*1 595 expunge Respondent’s part, motion to allowed in November rehearing appellant’s petition allowed December argued 19, 1956, 6, 1957 December affirmed March STATE OF OREGON v. REYES
Mix Fenner, Corvallis, & contra.
LUSK, J.
The ease is before the court on several motions of respondent, Oregon, State of to strike from the transcript testimony, transcripts record the of cer- tain and of a motion for a affidavits, new and two trial, envelopes containing exhibits. The motions are based grounds: on First, two that the documents and exhibits part referred have not been made of the bill of exceptions, appellant (defend- and, second, below) comply ant in the court failed to with rule requiring proposed the circuit court service of a bill exceptions opposing party. on the August filed in 22, 1956, On there was this court a Exceptions.” document Bill entitled “Defendant’s day *3 On the same there were filed here two volumes of testimony by reporter. authenticated official On exceptions stamped of the bill of is cover the re- county County ceipt reading: of the clerk of Benton day August, Ralph “Received the 7th of 1956. P. County by Wrigglesworth, Clerk Huida Schindler, exceptions Deputy bill of Clerk.” The consists of a exceptions by of 22 taken statement the defendant to prior rulings trial, of some to most of them court, single upon trial. It contains a reference to the testimony. Exception transcript relating No. to 8, of appellant’s objections, testimony received over the re- testimony “This and evidence is too extensive cites: through- detail, forth here in but is contained to be set testimony.” transcript The certificate of of out ‘‘ foregoing Exceptions judge Bill of is reads: McHenry, Judge.” The date of Fred allow- allowed. exceptions appear. Attached to the bill of not ance does proof by mailing foregoing a of service of is “the Bill Exceptions” attorney of on the district for Benton County August on 1956. 7, August there also in 22,1956,
On filed this court Transcript,” along a document entitled which, “Short required by with the matters ORS 137.190and 138.180, copies support contains of number of affidavits of change support a motion for of an affidavit in venue, of inspection transcript aof motion for of a of a state- by appellant, made to ment officers affida- two support particulars of a vits in motion for a bill of filed by appellant, and of a motion for a new trial. In body exceptions it recited bill that the is ‘‘ transcript referred are in the affidavits set forth filed There a similar herewith.” is recital as to the motion for a trial. new envelopes
There also came this court the two exception referred to. exhibits above With the DD State’s Exhibit no mention of the exhibits is found exceptions. Exception in the bill 17 sets forth the ob- jection reception evidence of this exhibit made appellant. on the trial counsel for appellate procedure It is a basic of our rule only through exceptions that it medium of bill of brought in a action that evidence law can be into the Tellkamp record consideration this court. v. McIlvaine, 481, 199 P2d 474, 246; Or Pulver, 159 Or 79 P2d there cases applies support This rule as well affidavits .cited. change trial, of motions for new continu venue, *4 Harper like. v. ance, Wilson, 185 Or 200 23, 26, 600; Garner, P2d v. 166 108 P2d 1, 5, 274; State Or 22 Grace, v. De 144 P2d 90 159, 165, 896, State Or ALR v. 70 141 P McPherson, 371, 373, Or 232;
599
54
P
1018;
Finch,
487,
State v.
Or
482,
505; State
v. Kline, 50 Or
In this case the circuit has his certif not part exceptions icate identified or made the bill of constituting transcript either the two volumes testimony possible exception or the exhibits, with of State’s Exhibit DD. Under well-settled rules these part open matters are not and are not for record this court’s consideration. experience
This the first our time in and ob attempt incorporate servation that an has been made exceptions by including copies in the affidavits bill transcript referring them the short to them exceptions bill the manner above stated. The exceptions affidavits should be set forth in the bill of says: excepted rulings itself. The “The to shall statute matter, be as much or other as is stated, evidence, with necessary explain no more.” ORS 19.100 them, but including (2). authority There is no affidavits such transcript, in the short are here concerned with we may interpretation though a liberal it governing exceptions could bills of we hold that statute procedure accomplish is effective to this unorthodox purpose of counsel and to have been what seems *5 presently it for to be But, stated, the court. reasons question. unnecessary to decide that is suggested appellant have to Counsel sending propriety to the the case back court judge’s circuit cer for correction of the court circuit power this court’s to no doubt of tificate. There is judge power of the circuit or of the course, take that proper amend the certificate so that to in a case exceptions to facts. ex conform the will bill of 296 P and cases 439, 443, Ekwall, 135 Or rel. v. In Brokers Co. Southern cited. United there Pacific appears to 169 P this court Co., 607, 616, 86 Or an amendment of the certificate to have itself allowed opinion exceptions. in the case means If the the bill erroneously says, an court exercised it then this what exclusively judge authority of the to a circuit reserved (3), (4). 19.100 court. ORS suggested procedure appel avail the would judge nothing, trial however, unless the were able lant exceptions, a which included bill find question, presenting it tendered here matters days court within after clerk of the circuit to the judgment entry an of that or within extension of the require granted, properly in accordance with the time exceptions a and that such bill 19.100, ments of ORS through actually but that inadvertence allowed, conform failed to to the facts. the certificate mistake pointing showing made in court to the been this No has a of such facts. state existence being are, as we to make reluctant, Nevertheless, depriving ruling have the effect of would which degree party convicted of second murder has been who rights may in connection substantial with be of what sug- disposed adopt appeal, be should we his G01 gested procedure for what have con- it not we were insuperable deliberation, mature be an after cluded, way appellant. Rule 30 of the in the of the obstacle Twenty-First District, Judicial of the Circuit Court provides: County part, Benton exceptions proposed copy bill of shall “A attorney party or on the Ms served adverse presented Court, the Clerk of the who thereafter presentation date of its thereon the shall endorse *6 attorney the shall thereafter deliver him, and the judge.” trial same to the copy “proposed a of of
As heretofore bill stated, ’’ attorney exceptions was served mail on the district August excep- on 1956. 7, TMs is the identical of bill August tions was tMs 22, which filed with court on appears 1956. It further from an affidavit of the of- reporter April ficial that a 30, on he delivered 1956, copy transcript testimony of the of attor- the district any ney. showmg But there is no affidavits, of the copies transcript, of are which included the short attorney, “pro- ever served on were the district and no posed exceptions,” transcript bill of of of which the testimony, or the affidavits, with the exhibits, exception part, DD, of State’s Exhibit are a has ever attorney, proposed on the been served and no district exceptions bill which includes of these other matters, possible exception with the of affidavits, has ever presented of the the clerk circuit court, been so far as shows. the record quoted
A rule of
such as that
above, which
court,
provisions
not contravene
does
Constitu
effect of
statute, has the
law and
tion or of
is as bind
litigants
upon
ing
are
courts
statutes. Hart v.
