State v. Olds ( 1978 )

SCHWAB, C. J.,

specially concurring.

I concur in the majority opinion, but wish to add that arguably, at least, the evidence of the other crimes committed by defendant subsequent to the murder of Steven Schmerer was admissible.

In order to obtain a conviction the state must prove its case beyond a reasonable doubt. In this case, as in most murder cases, the state had to rely for the most part on circumstantial evidence. As a necessary element of proof the state had to show not only what gun was used to kill Steven Schmerer, but that the defendant pulled the trigger.

It is true that the fact that defendant had possession of the gun a few hours before the murder and was found in possession of it eight days later is strong evidence that he had it in his possession at the time of the murder — but it is not conclusive evidence. Proof that the defendant had it in his possession when he killed Mrs. Lindsay three days after the death of Schmerer is even stronger evidence that it was he who killed Schmerer.

The relevance of defendant’s statement that "he had killed once” to the Rileys on April 5 is self-evident. If the statement was admissible, the state was entitled to show the circumstances in which it was made. If evidence of the killing of Mrs. Lindsay by defendant was admissible, then evidence of the kidnapping of Mrs. Lindsay which preceded the killing was admissible to show how defendant came in contact with her.