Appeal from Circuit Court, Multnomah County. Berkeley Lent, Judge. Nos. C 72-02-0729 Cr, C 72-02-0730 Cr.
August F. Hahn, Long Beach, Washington, argued the cause for appellants. With him on the brief was Miles Sweeney, Portland.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Schwab, Chief Judge, and Fort and Thornton, Judges.
On Monday, January 24, 1972, at 1:40 a.m., a
police officer on routine patrol saw a station wagon parked on the shoulder of the Lombard Street Extension south of Marine Drive, near the Portland airport. He discovered the body of Joseph Voit, Jr., lying on its side on the front passenger seat. Death was caused by skull injuries inflicted by blows with a blunt instrument. No weapon was found at the scene. The wallet of the decedent was missing. The record does not indicate that anything of particular value was found on the body.
The decedent's wife, Virginia Voit, and her sister Doris (Dennis) Strong were indicted and upon trial by jury were found guilty of the murder. ORS 163.115. On appeal, the determinative issue is whether there was sufficient evidence to support the conviction. For the reasons which follow, we find that there was not.
At the trial, four airport employes testified they saw the station wagon parked on the Lombard Street Extension early Sunday morning, January 23, before 8:30 a.m. Three of those employes had driven the same route to or from work the previous night, past the point where the car was later found. One of them, a Miss Schonert, testified that she had seen the car parked there on Saturday night, January 22, 1972, between 10:30 and 10:45 p.m. She admitted that visibility was poor that night, and that her opportunity for observation was limited to about three seconds. The other two witnesses, who passed the same place within an hour after Miss Schonert, testified they did not see the car there that night.
Both defendants made statements to the police and testified at trial as to their activities at all relevant times.
Virginia Voit's testimony was as follows. On
Saturday, January 22, 1972, her husband was out in the afternoon, and returned home before dinner, somewhat intoxicated. Dinner consisted of rice, stew meat, gravy, corn, and either a salad or pickles, followed by strawberries over cake. He finished dinner between 7:30 and 8 p.m. Mr. Voit went to sleep on the couch. At approximately 10 p.m., Mrs. Voit received a call from the other defendant, Doris Strong, who had driven from her home in Long Beach, Washington, to the Jantzen Beach area in Portland, and needed directions to get to the Voit house. When she was unable to understand Mrs. Voit's directions, Mrs. Voit agreed to meet her so that Doris Strong could follow her home. Mrs. Voit drove the station wagon to the place where she was to meet Doris, and they had coffee in the adjacent Denny's restaurant. They observed a county sheriff in the restaurant interviewing people.
Doris Strong followed Mrs. Voit to the Voit home. Shortly after their arrival, they began playing Pinochle and drinking bourbon with Joseph Voit. An argument ensued, and Mr. Voit threatened to shoot Doris Strong. Such threats by Mr. Voit were common and were not taken seriously.*fn1 He put on his jacket and left the house, telling Doris Strong he wanted her out of the house before he returned. The defendants did not see Mr. Voit alive again.
After Mr. Voit's departure, Mrs. Voit and Doris Strong had coffee and sandwiches. Doris Strong left to return to her home at a time Mrs. Voit did not recall. Mrs. Voit went to sleep. About 4 a.m., Sunday morning, she woke up and telephoned Doris Strong's home in Long Beach to see if she had arrived home safely.
Mary Lou Strong answered the telephone and advised Mrs. Voit that Doris Strong had not yet returned home.
Defendant Doris Strong is a sister of defendant Virginia Voit. Some years prior to the murder of the decedent, Doris Strong had assumed the identity of a deceased brother named Dennis and had assumed a man's role since that time. Doris Strong, under the name of Dennis Strong, had lived with Mary Lou Strong at least since May 11, 1967. Mary Lou Strong testified that they went through a marriage ceremony on that date. They lived in Long Beach, Washington, were employed by the Ocean View Rest Home, and had owned a western-wear store in that city for approximately four years.
Some time after Mrs. Voit's call, Doris Strong returned home. Mary Lou Strong called Mrs. Voit that morning, January 23, at about 7:30 a.m., and advised Mrs. Voit that Doris had returned safely. Mrs. Voit told her that Mr. Voit had not yet returned home.
The morning of January 23, Mrs. Voit telephoned the police, hospitals, and Mr. Voit's friends, Darrell Alcorn and Roy Mattinen, in an unsuccessful attempt to locate Mr. Voit. Mr. Alcorn and Mr. Mattinen were called as witnesses by the state, and verified receiving these calls from Mrs. Voit.
Mrs. Voit also contacted Mr. Voit's sister and brother-in-law, Mr. and Mrs. Carney. The Carneys and Mrs. Voit searched unsuccessfully for Mr. Voit, checking at ...