692,
Comm.,
Ind.
148 Or
701-702,
Acc.
38 P2d
that a
cited
held
In the
case we
rule of the
698.
Circuit
County
for Marion
Court
identical with the
of
rule
Twenty-First
(save
requirement,
Judicial District
for a
conflicted
with the
statute, that the bill
ex-
ceptions
presented
days
entry
be
within ten
after the
judgment)
was reasonable and
valid,
that the
authenticating
transcript
trial
action
court in
testimony
exceptions,
prior
as a
bill
without
serv-
copy
upon opposing
ice of a
thereof
counsel,
void,
transcript
expunged
and the
from the record. This
Campbell City
decision
was followed
v.
Portland,
arising
204 Or
In Ptack Or 257 P it 19, was suggested by writing Mr. Justice for the court, Eand, might it doubted a court has the “whether promulgate wholly power rule so as to inflexible deprive power court of the to exercise a sound judicial discretion in case exer- where failure to may depriving litigant cise such discretion result *7 right, legal may any aof which be lost without fault neglect upon part.” or his But the court found the record in that case did not disclose such freedom neglect, expunged excep- a bill of from fault had the trial not- tions been allowed court withstanding litigant comply the failure of with nothing suggest likewise, rule. there is Here, litigant free from that the fault. compelled
In those circumstances are we allow respondent following extent: the motions transcript testimony, affidavits, expunged except will be DD, State’s Exhibit exhibits, question of the motion for new the record. The from motion is as importance of no a matter trial trial. on the occurring errors on alleged entirely based the bill excep- it incorporated were though Even nothing, the appellant avail it tions would alleged trial, upon based for a new of a motion “denial appel- errors the of which trial, on the committed error assigned not be time, may at the knowledge lant had 184 Or Carpenter, error on Sullivan appeal.” P2d 655. 494, 199 accordance with be entered Let an order foregoing opinion.
ON REHEARING *8 por Appellant’s Rehearing Petition On petition. for Mix & Fenner, Corvallis, Sidney Attorney, District Lewis, Jr., B. and James Attorney, Deputy District W. Walton, Corvallis, contra. J.
LUSK, support petition In an affidavit filed in rehearing appellant it is shown moved directing county for an Benton trial court order *9 pay original copies the of an cost of “the and two transcript testimony, necessary of instructions, etc., objected appeal”; attorney for the that the district county required pay that the should not be the cost copies transcript testimony of of the of and that the county pay court on March 1, ordered the Í956, original copy transcript “the an cost of of the of the expressly It is not evidence”, etc. stated that the appellant indigent person, an in but, of the view order, court’s we assume this to case. be the In these circumstances, now called to our atten appellant tion for the first time, to hold the to a com pliance Twenty- with Bule 30 of the Circuit Court of the requires copy first Judicial District, which service of a proposed exceptions of bill of be to made on the party, objection would adverse be unwarranted. The attorney acquiescence of the district and the court’s objection practical making in that had the effect of compliance impossible. with rule It of would, highly course, be unreasonable to hold that for counsel appellant any duty were under themselves to bear expense procuring copies transcript of of testimony. suggestion
Counsel have renewed their pur the record be remitted to circuit court for the correcting pose incorporating the record the tran script testimony, affidavits and exhibits in the bill of exceptions. they In of the view facts as are now known this the motion will be But court, allowed. the limits powers judge regard, the circuit in this opinion, kept former stated in our must mind. He exceptions only cannot a bill anew, now settle but can it is certificate—if, correct his erroneous fact, incomplete-—so as to make it conform to what power actually done. The to make this determination 606 judge pro alone. tunc is committed to circuit
nunc opinion, cited our former In addition to the cases P Burns, 167, 136 143 171, 659, see v. 73 Or McCann McGregor Oregon 143 1100; P 143 P v. 1099, 916, P Jennings, P Co., 465; R. &N. Or 421. 87 P P 483, 493, 48 Or accompanying petition for rehear- In the brief misapprehension ing on there is disclosed an evident respecting appellant part counsel say they misled this were rules of court. Counsel by “mimeographed by the Su- instructions circulated taking appeals.” preme persons assist Court to *10 mimeographed of an instructions consist so-called adopted 1955, of and which 1, our rules June outline prepared 1955, after November became effective by designed to aid the of the Court and Clerk county making up appeal for on the record clerks particular portion filing in this court. The misleading ais statement claimed to have outline been summary concerning exceptions of bills in a of Buie 7, tran- reads: “do not attach cases, in criminal (to exceptions).” testimony script of This bill of only obviously of refers the duties clerk to making up respect on of mechanics of record appeal this after the bill court to be transmitted exceptions should and settled and of has been allowed have misled counsel. not change authority has the stat
This court no excep utory governing the settlement of bills of rules attempted to do not so. tions and has transcript phys testimony of is Whether exceptions ically to the bill of it can not, attached part only thereof the authentication and made judge. relat the trial Neither Buie certification exceptions ing in civil nor cases, Buie to bills of requires transcript testimony shall not exceptions. be attached to the bill Further con- subject sideration of the us leads conclusion exceptions transcript that since the bill and the testimony, part when made a constitute thereof, but single practice document, it is better for counsel together them attach when the bill is tendered to they clerk the circuit court and that should so remain when it transmitted the clerk to this court. The record will be remanded to the circuit court purpose for the hereinabove stated.
