State v. Carroll

• Court: Oregon Supreme Court
• Writing for the Court: KELLY, Justice.
• Citation: State v. Carroll, 155 Or. 85, 62 P.2d 830 (Or. 1936)
• Decision Date: 01 December 1936
• Parties: STATE v. CARROLL.

62 P.2d 830

155 Or. 85

STATE v. CARROLL.

Supreme Court of Oregon

December 1, 1936

Department 1.

Appeal from Circuit Court, Multnomah County; Jacob Kanzler, Judge.

James Carroll was convicted of the crime of assault upon an indictment charging robbery by force and violence to the person, and he appeals.

Affirmed.

K. C Tanner, of Portland (Green, Tanner & Boesen and Tom Garland all of Portland, on the brief), for appellant.

T. B. Handley, Deputy Dist. Atty., of Portland (James R. Bain, Dist. Atty., and Albert M. Hodler, Deputy Dist Atty, both of Portland, on the brief), for the State.

KELLY Justice.

At the termination of the series of events disclosed by this record defendant Carroll was not personally present. Carroll was charged jointly with Clarence Gradl, Joseph C. O'Brien, another, against whom an order of dismissal was entered, and John Doe, with the crime of robbery not being armed with a dangerous weapon committed on the person of J. Kessler on May 2, 1935.

Kessler, J. O. Hightower, and Edward W. Hollis were employed as seamen on board the Larry Doheny, which on the date named was anchored at the Shell Oil Docks, Portland. They left the boat at approximately 6 p. m. on said day, taking a taxicab, with directions to the driver to go to the Multnomah Hotel. Before reaching that hotel, the cab in which they were driving was intercepted by defendant Carroll and several other men. The State's witnesses testified that many of these men were armed with monkey wrenches, cranks, and other weapons; and, in effect, that Kessler and his companions were compelled to leave the taxicab and enter the car Carroll was driving. They were then taken by Carroll and his associates to the Seamen's Hall. From that hall they were taken by Carroll and his associates to a room in the S. P. Hotel, where they were questioned and their personal effects were examined, and where it was proposed that they return to the boat and endeavor to induce the other seamen on board to leave the boat with them. To execute this plan, two bottles of whisky were secured, Kessler then advancing $5 with which to purchase it. This liquor, it was suggested, should be taken to the boat and presented to the boatswain as a means of explaining their return to the boat. During the time Kessler and his mates were in the room at the S. P. Hotel Carroll left it. Carroll says that his purpose in leaving the room was to take some books to the meeting in session. Kessler's baggage and that of his companions, with which they left the boat, was to have been taken to the stage depot. Carroll, O'Brien, and some others accompanied Kessler and his mates to a taxicab at the S. P. Hotel and caused them to enter it, telling them that they would be accompanied by a man in it armed with a gun for their protection. After this taxicab had gone some distance, it was intercepted by Carroll and Gradl, according to the testimony of Kessler, and Gradl entered it, directed the driver to drive to the S. P. yards on the east side of the Willamette river, where, according to Kessler, Gradl gave him a beating and robbed him.

When the events of this case transpired, there was in progress a strike of the members of the Seamen's Union against the employers engaged in cargo shipments of oil. Defendant Carroll was a member of the striking union and a member of the strike committee in the Port of Portland. Defendant Gradl was a member of the Seamen's Union, and, when Kessler and his companions were taken to the Seamen's Hall, Gradl was door tender there, a meeting of one branch of the striking seamen being in session. Kessler and his companions were strike breakers.

Shortly after the occurrence at the S. P. siding above related, defendant Carroll was arrested, and in his possession was the draft of a telegram which Carroll had prepared, signed, and intended to send to the strike committee in Los Angeles. This telegram is as follows: "Found three rats here per S. S. Larry Doheny, investigate this information at once. These rats came from the Marine Service Bureau, 6th & Main in Los Angeles. Mr. Fish is hiring. They are housing them at Ritz Hotel Los Angeles. Entire 12th floor of this hotel. All air. We took good care of the boys. Wire me answer."

Carroll testified that this telegram was written before he had any knowledge that Gradl had assaulted Kessler; but it is susceptible of the construction that Carroll participated in the treatment accorded Kessler.

The testimony in behalf of defendant conflicts with that of the state's witnesses in respect to all of the material points in the case.

It is urged by defendant that, in order to sustain the conviction of Carroll for assault, it must appear that he was an accessory to the crime of robbery. This contention is based upon the fact that the indictment charges the commission of robbery; and it is said that, unless there is testimony tending to show that a defendant, who is not personally present at the commission of a crime, aided or abetted in the crime charged, no conviction can be had.

This argument fails to take account of the fact that the crime of assault is charged in the indictment. Abner v. Com., 210 Ky. 536, 276 S.W. 513; People v. Allie, 216 Mich. 133, 184 N.W. 423; People v. Brockett, 195 Mich. 169, 161 N.W. 991; Robertson v. State, 24 Ala.App. 237, 133 So. 742; Anderson v. State, 168 Miss. 424, 151 So. 558; People v. Foss, 85 Cal.App 269, 259 P. 123; State v. Beatty, 59 Wash. 235, 109 P. 1011; Johnson v. State, 17 Ala.App. 416, 85 So. 576; Ex parte Carson, 17 Ala.App. 345, 85 So. 827; State v. McDonald, 91 N.J.Law, 233, 103 A. 165, affirming 89...