State v. Weston
Citation | 102 Or. 102,201 P. 1083 |
Parties | STATE v. WESTON. |
Decision Date | 22 November 1921 |
Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Deschutes County; T. E. J. Duffy, Judge.
A. J Weston was convicted of murder, and he appeals. Reversed and remanded.
This is a criminal action prosecuted by the state of Oregon against the defendant, accused by the grand jury of the circuit court in and for Deschutes county, state of Oregon, of the crime of murder. The charging part of the indictment reads as follows:
"The said A. J. Weston, on the 24th day of March, A. D., 1919 in the said county of Deschutes and state of Oregon, then and there being, did then and there purposely, maliciously and feloniously kill and murder one Robert H. Krug * * * by means unknown to the grand jury, contrary to the statutes in such cases made and provided."
This indictment was returned into court on November 8, 1920, about 20 months following the alleged homicide. The case coming on to be heard for the purpose of arraignment, the court informed the defendant that if he had not been indicted under his true name, he must now declare it or be proceeded against in the name under which he was indicted, whereupon defendant answered that A. J. Weston was his true name. After his arraignment the defendant demurred on the following grounds:
This demurrer was overruled. Thereafter, the defendant entered a plea of not guilty, and upon trial was convicted of the crime of murder in the second degree, and sentenced by the court to be punished by imprisonment in the penitentiary during the life of the defendant. From that judgment he appeals to this court, assigning error, among other things, as follows:
In overruling the objection of the defendant to the indictment and permitting the state to offer any evidence under it.
In admitting, over objection, evidence as to defendant's confessions prior to the establishment of the corpus delicti.
In sustaining the objection of the state to the cross-examination of witness George Stilwell.
In permitting witness Wilson on redirect to give explanations as to why he had told certain parties of the alleged confession of the defendant.
In permitting witness W. S. Fullerton, over objection of defendant, to testify concerning a check marked "State's Exhibit," and in receiving in evidence said check.
In permitting witnesses George Stilwell and Joe Wilson to testify to a certain note alleged to have been in the possession of the defendant.
In permitting witnesses H. N. Cobb, Lige Sparks, W. E. T Wilson, Glen Wilson, Charles Gist, George E. Aitken, Ellis Edgington, John Bruns, T. J. Sanders, E. N. Harrington, Bertha Wilson, Carl Wood, and other witnesses to give certain testimony.
In refusing to permit the defendant further to examine John Bruns as a witness.
In refusing to permit witness Nisewonger, the coroner, to testify as to the condition of the body of deceased at the time of the discovery of the remains.
In rejecting certain evidence and restricting cross-examination.
In refusing to strike certain testimony.
In refusing to grant a motion of defendant to instruct the jury to return a verdict of not guilty.
In giving certain instructions, and in refusing certain other instructions.
A witness is presumed to speak the truth but this presumption may be overcome.
Allan R. Joy, of Portland, and N. G. Wallace, of Prineville (E. O. Stadter, of Bend, on the brief), for appellant.
W. P. Myers and H. H. De Armond, both of Bend (R. S. Hamilton, of Bend, on the brief), for the State.
BROWN, J. (after stating the facts as above).
The deceased, Robert H. Krug, met his death on the evening of March 24, 1919. He was a bachelor, 65 years of age, and resided alone in his cabin situate about 5 miles north of the village of Sisters in Deschutes county, Ore. His nearest neighbor was Joe Wilson, who owned, operated, and resided at a sawmill located about three-quarters of a mile southwesterly from Krug's cabin. Living at the mill and employed by Wilson were the defendant and George Stilwell. Wilson and Stilwell were the state's chief witnesses on the trial of this case.
About 7:45 o'clock on the evening of March 24, 1919, flames of fire arose in the vicinity of the Krug cabin. Owing to the season of the year, the fire attracted notice from a number of witnesses residing as far distant as the little town of Sisters. However, no person made any investigation at that time. On that night, Wilson was away from his mill, but the defendant and George Stilwell were there. Between 10 anl 11 o'clock in the forenoon of the following day, defendant telephoned Mrs. H. N. Cobb, in charge of the telephone exchange at Sisters, and said to her that he started from the mill to Krug's cabin that morning after eggs; that when he got in sight of the place he saw a smouldering fire; and that on closer investigation he was positive the body was in the flames. He further stated that:
"I set my bucket down at the gate and came over to the Tones place here to notify the sheriff."
