510 P.2d 852 (Or.App. 1973), State v. Haas

Citation:510 P.2d 852, 13 Or.App. 368
Opinion Judge:LANGTRY, J.
Party Name:STATE of Oregon, Respondent, v. William Robert HAAS, whose true name is William Robert Hass, Appellant.
Attorney:Sam A. McKeen, Klamath Falls, argued the cause and filed the brief for appellant. 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.
Case Date:May 21, 1973
Court:Court of Appeals of Oregon
 
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Page 852

510 P.2d 852 (Or.App. 1973)

13 Or.App. 368

STATE of Oregon, Respondent,

v.

William Robert HAAS, whose true name is William Robert Hass,

Appellant.

Court of Appeals of Oregon.

May 21, 1973

Argued and Submitted May 7, 1973.

Rehearing Denied May 30, 1973.

Review Granted Sept. 5, 1973.

[13 Or.App. 369] Sam A. McKeen, Klamath Falls, argued the cause and filed the brief for appellant.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent.

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With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Solicitor Gen., Salem.

[13 Or.App. 370] Before SCHWAB, C.J., and LANGTRY and THORNTON, JJ.

LANGTRY, Judge.

Defendant was convicted by a jury of first degree burglary (ORS 164.225) and appeals the resulting sentence of $250 fine and two years' probation. Evidence was that two bicycles had been stolen, one from the garage of the Lehman house and one from the garage of the Jackson house in the same area (Moyina Heights) of Klamath Falls in August 1972. Defendant was indicted for the burglary from the Lehman residence. He was not charged with the other burglary.

Mr. Lehman and his son testified that they had witnessed someone riding the bicycle out their driveway and gave chase to a vehicle from which they eventually recovered the bicycle. They identified the defendant as the driver of the vehicle, and his only companion as the person who had taken the bicycle.

In camera, Officer Osterholme testified that after Miranda warnings, 1 he had questioned defendant about the Lehman theft. Defendant in substance replied that he had stolen two bicycles that afternoon and did not know which theft the officer was talking about. Defendant then showed him where the second bicycle was concealed and pointed out the two houses from which the bicycles were taken. Prior to locating the second bicycle but after his initial statement to the officer, defendant had asked if he could phone his lawyer. The court, on motion of the defendant, ruled that all reference to defendant's activities after his request for a [13 Or.App. 371] lawyer would not be admitted for failure to comply with the Miranda rules.

Officer Osterholme then testified to the jury as to the statement made by defendant that he had stolen two bicycles that day. He also testified that he had recovered a bicycle and had taken it to a Mr. White who identified it as belonging to his son, Roy. Two members of the Jackson family testified that a bicycle belonging to Roy White had been kept in their garage. Mr. Jackson testified he was unaware the bicycle had been stolen until a state police officer had brought it to his house to be identified.

Defendant took the stand and testified that he had had no prior knowledge of the burglaries, which had actually been committed by two other people who were riding around with him in his vehicle. But he said he had participated in the attempt to conceal the bicycles from their owners. He denied knowing from which houses the bicycles had been taken.

On rebuttal Officer Osterholme was permitted to testify for impeachment purposes only that defendant had taken him to and had identified the two houses.

Defendant's assignments of error raise four issues. (1). Is an attached garage part of a dwelling so that burglary from a garage would be first degree burglary? (2). Must an indictment for burglary state the crime intended to be committed inside of the entered building? (3). Was the evidence of the second burglary admissible? (4). May evidence obtained in violation of the Miranda rules be admitted for the limited purpose of impeaching the credibility of a witness?

(1). Defendant bases his argument that an attached[13 Or.App. 372] garage is not a dwelling on the contention that the 1971 legislature redefined 'dwelling' and defined 'building' for the first time in such a manner that such a garage would no longer be included as a dwelling. 2

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We do not reach this question of statutory construction because the record shows that this garage was neither a separate structure nor a separate unit. The garage was under the same roof as the rest of the dwelling and was surrounded on three sides by rooms occupied by the family. As such it was structurally no different than any other room in the house. Cf. State v. Burns, 9 Or.App. 392, 495 P.2d 1240 (1972).

(2). Defendant demurred to the indictment during the course of the trial on the ground that the indictment failed to state a crime. 3

[13 Or.App. 373] The general rule is that an indictment in the language of the statute creating the offense is...

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