George A Thacher.

Why some men kill; or, Murder mysteries revealed online

. (page 8 of 13)
Online LibraryGeorge A ThacherWhy some men kill; or, Murder mysteries revealed → online text (page 8 of 13)
Font size
QR-code for this ebook

for his wife and daughter.

Thompson found a bed of coals six feet square and three feet

74 Why Some Men Kill

high on what had been the center of the Hembree house site, but
he could find no trace of Mrs. Hembree and Ora. Thompson
notified two neighbors and they went to the site of the home and
found in the embers two human skeletons, which it was admitted
were the remains of Mrs. Hembree and Ora Hembree.

Hembree's story was that he and his wife occupied a bedroom
upstairs and that Ora occupied another room upstairs. They were
awakened in the night and found the house on fire and rushed
out of doors partially dressed. Ora exclaimed that all her good
clothes were in her room and wanted to go back to get them. Mr.
Hembree said that he looked at the stairway and saw that it
was burning underneath and told Ora not to try to go back to
her room as it was dangerous. Mr, Hembree then went into the
kitchen and threw a number of things outside, which were after-
wards found. When he went out he did not find his wife and
daughter and after looking in the barn concluded that they had
gone to Mr. Hoyt's and so followed. This was Mr. Hembree's
account of the tragedy, but he was arrested for the murder and
tried and convicted. There was no direct evidence connecting
Hembree with the alleged murder, but it was sought to establish
certain circumstances from which a certain inference was of-
fered to the jury and on that inference another inference was
based to account for Hembree's motive for killing his wife and

The motive claimed was Hembree's alleged or inferred im-
proper intimacy with his daughter, Ora. This was attempted to
be proved by the testimony of a hotel-keeper in Tillamook who
said that Hembree brought his daughter to his hotel a number
of times when she was attending school. On February 22, 1905,
Larsen, the hotel-keeper, said Hembree had been to his daugh-
ter's room "because of marks of feet there."

In June of 1905 Hembree took his daughter to the hotel and
late in the night insisted on going to her room to tell her some-
thing important. Hembree testified in his own behalf that he had
given his daughter money to keep for him to prevent him spend-
ing it for drink and that he went to Ora's room to get a few dol-
lars to buy some liquor. Three men corroborated this to the
extent of saying that he went to the hotel and when he came
back exhibited some money and went and bought some liquor
with it.

Hembree's lawyers argued that Hembree in going to his
daughter's room at the hotel without any attempt at concealment

Circumstantial Evidence 75

was not necessarily guilty of misconduct and that the jury was
incorrectly permitted to infer that Hembree was on terms of
improper intimacy with his daughter.

The Supreme Court said "Evidence showing that a party
charged with crime had a motive for committing it is not requi-
site, though such proof is of great importance in cases depend-
ing on circumstantial evidence." The court also quotes from
"People vs. Stout," a New York case, as bearing directly on this
point. In the 4th volume of Parker's Criminal Reports (New
York) this matter of inferential evidence from proved facts is
discussed at length (pages 71 to 128) on an appeal from the trial
court. Ira Stout was tried for the murder of his sister's husband,
but the evidence against him was purely circumstantial, or infer-
ential as we say in other matters. The prosecution recognized
that under the rulings of the New York courts the motive for the
murder must be established before Stout could be convicted in
view of the fact that there was no direct evidence, but only cir-
cumstantial, that he did commit the murder.

The prosecution established the fact by competent evidence
that Stout had been on terms of improper intimacy (incestuous)
with his married sister for several months before her husband
was killed. The court held on the appeal from the trial court
that Stout's motive for killing his brother-in-law was properly
deduced from this criminal intimacy with his sister and together
with the circumstantial evidence that he, Stout, did kill his
brother-in-law was sufficient to sustain the conviction of murder
in the trial court.


In Volume 3 of Parker's Criminal Reports (New York) on
pages 681-686 is given the decision on appeal in "The People vs.
Wood." This also was a murder case where there was nothing
but circumstantial or inferential evidence. Wood attempted to
kill his brother and sister-in-law and their children by giving
them poison. He failed in the case of the children but then got
himself appointed guardian of the children's estate and then cre-
ated forged claims against the estate. On his trial for murder
evidence was offered and admitted over protest tending to prove
these other crimes in order to establish a motive for the murder
for which he was being tried.

