State v. Weston

• Citation: 155 Or. 556,64 P.2d 536
• Parties: STATE v. WESTON et al. [*]
• Decision Date: 26 January 1937
• Court: Supreme Court of Oregon

64 P.2d 536

155 Or. 556

STATE v. WESTON et al. ^[*]

Supreme Court of Oregon

January 26, 1937

Department 1.

Appeal from Circuit Court, Multnomah County; James W. Crawford Judge.

George Leonard Fiedler and August Ferdinand Weston were informed against, and second named defendant was convicted of murder in the second degree by unanimous verdict of a jury, and sentenced to life imprisonment, and he appeals.

Judgment affirmed.

Glenn R. Jack, of Oregon City (Butler & Jack, of Oregon City, on the brief), for appellant.

Joe Price, Deputy Dist. Atty., of Portland (James R. Bain, Dist Atty., of Portland, on the brief), for the State.

ROSSMAN, Justice.

This appeal presents two assignments of error. The bill of exceptions is accompanied with only a partial transcript of the evidence. The following, gleaned from the fractional record, will assist in an understanding of the disposition which we are about to make of the defendant's contentions. The indictment charges this appellant and his coindictee, George Leonard Fiedler, who was tried separately with the crime of murder in the first degree committed by shooting Ernest C. Loll with a shotgun.

The appellant Weston, to whom we shall hereafter refer as the defendant, testified that September 29, 1935, at about 6 a m., he and Fiedler left Portland in Fiedler's car to hunt pheasants. The season for hunting pheasants was not open, and the defendant possessed no hunting license. Shortly their course led them along a highway near Portland known as the Stephenson road. Each carried a shotgun. In the rumble seat of their car was a revolver. As they drove along the Stephenson road, some pheasants were seen, the car was stopped, and the two men walked into the brush in opposite directions. The roadbed was much higher than the adjacent land, and hence after the two had separated they could not see each other. The defendant shot a pheasant and took it into his possession. About this time he observed a car which was approaching upon the road. He now threw his pheasant away and hid himself. When the approaching car got near Fiedler's car, he heard it stop, its door open, and the footsteps of some one walking in gravel. Next he heard a voice near the road declare "The jig's up," and then heard two shots fired closely together. Upon this development the defendant left his place of hiding and walked to the road. There he saw lying on the roadway a man dressed in the uniform of a deputy sheriff and displaying an officer's star. This individual was Ernest C. Loll, the person described in the indictment, and who had been driving the approaching car. The defendant asked Loll whether he could help him, but received no response. The officer, according to the defendant, "seemed to be looking at me," and "there was just a gurgling sound down in his throat," but otherwise there was no sign of life. Blood was about the officer's mouth and shot wounds were visible all over his face. The defendant observed no blood coming through the officer's uniform, but described it as "spotted up." At this moment Fiedler walked over to the officer and kicked his gun away from him. Then, after Fiedler had ordered the defendant to start the car, he ordered him to turn his gun upon the officer and shoot. The latter was still lying prostrate upon the roadway 15 feet or less from where the defendant was seated in the car. The defendant took his shotgun and, without protest, fired it, stating, in explanation of his act, "There was nothing else that I could do. *** I knew that he (Fiedler) would have shot me just as quick as he would the man on the ground." He swore that "what I tried to do was shoot into the dirt this side of the officer so as not to let him (Fiedler) see after the shots had passed over the body that I had missed him." Immediately thereafter Fiedler got into the car in which the defendant was already seated and they drove away, selecting a route which shortly returned them to Fiedler's home in Portland. A moment or two after the men had left the scene of the crime they met a car proceeding in the opposite direction. On their way home Fiedler stopped his car at a lonely spot and the defendant hid their shotguns, their revolver, and the gun which they had taken from the officer. Promptly upon reaching their home the two men altered the appearance of Fiedler's car. They obliterated a bright red stripe around its body, removed the hub caps, bumper, horn, tire cover, and the top. These parts were then hidden. Next, the tires were removed and others were substituted. The defendant assumed the initiative in much of this work. A day or two later the two men assumed false names and, acting upon the defendant's suggestion, went to Moclips, Wash., where they were subsequently arrested. In the meantime, the defendant had decided to surrender himself to the public authorities, but had not done so. All of the above is based upon the testimony of the defendant.