ON THE MERITS *14 argued appellant. for Mix the cause Robert On the Fenner, Mix Corvallis. & briefs were Deputy Attorney, District Walton, W. James Attorney, Sidney Jr., District Lewis, Corvallis, B. respondent. argued and filed brief the cause Acting *15 and Justice, Chief Before Tooze*, Rossman, and Justices. Perry**, Brand Lusk, * 21,1956. December Died ** opinion this was rendered. Chief Justice when LUSK, J. Reyes, B. Martin was convicted defendant,
The degree appealed. murder and has second understanding legal questions an raised For the by assignments full of error a defendant’s somewhat required. evidence statement defendant, On October Clifford Selig prisoners “Sonny” Rene were Shadd, and Oregon. county jail At hour Pass, Grants "Whipps, day, Nelson F. 3:20 on afternoon of County, deputy a at the sheriff for Lane arrived Grants jail prisoners and Pass named were surrendered to Eugene. transportation deputy The him for drove Eugene a had them to in sheriff’s car. The defendant person, gun had concealed on he his shown they en he told that, and route .Shadd when Shadd, stopped he removed, to eat and his handcuffs were (other Selig, deputy. party The than shoot would previously car) let out of the arrived who had been jail p. Eugene municipal at 7:30 m. Inside about jail, part normal skin search,” as a “of a routine Eugene Reyes by Police Officer Lockhart was ordered responded by drawing a .45 his clothes. He remove pistol Lock- belt, from under his forced automatic Colt county “tank,” took the hart to unlock the door keys him in a cell, and locked released from Lockhart up Whipps and held at the cell, from another Shadd gun, point him and the .45 relieved his automatic key sheriff’s to the car. and of revolver, .38 in the car. then fled northward defendant Shadd point miles north of about three one-half At a flagged they City Highway down on 99W Junction wagon Jr., H. who Littlefield, Hobart driven station accompanied their children. three his wife *16 gunpoint The defendant forced the Littlefields at into car sheriff’s and continued on northward sev- speed eral a miles at of 80 to 90 miles an hour, when vicinity he turned ear and about drove back to the wagon where the station had been left. Here the de- money, fendant robbed Littlefield of his a bill and $10 possibly gunpoint. at bill, He and then $1 Shadd family locked Littlefield and his in the sheriff’s car wagon traveling and left in the scene station north. p. high- occurred and 9:00 This between 8:45 m. The way they traveling on which were took them toward description Corvallis. Meanwhile, station wagon by police had been broadcast and Basil radio, police patrolman, Branson, Carl a Corvallis had sta- highway, tioned himself on a side road near the a short city distance south of the limits. heAs waited there wagon speed approximately the station came at a recognizing 90 miles an and hour, officer, the car description gave from the he had heard, chase, radioing pursuit. other cars that he was Inside city wagon the station wrecked as it turned was leapt a street and the defendant and Shadd out. corner, immediately, captured Reyes The officer Shadd but made off in the darkness. The .38 revolver which the Deputy Whipps had taken from defendant Sheriff wagon. later found the station At this time the victim of homicide, about James Roy Appelgate, driving his automobile down- having passengers as his his Corvallis, town two aged aged daughters, Elaine 16 and Susan and their Dorothy aged Dorothy 14. Elaine and Blacker friend, Appelgate, accompanied Mr. movie, had been to A had met them after the show was over. Susan, Appelgate from the scene crime took of the few blocks a member of the Bottemiller, into the car William pursuit police time in at the force, who was Corvallis Acting direc- under Bottemiller’s of the defendant. Appelgate car to a service station drove tions, at the corner of Associated Service known Ben’s parked the car at streets, Burén Third Van building. Although wit- rear of the service station by rulings prevented court from nesses were *17 jury why telling the car and Bottemiller entered the permitted why Appelgate him to do it is evident so, pursuit appre- purpose common and their was to “cut across seen defendant, hension of the who was Appelgate car neared the service street” Third lot on the The service station is bordered station. by by street, on the east Third street, north Yan Burén alley, a lattice an and on the south on the west alley as far as the back runs towards fence which alley. garage, on the the front of which abuts frame building and north, faces between The service station space parking cars. and the fence is a the rear of it garage Along and on the service of the frame the side property on at the time rack which there was station Appelgate parked car The three oil barrels. were building and and the fence the rear of the between building. Bottemiller of the corner southeast near the east side of the got around the the car and went out of during building defendant, who, this in search crouching under the oil appears to have been time, gotten Appelgate, who had also rack. on barrels standing near the door on the and was the car out of “Here exclaimed, and defendant side, saw driver’s gun, up and and drew his stood defendant he is.” whereupon returned, time Bottemiller at about put up his hands, Bottemiller ordered the defendant “There’s ldds hesitated, said, the latter when and, up put and, obedi- hands, his Bottemiller the car.” ence to command, defendant’s went over to facing fence it. Bottemiller testified: “I fence, went over to the toward the west end put np my np and hands. fence, He came me and held the .45 in his left hand at a distance [indicating]. point exactly like this He didn’t it pointed me. He it at off to the side and his with right my hand reached for holster and he tried my gun take ont of the holster. It didn’t come out spring. so he in and released That reached pulled on Then the holster itself. he it out. Then away he from me.” backed gun The officer’s .38 caliber Smith and Wesson revolver. The defendant backed the rear of towards Appelgate’s car to the left or and side, driver’s gun Appelgate, motioning gun pointed his at his with attempted open head the car. and his toward He the left-hand back door of but the children car, up the had locked the and rolled windows. The doors Appelgate exchanged Appel- words, defendant and they struggled, gate “jumped” defendant, *18 past moving they car as did so the back the and Appel- alley, into the several shots were where fired. gate .38 caliber which was revolver, was unarmed. The fully that the defendant it, loaded at the time seized possibly, emptied four shots were or, and three was shots from the .38 automatic. from