State v. Weston

• Decision Date: 09 October 1923
• Citation: 219 P. 180,109 Or. 19
• Parties: STATE v. WESTON.
• Court: Oregon Supreme Court

219 P. 180

109 Or. 19

STATE v. WESTON.

Supreme Court of Oregon

October 9, 1923

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.

See State v. Weston, 102 Or. 102, 201 P. 1083.

E. F. Bernard, of Portland (Collier, Collier &amp Bernard, of Portland, and E. O. Stadter, of Bend, on the brief), for appellant.

H. H De Armond and R. S. Hamilton, both of Bend (W. P. Myers, of Bend, on the brief), for the State.

BROWN J.

Four places are frequently referred to in the testimony: The small town of Sisters, located in the northwestern part of Deschutes county, Joe Wilson's sawmill, the Ben Tone place, and the cabin in which Robert H. Krug, an aged bachelor, the victim of the alleged homicide, dwelt. The Wilson sawmill is situate about 5 1/2 miles northwest of Sisters. Wilson and Stilwell, leading witnesses for the state, and the defendant, were all living at the mill at the time of the homicide, but it is claimed that Wilson was at Bend on that night. The site of the Krug cabin is about three-fourths of a mile from the sawmill, on the opposite side of a slough. The Ben Tone place is located about one mile northwest of the site of the Krug cabin and is the place from which defendant telephoned to central station, giving the first information of the fire. Ben Tone's house, the site of the Krug cabin, and the Wilson sawmill are triangularly situate.

Prior to the occasion of the averred crime, the last person to see Krug alive was the defendant. Weston was at the Krug cabin either Saturday or Sunday night preceding Monday, March 24, 1919, the night of the fire.

The atmosphere at Sisters and vicinity on that Monday was quite clear. In the early nighttime of that day, a number of persons saw unmistakable evidence of a fire in the vicinity of the Krug cabin. On the following forenoon, the defendant telephoned Mrs. Nettie Cobb, the operator at central station, that the Krug cabin had been burned. He suggested foul play, and requested that the officers be notified. Upon the arrival of the officials, a coroner's inquest was held, the defendant serving as one of the jurors, but the record does not disclose that he gave any testimony. The chief witness in this case, George Stilwell, was present, but did not testify, neither was Joe Wilson, who arrived before the conclusion of the inquest, examined as a witness. The record does not disclose the finding of that coroner's jury, except that it is suggested that it found that Krug was dead.

For more than a year and a half, the two leading witnesses in this case, and the defendant as well, maintained a rigid silence concerning all their knowledge, if any, of the criminal act that took the life of Krug. About 20 months after the death of Krug, George Stilwell was in the employ of the Knight Packing Company, of Portland, Or. About that time, Joe Wilson was released from the county jail, where he had been serving a sentence of the federal court for the illicit manufacture of intoxicating liquor. He called upon Stilwell, and advised him that their lives were in peril on account of their knowledge of the defendant's crime in slaying Krug, and that for mutual safety they should testify to the defendant's guilt. Upon his return to Deschutes county, Wilson was called into the office of the sheriff of that county and disclosed to that official what he claimed to be the facts regarding the death of Krug. Thereupon a complaint was sworn to and a warrant issued for the arrest of Weston, who was found at his ranch a few miles distant from Sisters. The warrant served, a preliminary examination was given him, whereupon he was held to answer. He was afterwards indicted by the grand jury of Deschutes county, and, upon trial, convicted of murder in the second degree.

Upon his first trial, the defendant was convicted on the theory that he slew Robert H. Krug, burned his cabin, and confessed his crime to Joe Wilson and George Stilwell, the state's principal witnesses in the former, as in the second, trial of this cause. The alleged confession was corroborated by such other independent testimony, if believed by the jury, as tended to connect the defendant with the commission of the crime. Upon appeal it was urged that the evidence adduced at the former trial was insufficient to prove the corpus delicti. We held that the trial court did not commit error in overruling defendant's motion for a directed verdict of not guilty, for the reason that, "by the evidence adduced upon the trial, the state made out such a case that the duty of submitting it to the jury was imposed upon the court;" that the credibility of the witnesses, the weight, effect, and value of their testimony was exclusively for the determination of the jury; and that "the testimony admitted at the trial, if believed by the triers of fact, authorized them to return a verdict of guilty." But the case was reversed on other grounds.

