and the third robbery at about 9:45 p. m. A description of the men who had committed the robberies was given to those in charge of the police station. The detective department and "all the officers on the beats" were notified and given the description of the soldiers who had committed the robberies.

A posse of station men, including Jerome Palmer, was organized at about 10 p. m., and they got in the patrol wagon and went to Ninth and Flanders, and there E. Thorpe, a policeman, joined them, and they then proceeded to Sixteenth and Pettygrove streets, to investigate a place where soldiers sometimes congregated. Finding this place "locked up," Palmer suggested that he and Thorpe board a street car "and go around on the street car." Thorpe and Palmer entered a street car, and the patrol wagon "went back." When the wagon reached a point about a block from the intersection of Sixth and Glisan streets, three shots were heard by officers in the wagon. Broadway, Sixth, and Fifth streets run north and south, parallel with each other and are intersected by Glisan street, which extends east and west. Officers Thorpe and Palmer rode on the front of the street car, keeping a lookout for soldiers. The officers left the street car at the intersection of Broadway and Glisan. After the officers left the car, Palmer looked down Glisan street and saw two soldiers standing at the corner of Glisan and Sixth streets. Broadway is one block west of Sixth street. The two officers at once proceeded east on Glisan street, and after they had gone about one-third of the block the two soldiers started south on Sixth street, and the two officers then ran to Sixth and Glisan.

In the meantime the two soldiers, who proved to be the defendant and John Tillman, had turned around and were walking back north on Sixth street toward Glisan. Upon seeing the soldiers walking back towards Glisan street, the officers timed themselves so as to intercept the soldiers at the southeast corner of the intersection of Glisan and Sixth streets. When the officers met the soldiers at the corner, Thorpe said "Boys, just a minute; I want to see you." Tillman "stopped right there," but Walters "walked right on--stepped off the curb." Palmer gave his attention to Walters, and Thorpe gave his attention to Tillman. Thorpe ordered Tillman to take his hands out of his pockets, and Tillman "had just started to pull his hands out of his pockets when Walters shot Palmer." Thorpe immediately took his "gun off of" Tillman and shot at Walters, and it is probable that this was the shot which wounded Walters in the shoulder.

Walters proceeded about 14 feet after he and Tillman were accosted by Thorpe, and Walters was only 5 or 6 feet from Palmer when he shot Palmer. Walters ran east on Glisan street, and Thorpe "stepped out in the street and took two more shots at him, and he turned around and answered with another shot," which struck Thorpe, but did not seriously hurt him. The defendant ran to Fifth street, and turned north on Fifth, followed by Thorpe and officers who had left the patrol wagon, and by officers on patrol duty in that section. A number of shots were fired at Walters while in flight, and there is evidence that he fired at least two shots at his pursuers. The defendant sought refuge in the railroad yards near by, and was soon captured there. Officers Thorpe and Palmer were in uniform, and each was wearing a policeman's helmet, when the defendant shot Palmer. Sixth street is well lighted, and the defendant knew that Thorpe and Palmer were policemen.

Ole Indergard was permitted, over the objection of the defendant, to tell the jury that he and his brother John had been held up and robbed by the defendant and Tillman. The state called John Tillman as a witness, and he was permitted to testify, over the objection of the defendant, about the three robberies committed by the witness and the defendant prior to the homicide. The defendant insists that there was no connection between the robberies and the homicide, and that therefore it was prejudicial error, under the doctrine of State v. Start, 65 Or. 178, 184, 132 P. 512, 46 L. R. A. (N. S.) 266, to receive this testimony of Ole Indergard and John Tillman. Broadly stated, the general rule, accepted everywhere, is that evidence of crimes other than that charged in the indictment is inadmissible; but this general rule is subject to a few exceptions, which are as firmly established as the general rule itself. State v. O'Donnell, 36 Or. 222, 61 P. 892. The facts appearing in the record bring the instant case clearly within one of the established exceptions.

The state proved by direct testimony that the defendant shot and killed Palmer. Indeed, the defendant, as a witness for himself, admitted that he fired the shot. Palmer was a policeman. Sixth street was well lighted. The killing occurred near a lamp post containing a cluster of lights. Palmer wore the uniform of a policeman, including a helmet. One witness, John M. Reek, when a block away, saw Palmer fall, and "could tell it was an officer." Another witness, C. Barber, was at the intersection crossing of Fourth and Glisan streets, two blocks away from the scene of the homicide, and upon hearing the shot "looked up there," and "saw an officer fall after the first shot," and "could see it was an officer by his cape and helmet." Tillman testified that after the third holdup he told the defendant "that the police was going to get us," and that the defendant "said he did not care; they were not going to take him." Tillman also testified that, when he first saw Palmer and Thorpe, "they were across the street" and were proceeding to the corner of Sixth and Glisan, and that he and the defendant were at that moment going towards the same corner and were about 30 feet from it, and that upon seeing the officers he said to the defendant, "There comes the police now." On direct examination the defendant testified:

"They [Thorpe and Palmer] both came up side by side, and I do not remember just what they said; but I told my partner, before they had come up, I would not--after doing this I would not stand for arrest, but I would take a run for it first."

The defendant, as a witness for himself, also testified on direct examination that he did not know what was his object in shooting and that--

"I did not realize why I did shoot. I was drinking--under the influence of liquor. I was not drunk, but I was under the influence of liquor. I don't really know why I did shoot."

Evidence showing the motive for the commission of a crime is competent; and although, as stated by Mr. Justice Burnett in State v. Humphrey, 63 Or. 540, 550, 128 P. 824, 828 "the prosecution is not bound to prove a motive for the criminal act charged in the indictment," it is permitted to do so. Ordinarily a wide latitude is allowed for proving the motive. State v. Ingram, 23 Or. 434, 31 P. 1049; 16 C.J. 547, 590; 13 R. C. L. 910. The defendant was being tried upon a charge of murder in the first degree, and it was peculiarly appropriate to ascertain why he fired the fatal shot and to learn his intent, for the indictment embraced three...