The case was appealed for a writ of error on the ground that
evidence had been admitted tending to prove other crimes

76 Why Some Men Kill

against the defendant. The court refused to grant a new trial
because the evidence offered concerning other crimes of the de-
fendant was legitimate in this case because such evidence tended
to establish the motive for the murder for which Wood was
being tried.

Justice Johnson said: "The case being one of circumstantial
evidence wholly, proof of the existence of a criminal inotive in
the mind of the prisoner to commit the act was essential to mak-
ing out a case against him which would justify a verdict of

The Oregon Supreme Court in reversing the conviction of
Hembree for murder and in ordering a new trial also referred to
the principles laid down in "The People vs. Bennett," a case
passed on by the New York Court of Appeals which is given in
Vol. 49 of the New York Reports on pages 137-149. The prin-
ciples involved in this decision have such an important bearing
on both the Branson case and the Pender case that it is worth
while to quote from it more fully than did the Oregon Supreme
Court in the Hembree case.

Bennett had been tried for killing his wife but the evidence
was wholly circumstantial. Moreover the manner of the homi-
cide was so peculiar that the question of the motive became very
important. * The court said: "Motive is an inducement, or that
which leads or tempts the mind to indulge the criminal act. It
is resorted to as a means of arriving at an ultimate fact, not for
the purpose of explaining the reason of a criminal act which has
been clearly proved, but from the important aid it may render in
completing the proof of the commission of the act when it might
otherwise remain in doubt. With motives in any speculative
sense, neither the law nor the tribunal which administers it has
any concern.

* Note : In the Bennett case the motive appeared from
the evidence to apply to the husband alone. In the Bran-
son case in Oregon the court instructed the jury that there
was no evidence tending to prove adulterous relations
between Branson and Mrs. Booth, or in other words that
no motive was established. In the Pender case the Supreme
Court said the motive of the murderer was clear; that Mrs.
Wehrman died rather than submit to dishonor, but there
was nothing to show that Pender had any such motive. It
might have been some other man.

(Jrciunstantial Evidence 11

"It is in cases of proof by circumstantial evidence tliat the
motive often becomes not only material, but controlling, and in
such cases the facts from which it may be inferred must be
proved. It cannot be imagined any more than any other circum-
stance in the case."

The New York Court of Appeals also said in this case, "In de-
termining a cpiestion of fact from circumstantial evidence, there
are two general rules to be observed : 1. The hypothesis of delin-
(juency or guilt should flow naturally from the facts proved, and
be consistent with them all. 2. The evidence must be such as to
exclude, to a moral certainty, every hypothesis but that of his
guilt of the offense imputed to him; or, in other words, the facts
proved must all be consistent with and point to his guilt not only,
but they must be inconsistent with his innocence."

The Oregon Supreme Court in the Hembree case clearly up-
held the principle established in many cases in other courts of
appeal that the motive for a crime is of great importance where
the evidence is wholly circumstantial, and also that the infer-
ences as to a motive must depend upon facts legally proved. The
Hembree decision on which hinged a man's life rested on this
point, and the court in discussing the matter of inferences re-
ferred to Section 783, 784 and 785 of Bellinger and Cotton's Code
and Statutes of Oregon where it is explicitly stated that "An in-
ference must be founded on a fact legally proved."

On the general rule that one inference cannot be based on
another and especially in view^ of the Oregon statute the court
held as to the testimony concerning Hembree's going to his
daughter's room under the known circumstances that it did not
justify the inference that he was on terms of improper intimacy
with his daughter, and that consequently the further inference
that his alleged improper intimacy with his daughter was a
motive for killing her and his wife was also a false inference
and did not in connection with the circumstances of the death of
the wife and daughter justify the verdict of guilty. The case was
reversed and a new trial ordered.