the Three fired Appelgate’s at chest, and the took effect revolver ground. the defendant he fell he fell the As third dropped Bottemiller, and who fled, and the automatic gun, gave struggle, and retrieved had witnessed at the defendant and fired twice Bottemiller chase. good escape. his made defendant in the but the air, once evening in Monmouth. The captured the next He was from Bottemiller had taken was he which .38 revolver shrubbery the defendant recovered later some where flight. it in the defendant was had thrown his When forearm, arrested he had a in his left bullet wound pistol. apparently caliber inflicted .38 hospital Appelgate he was removed to the where evening following day, lingered when until gunshot wounds. On his he from the effect died hospital in a but conscious, admission to he was pres- profound pulse or had no blood shock, state of and him His and saw about 10:30 sure. wife was summoned presence hearing Appelgate p. m. In and attending physician if she nurse, Allen, Jean asked the major surgery, prepare and told that “his should was critical, too that there was not much condition was hope, continue it was.” and treatment could Appelgate acquainted and he nurse, said was with present, rough “This is a to her while his was wife you’ll but said, is, isn’t She it “Yes, Jean?” one, it, saying, right,” Ime, kid all he “Don’t answered, but pres- or in her wife, I won’t be.” He said to his know got got “I him” “He me three ence, almost sure my girls”, “Anyway I and fur- saved times,” right up he me.” “He me shot next to when ther, was hit the deceased of the three bullets which Two emerged body from the the front of his entered was bullet, caliber back. The third .38 was path The in the back. at the end of the bullet found gun physical within indicated evidence body it It was fired. 8 or inches when the victim’s removed from bullet testified that revolver. from Bottemiller’s back was fired present assignments iden- of error The four first questions closely defendant related law. tical grounds on the based a demurrer to the indictment filed * “* * *19 not constitute do stated facts charged crime,” particular the crime and the charged circumstances of the crime directly are not certainly being stated, such circumstances neces- sary complete required constitute a by crime as urged support ORS 132.530. It is in of the demurrer that the defendant by was entitled to be informed indictment as to whether or not the state would seek prove “felony killing murder,” that ais, in the com- attempt rape, mission of or robbery to commit arson, burglary, degree or by defined first murder ORS killing 163.010,or a attempt the commission of or any felony specified commit other than those ORS degree 163.010and defined as second murder ORS By 163.020. court overruled the demurrer. a mo- particulars tion for a bill of the same information was demanded. The motion was denied. A motion to elect, submitted after the commencement of the trial, would required have prove the state to elect it whether would charge “by proof allegations of the actual set forth by proof felony in the or indictment,” murder, and, felony person if the latter, the exact involved and the persons against whom it was committed. At the taking testimony conclusion of a like motion was interposed respecting theory on which the state go jury. would to the These motions were likewise questions denied. The court submitted to the felony degrees. murder in the first and second As to degree alleged first murder the felonies referred to instructions were the robberies shown against evidence to have been committed Hobart H. and William Littlefield, Jr., C. Bottemiller. As to sec- degree alleged felony murder, ond referred to in the instructions was assault while armed with a dan- gerous weapon upon William C. Bottemiller. To the excepted latter the defendant “for instruction the rea-
619 degree felony not included murder son that second is further reason in this and for the indictment,” form in crime of that is no transferred intent “there battery accompanied by a unless the assault is assault being battery person attempted assaulted, or on assault no transferred there would be and, therefore, weapon, dangerous from otherwise, Officer with Appelgate.” Bottemiller to James rulings, in these insofar as errors
The asserted they pertain degree murder, need not be con first guilty the verdict of of sec since the effect of sidered, degree acquit of the murder was to the defendant ond by prejudiced higher “he therefore not crime and Meyers, subject.” any ruling v. on that State 57 made (ns) 110 P 33 LRS 143. 57, 407, Or 50, indictment reads: The B. is accused the Grand
“MARTIN REYES County Jury indictment, this Benton, degree murder in first committed of the crime of as follows: day on the 24th MARTIN B. REYES said “The County of Benton and State 1955, October, of of being, Oregon, then and there and did then there feloniously, purposely
unlawfully and of de- and premeditated kill one James malice, and liberate Roy by shooting Roy Appelgate, Appelgate said James contrary pistol, the statutes with against provided, such cases made Oregon.” dignity peace of the State degree in iden murder first An indictment for Casey, 386, 108 Or v. sustained State tical form was against that it failed P the claim P 217 213 § of the state comply I, 11, Art the command of with prosecutions the “In all criminal constitution, * * * right to demand have accused shall against nature and cause of accusation him.” See, also, Holland, State v. 656, 658, Or 277 P2d 386; Trent, Or 252P P 444, 456, 975,259 893. particular ground of the demurrer here requirements the indictment does not meet the of ORS 132.530,which reads: “The indictment must direct and certain party charged, charged
to the crime and the particular charged circumstances crime when necessary such circumstances are to constitute a complete crime.” *21 charging degree
An murder, indictment second no more challenged, definite or certain than the one here supra, comply Holland, held in State v. with the requirements ap- of that section as well as all other plicable in the statutes. The demurrer case at bar was properly overruled. There is no statute of state this authorizing particulars a in a criminal bill action. pleadings proceedings in criminal actions are The by prescribed statute. pleading
“All forms criminal actions existing abolished; heretofore are and hereafter the by pleading, forms of and the rules which the suffi- ciency pleadings determined, is to be are those relating prescribed pro- to criminal the statutes cedure.” 132.510. ORS ‘‘ only pleadings part The on the of the defend- plea.” ant are demurrer and 135.430. ORS statutory provisions
The
are exclusive. State
P
Conklin,
482;
v.
