State v. Weitzel
| Decision Date | 07 July 1937 |
| Citation | 157 Or. 334,69 P.2d 958 |
| Parties | STATE v. WEITZEL et al. [*] |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Multnomah County; James P. Stapleton Judge.
George Weitzel and John Sauer were convicted of sodomy, Ben Melchor and Conrad Troudt were convicted of assault with intent to commit rape, and the first two defendants appeal.
Affirmed.
Henry S. Westbrook, of Portland, for appellants.
Thomas B. Handley, Deputy Dist. Atty., of Portland (James R. Bain Dist. Atty., of Portland, on the brief), for respondent.
A grand jury jointly indicted Ben Melchor, Conrad Troudt, George Weitzel, and John Sauer of the crime of having, on August 4 1935, attempted to rape a young lady nineteen years of age who, for the purposes of the record, will be known as Miss X. On the same day the grand jury also jointly indicted the above-named defendants with the crime of sodomy in that they "compelled the said 'Miss X' to sustain osculatory relations with the private parts of the said defendants, and each of them." The crime of sodomy was alleged to have been committed at the same time and place as that of the crime of attempted rape. Ben Melchor was tried and convicted of the assault with intent to commit rape. He is now in the penitentiary serving a term of fifteen years' imprisonment. Conrad Troudt entered a plea of guilty to such charge and was sentenced to serve twelve years in the penitentiary. The defendants George Weitzel and John Sauer were tried on the attempted rape charge but were found not guilty. Following such acquittal, the defendants Weitzel and Sauer were tried and convicted of the sodomy charge and each was sentenced to serve twelve years in the penitentiary. From the judgments of conviction, the defendants appeal.
A brief statement of the facts is in order. On the evening of August 4, 1935, four young men-George Weitzel, Ben Melchor, Conrad Troudt, and John Sauer-were driving around, pleasure bent, on the west side of the city of Portland. Miss X was seen loitering about the streets window shopping. Ben Melchor pointed to the girl and said, "Let's make her," whereupon Weitzel stopped the car. Melchor got out and went over to talk to this poor "boy-struck" girl. She was easily persuaded to get into the car with these four boys who took her to a "beer joint." There she was induced to drink nearly three glasses of beer notwithstanding the fact that she had already taken two or three sups of wine en route to the place. If her testimony is to be believed, she had never before drunk intoxicating liquors and it is reasonable to assume that when she left she was in an intoxicated condition, as were the other members of the party.
After leaving the "beer joint" on the east side of the city, at about 11 o'clock in the evening, Weitzel drove his car to an isolated and wooded spot near St. Johns for the purpose, as stated by some of the boys, of having sexual relations with this girl. While going to the scene of the alleged crime, Melchor, who was riding with the girl in the back seat, threatened physical violence to her if she did not comply with his desire. He tore off most of her clothing and otherwise shamefully and brutally mistreated her.
When the car was stopped, Weitzel, Sauer, and Troudt left the girl alone with Melchor in the back seat of the car and it was understood that they were not to return until a prearranged signal by Melchor had been given. While the three boys were away about a hundred feet distant, they heard the screams of the girl and came back towards the car. She was endeavoring to run away, but Melchor caught her and threw her to the ground where, after choking her, he endeavored to have sexual intercourse. While two of the boys held her arms and legs, each took his turn in attempting sexual intercourse with the girl who, it seems, had successfully resisted them.
It was then determined to compel this girl to commit the act of sodomy by the method of osculation. The record discloses that each of the defendants, with the exception of Troudt, committed the detestable crime against nature which is so shocking to decent-thinking people.
When, at about 1 o'clock in the morning, the girl was brought to the home where she was working as housemaid, she could hardly talk above a whisper. Her clothes were torn and her body was bleeding and bruised as a result of this fiendish and outrageous assault. There are many other revolting details connected with the crime, but it is believed the above statement is sufficient to comprehend the assignments of error presented by appellants.
The denial of defendants' motion for a directed verdict of acquittal presents the question as to whether there is any substantial evidence to support the verdict. The testimony of the girl plainly tends to show that the defendants Weitzel and Sauer committed the crime charged in the indictment. Troudt, a codefendant, against whom the indictment had been dismissed at time of trial, testified on behalf of the state that he saw Weitzel and Sauer commit the act of sodomy as alleged. He also testified that he saw Weitzel and Sauer hold the girl while others were attempting to ravish her. The defendant Weitzel, after his arrest and while in jail, made what purports to be a confession of an attempt to rape this girl at the time and place in question. It is true that Weitzel made no reference in such signed statement to the commission of sodomy by himself. Sauer, while in jail, made what purports to be a confession that he is guilty of the crime charged in the indictment. Mrs. Ernest C. Williams testified to the terrible condition of the girl when she returned to her home at about 1 o'clock in the morning. There are many other facts and circumstances showing beyond question that the guilt of the defendants was a matter for the determination of the jury. No error was committed in denying the motion for a directed verdict.
It is urged that there is no crime of "compelled sodomy." It is agreed that compulsion or force is not an element of the crime of sodomy as defined by the statute (section 14-734, Oregon Code 1930). The allegation of force as set forth in the indictment might well have been omitted, but it may be rejected as surplusage. Certainly the rights of the defendants were not prejudiced by the allegation that they "compelled the said 'Miss X' to sustain osculatory relations" with them. The court required the state to show, in accordance with such allegations, that the girl was compelled to commit the act charged in the indictment. If any error was thus committed, it was in favor of the defendants. The indictment charged facts sufficient to constitute the crime of sodomy.
Appellants rely upon a plea of former jeopardy by reason of the fact that they were acquitted of the charge of attempted rape. Sodomy and attempted rape are separate and distinct crimes. Neither crime is an element of the other. Evidence sufficient to establish guilt of sodomy would not necessarily show guilt of attempted rape and vice versa. The test of former jeopardy is, as stated in the early and well-considered case of State v. Stewart, 11 Or. 52, 238, 4 P. 128, quoting from Morey v. Commonwealth, 108 Mass. 433, 434, In the instant case the state was entitled to show all the facts and circumstances, notwithstanding it disclosed the commission of two crimes. Defendants have not been put twice in jeopardy for the same offense. State v. Nodine, 121 Or. 567, 256 P. 387; State v. Newlin, 92 Or. 597, 182 P. 135; State v. Magone, 33 Or. 570, 56 P. 648; State v. Howe, 27 Or. 138, 44 P. 672; 8 R.C.L. 143; 16 C.J. 263.
Error is predicated upon the refusal of the court to require the state to elect whether or not it would prosecute the case on the theory that the defendants were guilty as principals or as aiders and abettors in the commission of the crime charged. The indictment charged but one offense. There was no occasion to make an election. Even though the defendants may have aided and abetted each other, they were, in accordance with the plain mandate of the statute, to be "indicted tried, and punished as principals." Section 13-724, Oregon Code 1930. Furthermore, it was stated by counsel for the state that the defendants were being tried on the theory that they were principals. A case in point and adverse to the contention of appellants, is State v. MacLaren, 115...
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...from prosecution and punishment under the other.' (Gray, J., in Morey v. Commonwealth, 108 Mass. 434)" See also State v. Weitzel, 157 Or. 334, 340, 69 P.2d 958 (1937), State v. McDonald, 231 Or. 48, 52-53, 365 P.2d 494 (1962), and Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2......
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