Supposing that in the trial of William Branson for the mur-
der of William Booth the case had been appealed to the Supreme
Court on the ground that there was no direct evidence whatever
of the killing of Booth by Branson and that there was no fact
established from which a motive could be properly inferred for
such alleged killing. The judge in the trial court charged the
jury: "It is claimed in this case on the part of the prosecution

78 Why Some Men Kill

for the purpose of establishing a motive on the part of the de-
fendants for the kiUing of Wilham Booth that ilHcit or improper
relations existed between the said defendants, William Branson
and Anna Booth.

"You are instructed as a matter of law, that there is no evi-
dence in this case establishing adulterous relations existing be-
tween the defendant Branson and Anna Booth."

Supposing in addition to the absence of any proven fact from
which to deduce a motive the appeal to the Supreme Court had
shown that the inference was offered to the jury that because
Mrs. Booth was seen walking along a certain road and that per-
haps Branson was riding a bicycle in the same direction coming
along at a distance behind her, that Branson and Mrs. Booth
were together in the brush near the spot where Booth was killed,
and based on that inference the second inference was offered to
the jury that Branson and Mrs. Booth were in a compromising
situation, and based on the second inference the third inference
was offered to the jury that Booth must have caught his wife
and Branson in a compromising position and that then and be-
cause of these supposed happenings Branson shot and killed

What would the Supreme Court have done in view of the
statute that "an inference must be founded on a fact legally
proved," and in view of its remarkably clear exposition of the
law both as to proving a motive and as to indirect evidence gen-
erally in the case of the State vs. Hembree?

Supposing that in the trial of John Arthur Pender for the
murder of Mrs. Wehrman the case had been appealed to the
Supreme Court on the grounds that the prosecution had estab-
lished no fact whatever from which a motive for the murder
could be deduced, and that the only evidence against Pender
consisted of inferences based on other inferences. It is true that
the prosecution introduced testimony to show that Mrs. Wehr-
man did not speak to Arthur Pender on a certain day, but three
witnesses for the defense testified that Pender was elsewhere
fighting fire on the day in question. It is also true that the
Supreme Court offered the inference that Mrs. Wehrman did not
speak to Mr. Pender because something might have happened
between them which made it impossible for her to recognize
him and that she died rather than submit to dishonor. This
contains the imphcation of course that Mr. Pender insulted Mrs.
Wehrman on some occasion. As a voluntary offering by the

Circumstantial Euideiirr 79

Supreme Court this lias a very curious sound when compared
with the opinion given by the same court in the Hembree case —
"evidence showing that a party charged with crime had a motive
for committing it is not requisite though such proof is of great
importance in cases depending on circumstantial evidence" and
the quotation from Reports of New York to the effect that in
such cases the motive "often becomes not only material but con-
trolling, and in such cases the facts from which it may be in-
ferred must be proved. It cannot be imagined any more than
any other circumstances in the case."

It was imagined, however, in Mr. Pender's case, and it is fair
to say that the court endorsed the powers of imagination

As to the circumstantial evidence against Mr. Pender in the
matter of the killing, because the bullets found in the cabin were
scratched it did not necessarily follow that they were fired out
of the revolver belonging to Riley and Hassen; because some
Colts revolver was used it did not follow that Riley and Hassen's
revolver w^as stolen and used, or that Mr. Pender stole the re-
volver, or that the murder was committed Monday night because
Riley and Hassen's revolver could not have been stolen before 6
P. M. Monday. No fact was legally established which made
these inferences legitimate. Because a neighbor passing Mr.
Pender's tent house Monday night did not notice a light in the
tent it does not follow that Pender had gone to the Wehrman
cabin. That is not a legitimate inference based on a fact. It was
not a legitimate inference that Mr. Pender took the mail to the
Wehrman cabin, even if he took it to the mail box from Scap-
poose, which is uncertain at least.

The inference that Mrs. Wehrman scratched Pender's face
because there was foreign matter under her finger nails and
some brown hairs in her dead fingers (Pender's hair is black)
was not justified because she might have scratched some other
man's face and neck and probably a man who had brown hair.

What would the Supreme Court have done if the Pender con-
viction had been appealed on these points in view of the law on
indirect evidence, and in view of the court's decision in the Hem-
bree case?

The Oregon law on indirect evidence is not peculiar to this
state, as has been shown, and there are many decisions in other
states based on the same principle that basic facts must be
established before inferences can be drawn.