47
84
State v.
62
Or
Gilliam,
621 particulars. Bosch, bill of v. Mont 566, 587, People People 477; Alviso, P2d v. 55 Cal 230, 232; App v. Thorn, 33 P2d 714, 735, Cal 5. The court denying partic- did err in not the motion for a bill of ulars. fact that the motion the defendant de- be manded to rely informed whether the state intended to felony, on homicide the commission of a not- withstanding felony was no there mention of such a indictment, sufficient indication that the defend- ant well aware nature and cause the accu- sation.
The motion to elect was likewise devoid of If merit. under this indictment evidence could re felony question ceived murder—the next to be if and, such evidence considered—, was received as premeditated killing, well as evidence which showed a the state was entitled to have the instructed on inconsistency both theories. There is no between them. Sharpe App State, People v. The 17 Tex 486, 512; Sullivan, 173 NY NE 122, 65 63 LRA 353, 93 Am Rep Judge St 582. In the speaking latter case Cullen, said: court, * * single charged There was but crime against
in the indictment the defendant,—that of *22 degree; only in the first murder the issue to be by jury determined the the whether defendant guilty of that had been crime. our Under statute (Sec. Code), applicable Penal 183, so far as to the proof, case before either that us, the defendant premedi- killed the deceased with a deliberate and design tated effect his or death, while the defend- engaged felony ant a the commission of or attempt felony, though any an a to commit without design charged. guilt life, to take established his of the crime necessary jury,
‘It is not a that in order single a verdict, to find should concur a view 623 by of the transaction disclosed the evidence. If the justified upon may either of inter
conclusion be two pretations of the the verdict cannot be evidence, impeached by showing part pro that upon interpretation part upon one the ceeded other.’ Murray L. N.Y. v. New York Ins. 96 Co., Rep. 48 Am. 658.” 614, sought proved
Only
proved or
one
could
to be
crime
be
for conviction under the indictment.
as a basis
State
62.‘3 killing felony, jury was connected with a authorized to determine whether the defendant was guilty degree homicide, if and, so, nothing crime. There was to elect, and the court com- denying mitted no error in the motion. question phase
The crucial
on this
of the case is
exception
raised
defendant’s
to the court’s instruc
jury might
tion
guilty
that the
find the defendant
degree
Appelgate
second
murder if he killed
while he
engaged in the
commission of an assault while
dangerous weapon upon
a
armed with
Officer Botte
‘‘
ground
exception
miller. One
of that
was that
second
degree felony murder is not included in this form of
question
definitely
indictment.” That
not
settled
by the decisions of this court. In several such cases
allegations
the indictments included
of the connected
Jensen,
felonies:
v.
209
State
Or
296P2d
239,
618; State
v. Merten,
175 Or
942;
P2d
State v. Dorland,
supra;
Or
While, shown, evidence of the numerous crimes committed the defendant on the evening afternoon and properly of October 24,1955, was any event, admitted nevertheless, view of the in *25 struction of the court which authorized the guilty degree find the defendant of second murder if he Appelgate killed in the commission of an assault while dangerous weapon, question a armed with discussed squarely in the cases we have reviewed is now before in weight us, we hold, accordance with decided authority, necessary charge that it is not in the killing indictment that was done in the commission attempt felony, or of, an another commit, in order proof to authorize the introduction of fact. such In Casey, addition to the authorities in cited v. State supra, King, v. see: State 24 Utah P 482, 68 91 418, Rep Am v. Bolton, St State 65 Mont 212 P 808; 74, 504; v. 109Kan P Roselli, 33, 198 195; Harris v. State, Wyo Sharpe supra 175, 242 P v. 411; 34 The State, J.); (opinion People Lytton, P. v. White, 257 NY (per J.) 290, NE 79 ALR 178 503 Cardozo, ; Ch. People Nichols, v. NY NE 230 221, 129 883; Annotation § LRA 26 Am Jur 393; 331, Homicide, 63 40 253; CJS § (Perm 148; Warren on 1038, Homicide, Homicide § ed) 178. People In York are like ours. v.