In a preceding paragraph we mentioned the fact that Fiedler's car soon after leaving Loll met a car going in the opposite direction. That car was occupied by one George H. Carl and his wife. Shortly they saw a car on the road ahead and a figure lying in front of it. When they reached this place, they stopped. Mrs. Carl, who was an employee of a Portland hospital, testified that Loll was lying "right on his stomach. The right side of his face was in the gravel. His left side turned up a bit. *** He was breathing very deeply, a sort of rasping noise, and blood was coming from his nose and mouth." She observed shot wounds all over his face and hand. She swore that she experienced no difficulty in detecting the sound of his breathing, declaring that she heard it the moment she stepped out of her car. She testified: "You could hear it before you got to him." Her husband, referring to Loll, testified: "He was breathing very loudly. *** I could stand two or three feet from him and hear him breathing very easily. The blood was coming out of his mouth. He was making a rather gurgling, rasping noise as he breathed." The witness further testified that he put his hand on Loll's shoulder and spoke to him but received no response. After the two had taken in the situation, Carl sought a telephone. Finding one, he telephoned for assistance and returned to Loll. In the meantime, Mrs. Carl had remained with Loll and had sought to help his breathing. While she was assisting Loll, Mrs. Margaret Maakestad, who was driving along the Stephenson road, came upon the scene and stopped. She swore: "I could feel him breathe, just a little bit. *** He had a live color until he changed color all at once to a yellow color, but it seems to me it was about ten minutes, but then I wouldn't be sure." Mrs. Carl testified that the depth of Loll's breathing gradually diminished until at the end of about five minutes she could detect no further respiration and no pulse.

Based upon hypothetical questions, which were predicated upon the information given by the Carls and Mrs. Maakestad, Dr. Frank J. Menne and Dr. Warren C. Hunter, pathologists, who are members of the teaching staff of the University of Oregon Medical School, swore that in their opinions Loll was still alive when the Carls reached him. These two physicians performed an autopsy upon Loll's body. Dr. Menne testified that the cause of Loll's death was "the multiple shotgun wounds of the face, chest and left arm and hand, with bleeding in the chest and the abdominal cavity; the bleeding, the combination of bleeding and shock from these wounds causing death." He swore that two sizes of shot were found in Loll's body-those in his left arm and hand, in the tip of his left shoulder and some in this face being larger than those in other parts of his body. He found approximately 300 shots in the officer's body, about 178 being in the left arm and hand. According to Dr. Menne, the shots broke both of the bones of the left arm and some of the bones of the left hand. He swore that the shots which entered the left arm and face hastened Loll's death, declaring: "I certainly would think that the broken bones in the forearm and the hand and the wounds in the face would contribute to hasten death by virtue of shock and the little loss-or local loss of blood, whatever it might be, in addition to that already occurring in the chest and abdominal cavity." Upon cross-examination he testified that all of the wounds, together with the shock, hastened the death. Dr. Hunter testified that the result of the wounds in the left forearm, left hand, and tip of the left shoulder was the hastening of Loll's death. Upon cross-examination he testified: "I regarded all of the wounds that we saw as being of importance in causing the death of Ernest Loll. I did not except any of those except those that merely entered the skin; all others, those that broke bones in the forearm and the hand, that entered the side of the face, that entered the shoulder, that entered the chest, each, all of them, I felt had a part in producing the death of Ernest Loll."

As we have already indicated, the shot that were recovered from Loll's left hand and arm and those taken from the tip of his left shoulder and some of those taken from the left side of his face were larger than the shot recovered from other parts of his body. Those taken from his arm, hand, and shoulder were of the same size as the shot recovered by Dr. Menne from the pheasant which the defendant had shot. On this appeal the defendant does not contend that the charge which he fired in the direction of Loll did not strike the officer.

One Joseph Beaman, who was an assistant to Dr. Menne, made four plaster casts of those portions of Loll's body wounded by the shots. One of these was a cast of his left forearm and...