In response to defendant's request, Mrs. Cobb called the sheriff of Deschutes county by telephone, and advised him of the burning of the cabin, and that there was some one burned up in it. The sheriff immediately notified the district attorney and the coroner, and the three went to the scene of the fire. When the sheriff arrived at the Krug place, H. N. Cobb was in charge of the premises, and a number of others, including the defendant, were present. A coroner's jury was impaneled, an inquest held, the body identified as that of Krug, and, so far as the record before us shows, no offense was charged. Before the coroner's jury had left the premises Joe Wilson arrived; George Stilwell already being present.
At the conclusion of the inquest, Wilson, Stilwell, and defendant Weston returned to the mill. A few weeks later George Stilwell left the mill and went to Portland, where he has since resided. Weston continued to work for Wilson from time to time until well along in the autumn of 1919, when Wilson's mill was destroyed by fire. Wilson stated that the burning of the mill ruined his future chances of making whisky where he was working, and that he then got another outfit and went to Crook county, where he manufactured whisky until he was arrested in February, 1920, taken to Portland, and incarcerated in jail.
After the destruction of the mill, Weston resided on his place situate about 3 1/2 miles east of Sisters and about 5 miles south and east of the Wilson sawmill. He was arrested in the latter part of September, 1920, and incarcerated in the county jail at Bend, Deschutes county, charged with the killing of Krug.
The theory of the prosecution was that the defendant, A. J. Weston, Joe Wilson, and George Stilwell were engaged in operating a still in the manufacture of whisky at the sawmill owned by Wilson; that Krug had obtained knowledge of the same; that Weston knew that Krug realized what defendant and his accomplices in crime were doing, and, believing there was danger of Krug's making a complaint to the officers, killed him.
From the time of the death of Krug until about the time of defendant's arrest, Joe Wilson and George Stilwell, the state's leading witnesses, kept their knowledge of the homicide from the officers. If their story is true, the killing of old man Krug constitutes an atrocious homicide.
The defendant challenges the sufficiency of the indictment: First, in that it does not substantially conform to the requirements of chapter 7, title 18 of the Criminal Code; second, that the act or commission charged as a crime is not set forth in concise language; further, that the act charged as a crime is not stated with such a degree of certainty as to enable the defendant to make a defense.
It is a general rule that in an indictment both the Christian name and the surname of the accused should be stated. Joyce on Indictments, § 213; 22 Cyc. 322. The authorities tell us that the common-law rule was that the use of initials instead of the full Christian name of defendant was insufficient, unless the accused had no other name. Our statute provides for the correction of the misnomer upon arraignment. The record in this case shows that upon his arraignment the defendant answered that his true name was A. J. Weston.
The indictment charges that the defendant killed deceased by means to the grand jury unknown. The form of indictment follows form No. 1, p. 1346, Or. L. That form is a part of the Code of this state.
"The manner of stating the act constituting the crime, as set forth in the appendix in this Code, is sufficient, in all cases where the forms there given are applicable. * * *" Section 1439, Or. L.; State v. Dodson, 4 Or. 64; State v. Spencer, 6 Or. 152; State v. Brown, 7 Or. 186; State v. Lee Yan Yan, 10 Or. 365; State v. Farnam, 82 Or. 211, 234, 161 P. 417, Ann. Cas. 1918A, 318.
The indictment contains every allegation set forth in form No. 1 of the appendix. This court has held in a large number of cases that when an indictment contains every allegation mentioned in the form given in the appendix to the Criminal Code for the crime charged it is sufficient under the provisions of the statute. State v. Ah Lee, 18 Or. 540, 23 P. 424; State v. McAllister, 67 Or. 482 136 P. 354; State v. Hosmer, 72 Or. 57, 142 P. 581; State v. Morris, 83 Or. 429, 434, 163 P. 567. However, in...
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