The New statutes supra, Nichols, the court said: purpose proving participation in “The up felony leads to and commission of another entirely than in homicide is different results suggested by defendant. There can be of a one of malice and no murder without evidence depraved a mind. The indict felonious intent and simply accused ment was form when it sufficient ‘wilfully, having defendant of killed the deceased ’ feloniously aforethought. (People malice with People v. 115 Y. v. Schermer Giblin, 196, 198; N. 72.) N. Y. the trial is was neces On horn, sary prove felonious malice and willful and such necessity in accord ivas satisfied conduct this showing provision of the statute ance with the the homicide occurred while defendant felony. engaged in the commission of another People Conroy, (People v. Y. 62, 68, 69; 97 N. 196.)” N. Y. Giblin, 115 felony a conviction of conclude that We employed the form of indictment here can murder under brought are to consideration sustained, and we exception sec court’s instruction on to the the second degree commission of felonious murder ond namely, transferred that there could be “no assault, is ac unless assault the crime of assault intent battery attempted battery companied on the being person therefore, there would assaulted, and, *26 dangerous weapon, assault with a transferred no Appel Bottemiller to James from otherwise, or Officer ’’ assignment the sixth gate. discuss this we will With give the follow court’s refusal on the error based ing requested instruction: hereby in order to find instructed that “You are any felony guilty of a murder defendant felony any alleged degree, you must establish direct,
some unbroken manner caused the death of Appelgate.” James misplaced.
The contention as to transferred intent is question not, is counsel for the as defendant would Keyes, attempting it, have whether while to shoot Of Appelgate ques ficer Bottemiller, shot instead. The properly tion is whether the defendant was convicted degree (1), of second murder under ORS 163.020 reads: “Any person purposely who kills another
maliciously premedi- but without deliberation and attempt or in the or tation, commission to commit felony any rape, robbery burg- other than or arson, lary, guilty degree.” of murder in the second dangerous weapon Assault while armed with is a felony rape, robbery burglary; other than arson, and, Appelgate engaged if the defendant killed while he was felony upon in the commission of that Officer Botte- guilty degree he miller, was murder in the second though shooting even he had no intention of either man. supra, p Jensen, State v. P2d at 626. The could have found from the that, time that the defendant pointed .45 automatic at Bottemiller and ordered put up Appelgate him to his until hands fell to the ground mortally by by wounded shot the de- bullets fendant from the Bottemiller revolver, officer’s was upon under the threat of defendant’s assault him, carrying prevented and intimidated it, from out purpose arresting the defendant. The assault his obviously pur- committed the defendant pose avoiding capture, killing Appelgate closely purpose of that and so linked furtherance upon part with the assault officer to constitute gestae of the res In circumstances offense. such
628 guilty murder in the defendant would be the second originally degree the crime which he under- whether technically completed or not. took has been applicable in 1 rule is thus stated on The Warren (Perm ed) §74: 327-328, Homicide carry purpose one out the “Where starts crimes, commit circumstances so of these and lulls another under one closely connected with the crime part gestae guilty of the res he thereof, to be is as of degree, whether crime first the murder technically originally he undertook has been which completed not.” or § 26 Am Jur 190. Homicide, effect is the same
To supra, judge gave, trial Brown, In State among following, approved, in- other court this involving killing commis- in a case structions, robbery: sion of a “* * * can not rule and measure, We with completed, spot the crime is exact where mark the upon highway, nor can distances would as we completion upon precise moment of its mark the we plate. not a matter of addition Crime the dial by ascertained the inten- It must be subtraction. engaged persons in it, and conduct tions by objects by conduct, are disclosed such objects.” carrying out these act in their p 206. at Or instructed the words
Here the court
any felony”
“in the commission
of the statute
killing
accomplished
must be
at some
“mean
beginning
during
interval of the
and com
time
armed
and assault while
with a
pletion
the crime
weapon.”
circumstances of this
dangerous
In the
case
subject
required,
upon the
instruction
no further
refusing
give
requested
no error
and there was
set out.
above
instruction
By assignment
Error No.
the defendant
questions: (1)
admissibility
raises
two
evidence
of crimes
the defendant
he
committed
before
arrived
(2)
Station,
at Ben’s Associated Service
failure
*28
jury
purpose
court
instruct a
to the
the
as
limited
for which such evidence was received. The defendant
prevent
Appelgate
shot
in order to
his arrest
the
officers of the
and the other
furnished
law,
crimes
killing
the motive
the
and evidence of them was,
properly
supra;
Jensen,
admitted. State v.
therefore,
Long, 195
244
v.
Or
P2d
v.
81, 112-122,
1033;
State
Bailey,
Or
P2d
v.
163, 178, 170
355;
179
State Walters,
Major,
209 P
662,
349;
105 Or
668,
Commonwealth
Rep
Pa
47 A
Am
741,
198
82
St
803; Cortez v.
