State v. Burns
| Citation | 495 P.2d 1240,9 Or.App. 392,94 Adv.Sh. 1124 |
| Parties | STATE of Oregon, Respondent, v. James L. BURNS, Appellant. |
| Decision Date | 25 May 1972 |
| Court | Court of Appeals of Oregon |
F. E. Glenn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the briefs was Gary D. Babcock, Public Defender, Salem.
John W. Osburn, Sol. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John W. Burgess, Special Asst. Atty. Gen., Salem.
Before SCHWAB, C.J., and FOLEY and FORT, JJ.
Defendant's appeal from convictions and sentence to run concurrently for both burglary in a dwelling, former ORS 164.230, and larceny over $75, former ORS 164.310, presents a Woolard question. State v. Woolard, 92 Or.Adv.Sh. 789, 484 P.2d 314, rehearing denied, 92 Or.Adv.Sh. 1633, 485 P.2d 1194 (1971).
Count I of the indictment charged defendant did 'break and enter a certain dwelling house of another, to wit: the dwelling house of Mary Goldblatt * * * with the intent to steal therein.' Count II charged 'as part of the same act and transaction' defendant did 'steal and drive away certain personal property of another, to-wit: a 1969 Ford pickup * * * the personal property of Mary Goldblatt.'
The evidence was that defendant pried open a basement window and entered the house. He went through most or all of the rooms in the house, forcing open several interior doors that were locked. He then went into the garage and stole the pickup truck referred to in the indictment.
Defendant contends his conviction for larceny based on Count II should be reversed because these facts are identical with those of Woolard, which held that a person breaking and entering with the intent to commit larceny can only be convicted and sentenced for burglary, not for both burglary and larceny. The state argues these facts are distinguishable from Woolard because defendant did not intend to steal Mary Goldblatt's pickup at the time he entered her home.
The state's suggested distinction misconstrues State v. Woolard, 3 Or.App. 291, 472 P.2d 837, Modified 92 Or.Adv.Sh. 789, 484 P.2d 314, rehearing denied 92 Or.Adv.Sh. 1633, 485 P.2d 1194 (1971). In that case
'* * * the evidence indicated that the defendant and an accomplice broke into and entered the motel room of a Mr. and Mrs. Robert G. Fox, and stole therefrom clothing, jewelry, and other items of their personal property * * *.' 3 Or.App. at 292, 472 P.2d at 838.
There was no evidence that the Woolard defendant had the specific intent to steal 'clothing, jewelry, and other * * * personal property.' Instead, the evidence was that the Woolard defendant had the specific intent to commit A larceny at the time of her unlawful entry into the motel room.
This is consistent with the general law of burglary. The state must prove that the defendant had the intent to commit any crime within the burglarized premises. This is satisfied by proof that the defendant intended to steal anything and/or everything of value discovered in the premises. The...
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State v. Meyer
...and concealing stolen property); State v. Erbs, 9 Or.App. 95, 496 P.2d 38 (1972) (burglary and attempted rape); State v. Burns, Or.App., 94 Adv.Sh. 1124, 495 P.2d 1240 (1972) (burglary and larceny); State v. Farr, 8 Or.App. 78, 492 P.2d 305 (1971), Sup.Ct. review denied, cert. denied, Templ......
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State v. Webber
...question in the affirmative because the automobile was taken from a detached garage, not from the victim's home. See State v. Burns, 9 Or.App. 392, 495 P.2d 1240 (1972). However, as noted above, we conclude the taking of the automobile was really just one aspect of the crime of armed robber......
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State v. Haas
...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 sta......