80 Why Some Men Kill

Supplement to Chapter XI.

(After Chapter XL had been written I had the privilege of
reading the following brief in the case of Mr. Pender which had
been voluntarily prepared by Judge Martin L. Pipes. Judge
Pipes is one of the leading lawyers of Oregon and has taken a
great interest in the cases of Mr. Pender and William Branson
and Mrs. Booth. I was so fortunate as to secure his consent to
printing his brief in this account of these murder cases. — G.A.T.)

We submit that Pender is innocent and ought to be pardoned.
We refer to the record of his cause on trial to show that.

A murder was committed. The circumstances proved show
that probably on Sunday, September 3, or Monda3% September
4, 1911, some person entered the cabin of Mistress Wehrman,
attempted a criminal assault on her, struck her on the head with
a hatchet, shot her three times in the head, kiUing her, and shot
her little boy, six years old, three times in the head, kilhng him.

The evidence relied on to sustain the conviction of Pender
for the murder consists of three principal circumstances.

1st: That some mail consisting of a paper in a wrapper was
delivered to Pender by the postoffice at Scappoose on Labor Day.

2nd: That the pistol, a .38 calibre, with which the shooting
was done, belonged to Riley and Hassen, who lived near Pender;
that someone entered their cabin and took their pistol out of a
trunk and that it was afterwards replaced in the trunk and that
Pender knew that Riley and Hassen had a pistoL

3rd: That several days after the murder persons observed
that Pender's face was scratched, as if by finger nails.

None of these facts were certainly proved, but for the purpose
of the point now to be argued it will be assumed that these facts
were established. If they were established they fall far short of
proving that Pender was the guilty man. Aside from these facts
there is no other evidence justifying even a suspicion against

Before examining the question we make the preliminary
statement that under the law of Oregon contained in the code
and construed by the Supreme Court, an inference cannot be
based upon another inference to prove any fact in dispute, either
in a civil or criminal case, but every conclusion must be founded
upon a fact proved. In the case of State vs. Lem Woon (57 Ore-
gon, 482 and 504) a pistol was admitted in evidence. The court
said: "To admit the weapon under the proof accompanying it is
to rely on an inference from an inference and not a deduction

Judge Pipes' Brief 81

from an established fact," and this character of evidence is ex-
pressly excluded by Section 785, B. & C. Conip,, which provides
that the inference must be founded (1) on a fact legally proved
and (2) on such a deduction from that fact as is warranted by a
consideration of the usual propensities or passions of man, the
particular propensities or passions of the person whose act is in
question, the course of business or the course of nature. The
same doctrine is applied in State vs. Hembree, 54 Oregon, 463,
and in Lintner vs. Wiles, 70 Oregon, 350.

But it is not intended to argue a legal question. This rule is
not onh' the law of the land but it is the law of the human mind.
The question was not raised in this case in the Supreme Court
or it must have resulted in a reversal. The consequences of a
disregard of this rule are derived from human experience; it is
an every-day rule used by all prudent persons in their own
affairs and in their judgment of others. No prudent man would
make an important decision in his own business upon a conjec-
ture, and no just man would condemn another upon an inference
that might or might not be true. With this rule of ordinary rea-
soning in mind, let us examine the evidence.

If Pender took the paper out of the postoffice on Labor Day
there is a justifiable inference that he intended it should be
delivered to Mrs. Wehrman. The evidence is undisputed that
Pender lived five or six miles from Scappoose, that the Wehr-
mans lived about a mile further on, and that a box was kept at
Pender's cabin where the neighbors brought the mail of the
neighborhood and placed it for their convenience. Now, the
fact relied on to prove Pender's guilt was that he went to the
cabin. If he did not go to the cabin he was not the murderer.
His presence at the cabin is the fact from which guilt is to be
inferred, but that he went to the cabin at all is inferred only from
the fact that he got the paper out of the postoffice. It is one
inference drawn from another inference but an inference estab-
lishing innocence is the more reasonable inference, that is to say,

that he did what he and his neighbors were accustomed to do

put the paper in the box at his home, so of the two inferences, to
find him guilty, the jury would have to discard the innocent
inference and adopt the guilty inference.