Much of the alleged error in this trial involves the accomplicity of George Stilwell, one of the chief witnesses for the prosecution, in the commission of the alleged crime of murder. According to the testimony herein adduced, Stilwell and Wilson suppressed material evidence at the first trial. At the second trial, Stilwell testified that he was present with the defendant at the cabin of Robert H. Krug at about the hour of 7:30 or 8 o'clock p. m. on the 24th day of March, 1919, when the defendant assaulted, robbed, and slew the deceased; that at the first trial he suppressed the testimony of his presence there through fear that he would become implicated in the homicide. He further testified that at the time of the first trial Joe Wilson knew of his presence at the Krug cabin when the crime upon the body of Robert H. Krug was committed. The other leading witness, Joe Wilson, at the former trial, refrained from testifying to any matter that would indicate that Stilwell was present at the cabin at the time of the alleged killing of Krug. Upon the second trial Wilson, in testifying to Weston's confession, swore upon the witness stand, among other things, that at the mill, in the presence of Stilwell, the defendant said:

"He (Weston) said he and Stilwell went over there this night, the 24th. * * * He said they went in the house and the old man (Krug), I think, was eating supper, and the old man came in at the door from eating supper and he (Weston) hit him with a stick. * * * Weston told him, 'You caught us moonshining and went down town to Sisters and told it all around. We have got to leave the country and have to have $500. * * *'

"Q. When did you first know Stilwell was connected with this murder? A. Weston told me on the 25th. * * * He said Stilwell was with him.

"Q. That was the night following the inquest, was it not? A. Yes. * * *

"Q. On that night when you got home, Weston then told you of Stilwell's connection with the murder? A. Yes, sir. * * *

"Q. Did he at that time tell you of Stilwell's connection with this murder? A. He told me Stilwell was over there with him."

Wilson gave the following reason for suppressing all knowledge concerning the presence of Stilwell at the scene of the commission of the crime when testifying as a witness at the former trial:

"Q. Why, if it is true, why, Mr. Wilson, when you testified under oath at the former trial, didn't you tell that fact, if it is a fact? A. You want to know why?

"Q. I have asked you. A. You want my reason?

"Q. Why didn't you tell Stilwell's connection with it? A. Well, sir, I will tell you. I figured just like this, no matter what part Stilwell might have taken over there, that he was in no way responsible for it. He had been drinking there for eight or ten days, all the time, day and night. He was a weak-minded man, weak-bodied, and I just figured, knowing the two men like I did, Stilwell wasn't in any way responsible for anything that might have happened."

Another reason assigned by Wilson was that he was afraid of Weston in the event that the defendant was not convicted. He further stated:

"I was making whisky myself, and I could not tell it very well without exposing the business I was in, or had been in."

Weston said, as a witness, that he was of the age of about 54 years; that he was acquainted with George Stilwell; that at the time of the homicide he was the owner of a small ranch located a few miles distant. Relating to his business at the mill, he testified:

"There was a bunch of us farmers hired Joe Wilson and his mill, paid him a certain amount per thousand, and we furnished our own help and we cut the timber from the reserve and placed it in the mill and sawed out our piles of lumber, I think about 10 of us." While at the mill he saw Robert H. Krug a number of times, and that he last saw Krug, according to his recollection, on the Saturday or Sunday evening before the fire, which occurred on Monday night.

"Q. Well, during the few days prior to this fire, did you have any knowledge of any kind or character that it was claimed by anybody that Robert H. Krug had been over to the sawmill and caught George Stilwell washing out some tubs or vessels pertaining to moonshining operations? A. Not to my knowledge. "Q. Did George Stilwell ever tell you of any such thing? A. No, sir; he didn't.

"Q. Did you ever see Robert H. Krug catch him in any operation of that kind? A. No, sir, I didn't. * * *

"Q. To the best of your recollection, what did you do on Saturday prior to the fire? A. Well, if my memory calls me right, I went to Sisters after groceries. * * *"

He testified that upon his return to the sawmill at about 5 o'clock in the evening, Stilwell and Krug were there that Krug remained there and took supper at the mill; that Stilwell...