Rep
State, 47 Tex Cr
812;
SW
Goodman v. State,
App
(12th
4 Tex
349; Wharton’s Criminal Evidence
ed) §
Appelgate grappled
324. Defendant
asserts
“presumably
with the defendant
of his con
because
safety
cern for the
of his
children,
not because he
any
previous
or had
interest in the
knew
activities of
appellant.”
probably
That
was
one motive but
only
ample
not
for there
one,
is
evidence that
engaged
assisting
Appelgate
was
Officer Botte
Appel
to find and arrest the defendant. It
miller
brought
gate’s cry “Here he is”
which
officer to
important
the scene. But
consideration is that the
Appelgate
that,
defendant must have known
if
should
overpowering
he
ar
him,
would
under
succeed
eventuality
very
an
which he wanted
rest. This was
point
killing
an
even to the
innocent
avoid,
much to
necessary.
way
That is
that should become
man if
certainly
and it
the view
evidence,
we view
jury
entitled to take.
were
requested the
to in
also
court
The defendant
“pertaining
that the evidence
to Ben’s
struct
night
on the
October
Associated Service Station
purpose
“solely
applied
for the
1955” should be
any,
determining
had for
if
the defendant
what motive,
Applegate.
part
shooting”
evidence was the
A
of that
killing Applegate
the defendant.
evidence
gestae.
requested
instruction
of was res
Most
it
properly
obviously
refused.
incorrect
requested
would have
instructions
Two other
pertaining
application
limited
of “the evidence
occurring prior
time
reached
to the
events
defendant
questions of
Station” to the
Associated Service
Ben’s
Technically,
requests
premeditation
and motive.
than
were other “events”
correct for there
were not
prior
the time referred to. How
that occurred
crimes
purpose of the re
knew the
no doubt
ever,
court
though they
question
quests,
be treated
will
*29
correctly
Garver,
291,
v.
190 Or
framed. State
were
is
105.
evidence
225
27 ALR2d
Where
306-308,
P2d 771,
only
purpose, for the court to
a limited
for
admissible
requested,
limiting
is error
instruction when
a
refuse
P2d
(State
413,
P2d
177
502, 176
631,
180
Moore,
v.
Or
68),
it
not
L
Ct
but
ed
68 S
332 US
necessarily
prejudicial
Wharton’s Criminal
error.
(Tex
(12th ed)
State,
v.
§ 248; Carroll
Evidence
objection
proving other
to
App)
The
Assignment complains of Error No. the refusal charge of the court to withdraw of murder in the degree. already given point For first the reason is immaterial. now
Assignment upon of Error No. 9 is based jury charge the court’s refusal to remove from the degree already of second murder. haveWe held sufficient to evidence was authorize the Appelgate find that the defendant killed in the com dangerous mission of an assault while armed with weapon upon argued only It Bottemiller. that the bearing question evidence on the whether the defendant purposely Appelgate shot is the statement of the de I him it “If shot fendant, unintentional,” made in given of an the course account of the crime police attorney defendant to officers and the district a disc, recorded on which was received evidence and marked Exhibit DD. This it is con statement, binding is not tended, controverted, and is therefore
633 § citing Evidence, 551, 465, 20 Am Jur state, on the said: where it is **
“* exculpatory truth of the Moreover, crime, of accused of one in an admission matter by must state, the in evidence introduced is falsity is presumed shown.” unless its be Assuming quoted an ex- is in truth that the sentence prosecution culpatory is bound statement and that contrary, to of evidence it in the absence usurping of case be the function court in this would of to as a matter law if it undertook declare Appelgate purposely. the defendant did not shoot enough say him It that he shot three times. should be argue jury, open It to defendant’s counsel to to the shooting they desired, accidental, that the had so question open one not an but that was a fact Langdon, N M 46 this court. As stated State ordinarily question for the P2d “it is 875, 127 presumption attaching jury” an excul- whether patory prosecu- statement has been overcome tion. And, “* * * It not to be understood that falsity, prove have to introduce state, its would enough It evidence. direct affirmative would falsity jury, appear to the of the that its satisfaction any
beyond from all of the doubt, reasonable jury.” Tex Forrester v. Texas, before facts Rep 26 ALR 537. Cr SW Assignment charges No. 10 Error error refusing following give instruction: court if from a “You are instructed that consideration you has all the find that evidence beyond proved a reasonable doubt that the defend- guilty killing Appel- ant is the unlawful James you gate to the a reasonable doubt as but have grade you of the offense, must find the defendant guilty grade being lowest of homicide man- slaughter, you your should return ac- verdict cordingly.” provides: ORS 136.050 appears
“When it that the defendant com- has mitted a crime of which are there two or de- more grees gree and there is doubt reasonable as to the de- *32 guilty, of which he is can he convicted degrees only.” the lowest of those The as court instructed follows: “* * * you If a have reasonable as doubt to guilty or not the whether defendant is of murder degree, your duty in the first then it bewill to con- guilty or sider as to not the defendant whether is degree. you of sonable doubt If not murder in second rea- have a to whether or the defendant guilty degree, is of murder the second it then duty your would be consider as to or not whether guilty manslaughter.” the defendant is fully requirements These met instructions ordinarily employed are statute and in the form necessary, It was not therefore, homicide cases. requested give by the form de instruction fendant.