It is not proved, therefore, that Pender went to the cabin and
if that is not proved the whole postoffice circumstances is out of
the case.

It will not do to infer that Pender took the paper to the cabin

82 Why Some Men Kill

a mile beyond his place upon the theory or supposition that he
had a criminal intent against Mrs. Wehrman, for that is to
assume the fact in issue; it is reasoning in a circle. The crimi-
nal intent must be derived from a fact, not the fact inferred
from a supposed criminal intent.

We have assumed that the delivery of the paper to Pender
on Labor Day was proved, but it was not. The testimony was too
uncertain about that to be the basis of any certain conclusion.
To test the question, suppose the question whether Pender took
the paper to the cabin were the only question in issue. Suppose
a friendly wager about that stripped the question of all those
suggestions and prejudices growing out of the crime and say
whether it has been proved even in a case of small importance
that it was Pender who got the paper or Pender who took the
paper to the cabin, or whether in fact it was not delivered to the
cabin by an innocent person on some other day before Labor
Day. But there is still another inference intervening before the
final conclusion. It is inferred that the person who delivered the
paper at the cabin did the killing; no fact of time or circum-
stance justifies such a conclusion — the probabilities are all the
other way. It was a possibility, of course, but it could just as
well happen that a neighbor, Pender or another, passing by, left
the paper and that the murderer afterwards made the visit and
committed the murder.

The second principal fact relied on is the circumstance of the
pistol. It was a 38-calibre; that is a common size and is not
sufficient to identify of itself any particular pistol, but a par-
ticular pistol — the Riley-Hassen pistol is supposed to be identi-
fied as the fatal weapon. For the present, let us suppose the
identification is complete; it was kept in a trunk; there is evidence
that it was taken out of the trunk by somebody during the ab-
sence of the owners after 6 o'clock on Labor Day, but there is not
the slightest evidence that Pender took it; there is no fact proved
tending to show that he took it. The inference that he took it is
based upon the fact that he knew that Riley and Hassen owned
such a pistol because he had borrowed it and returned it some-
time before. It is no more to be inferred that he took it than
that anybody else with the same knowledge took it — no stronger
evidence against Pender than against the owners of the pistol
themselves. They had the pistol and could have taken it on
Sunday or Monday and killed the woman with it, and that is the
most that can be said as to Pender, that he could have done it.

Judge Pipes' Brief 83

It is not meant here that the evidence even looks towards those
men and their friends would doubtless be indignant at the sug-
gestion, and justifiably so. But is Pender in a different case
merely because he is accused and they are not? Let us again
suppose that Pender's getting the pistol was the only issue; that
the owners had missed the pistol and had charged Pender with
stealing it. Would any court or jury sustain a conviction of
theft upon the proof that the accused knew where the pistol
was and could have taken it? And yet the inference that he did
take it is the foundation and the only foundation of the conclu-
sion therefrom that Pender murdered the woman with that
pistol. If you put the pistol out of the case and the mail circum-
stance out of the case you have put Pender out of the case.

We have assumed that it is completely proved that the Riley-
Hassen pistol did the killing, but in our opinion the proof is not
worthj^ of serious consideration; it is based mainly upon the
testimony of Levings, as an expert, that the bullet was marked
by a powder pit in the barrel of the pistol. Levings was the pri-
vate detective who worked up the case. Admitting that some
sleuths try to be honest and fair, it nevertheless is common
knowledge that the strong prejudice they come to have in a case
and their professional pride tincture their evidence, to say the
least, either consciously or unconsciously. This is so when they
testify about tangible and proved facts; it is more so when the
evidence is an opinion only. Levings' opinion is offset by that
of another expert to the contrarj^ but it is offset by the simplest
facts of common knowledge. Here is a bullet that was shot into
a woman's head and met with enough resistance in its course to
be stopped by the flesh and bones when fired at a few inches
distance. To say that a soft leaden bullet would show no marks
or abrasion from being so stopped is against experience and to

1 2 3 4 5 6 8 10 11 12 13

Online LibraryGeorge A ThacherWhy some men kill; or, Murder mysteries revealed → online text (page 8 of 13)