Assignment of Error No. is directed to the given following by instruction the court: you presump- “I that it is a instruct conclusive tion of an murder of the law intent to from the de- deadly causing weapon liberate use of death within year.” excepted ground to the instruction on the defendant “There is no evidence to show that the defendant, that Reyes, deliberately any deadly weapon Martin B. used Appelgate.” cause the death of James we What subject already evidence suf- on the said have assignment error. It is ficiently disposes of this merit. without following gave instruction:
The court any may you person arrest that “I instruct any crime, person without warrant another robbery, including in these as defined the crime presence. in this So, in his committed instructions, beyond you that the a reasonable doubt find if case, Beyes, or at- either had was the Martin B. defendant, presence of James tempting a crime in to commit Appelgate cir- Appelgate, such Boy under the said arrest authorized to the law under cumstances said defendant. you an an arrest made
“I instruct is person of the defendant of the actual restraint custody officer, his submission to subjected more shall not be the defendant necessary proper for arrest his than restraint and detention.” assignment of error the defendant
As his twelfth says because there instruction erroneous that the *33 support to it. The defendant claims evidence was no Appelgate “jumped” that the shows that the evidence attempting The was not arrest him. defendant and given assignment the in without merit for reasons is Assignment Error No. 5. our discussion Assignment No. is of Error directed to objection in over of the the admission evidence DD, Exhibit the disc heretofore defendant State’s was the defendant’s referred on which recorded played presence in the The record was statement. jury, on and disc which it made was of the Although excep a number of in received evidence. ruling none to the court’s of them taken tions were argued accuracy has Obviously, here. been when the recording identity of the per device and the of the speaking fully son are as established, in done recording incriminating this of an case, state (as was) this ment in a accused criminal ease is as much entitled to in be received evidence as a person photograph object, place. of an a aor v. Perkins, 355 Mo 704, SW2d 168 ALR pat In with annotation 927. two of the cases cited on in the annotation discs records were in made admitted evidence. were Commonwealth v. Super Kilpatrick A Clark, 123 Pa 277 187 Kil 237; patrick, Substantially, 193 A. 123 Conn 765. only objection urged now the defendant is that go permitted jury court to the a machine on which played be record could back. The contention giving weight this could have the effect undue to the No authorities evidence. have been on cited question either of this and side we have been able principal it find On would none. seem that de be fendant’s contention cannot sustained. The disc, being necessarily in case, an exhibit to the went jury (ORS 17.320), but without machine on which the recording played could back be it would no serve objection purpose. the evidence would be unduly emphasized could be made as to a well written signed which, and when it is confession, received goes to the and can read evidence, and reread many jurors times as the desire. Indeed, record ing frequently wanting has value as evidence which is signed reproduces very for it confession, words person making used the statement in his meaning sig all the own voice with added emphasis, nificance that comes from inflection, speech. opinion In the other attributes of our there *34 rulings regard was no error in the court’s with State’s Exhibit DD.
Assignment of Error No. 14 is directed to the
denial of defendant’s motion to
from
remove
the con
jury
Appelgate’s
sideration
the evidence of
of
shooting
statements about the
made
him in the
hospital.
opinion
properly
In our
the evidence was
jury
admitted. The
could have found that
state
these
dying person,
ments
the declarations of “a
were
made
* * *
impending
respecting
under
sense of
death,
(4);
the cause of his death.” ORS 41.900
v.
supra,
p
Casey, supra,
Garver,
at
310;
Or
State v.
p
Mercep
Assignment challenges of Error No. 15 change court’s denial of the defendant’s motion for of on venue based numerous of affidavits citizens of Ben County ton that the defendant could not receive a fair impartial county. oppos trial in that The state filed ing jurors affidavits. The examination has not brought way been to this and so court, we have no knowing prediction whether the of defendant’s attor neys support in in their affidavit the motion that the problem obtaining unprejudiced fair and would almost insurmountable and in would result many days questioning prospective jurors. support among
affidavits motion show, other Boy things, Appelgate very popular that James awas County. man in Benton had Corvallis He lived years many public Corvallis attended the the father of schools there. He was three children. He organizations, including belonged to various the Ben County Oregon ton Posse, Sheriff’s Association of Elks, and the Posses, Mounted Corvallis Corvallis Appel- Mr. Church. The manner Methodist *35 gate Ms death Mm as a man of rare met reveals cour- age responsibility duty. high a and sense of civic and tragic sympathy people His death so excited the of the community amounting a to of the that fund almost persons organizations and to $10,000, wMch over family. of In contributed, raised for the benefit Ms of the facts, of all of these and the entire record, view to the claim of the defendant that he conclusive answer impartial a not accorded fair trial could be jury County that the returned a verdict of Benton is they any prejudices only degree had murder. If second they they must have entered the box been when they put them returned their able to aside before verdict. assignment complains an
The of error of final directing subpenas for to issue more order of court provided behalf of state than five witnesses on says Defendant district attor 139.060. ORS ney’s showing support application for the expected proved to to be the wit order as the facts no concern of is But this is insufficient. nesses not to be heard on He was entitled defendant’s. ruling against application, him not the order was prejudice said it is to him unless not could prejudicial prove permit to the state to its case to assignment error is frivolous. The of defendant. at direction, tMs court’s 5, 1956, On December to the circuit court the record the clerk remitted securing of certificate purpose an amendment exceptions therein the as to include so to the bill testimony, transcript if exhibits affidavits proper. judge action deem that should circuit amending judge the record without returned circuit day 20, 1956, the after December the certificate. On again argument, the record for a remitted the oral we purpose, like and on 28, 1956, December tbe circuit judge an made amended certificate and caused the record ary returned this court. The on state, to be to Janu- expunge transcript motion
23, 1957, filed a testimony. The amended certificate is effective testimony transcript of make the and other matters part exceptions. referred bill of haveWe liberally the certificate construed end that the hearing not be defendant should denied on the merits. transcript testimony, The record shows that the ex- part hibits and affidavits were tendered as a of the bill *36 exceptions provided by within time law, power can no there doubt the circuit court’s opinions amend the certificate. See this case expunge above cited. The motion to denied. ably represented by
The defendant was counsel appointed by given eminently the court and an degree fair trial. A verdict of first murder would have been warranted under evidence. No error of law justifying appears reversal trial new in the record. judgment is affirmed.