State v. Clifford

• Decision Date: 16 November 1972
• Parties: STATE of Oregon, Respondent, v. Richard Sheldon CLIFFORD, Petitioner.
• Court: Oregon Supreme Court

Page 1371

502 P.2d 1371

263 Or. 436

STATE of Oregon, Respondent, v. Richard Sheldon CLIFFORD, Petitioner.

Supreme Court of Oregon, In Banc.

Argued and Submitted July 5, 1972.

Decided Nov. 16, 1972.

Tyler Marshall, Portland, argued the cause for petitioner. On the briefs were Tamblyn, Bouneff, McLennan, Muller, Marshall & Hawkes, Portland.

Al J. Laue, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the briefs were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen.

McALLISTER, Justice.

Petitioner was convicted as an accessory after the fact to two murders and a kidnapping committed by one Douglas Wright. The Court of Appeals affirmed, 491 P.2d 1195; 495 P.2d 49, and we granted review to determine whether the evidence was sufficient to support the verdict of guilty. We conclude that it was not and reverse.

Either late on September 1, 1969, or early on September 2, Douglas Wright killed Gail Snelling and her mother Margaret Rosenberry in their Portland home. He then left the house, taking Mrs. Snelling's five-year-old son Matt Kaarhus with him. During the night of September 3 Wright and another man came to petitioner's home and talked to petitioner, who testified that the two men wanted to buy his car, which he declined to sell.

On the afternoon of September 4 the bodies of the two women were discovered and a search for the boy was begun. According to petitioner he first learned about the murders on the evening of September 4 from a television news program. On September 5 two police detectives came to petitioner's home to search his house and to arrest petitioner on another charge. Petitioner was cooperative about the search and arrest. One of the detectives asked him if he had seen Wright and the boy. Petitioner replied either that he had not seen them or that he had not seen Wright for a long time. The Court of Appeals held that petitioner's lie to the police when they asked him if he had seen Wright was an act of aiding sufficient for conviction under ORS 161.230. ¹

The statute under which petitioner was convicted provided:

'All persons are accessories who, after the commission of any felony, conceal or aid the offender, with knowledge that he has committed a felony, and with intent that he may avoid or escape from arrest, trial, conviction or punishment.' ORS 161.230, now repealed, O.L.1971, ch. 743, § 432.

The above statute codified the common-law offense of being an accessory after the fact, which Blackstone describes as follows:

'An accessary After the fact may be, where a person, knowing a felony to have been committed, received, relieves, comforts, or assists the felon. Therefore to make an accessary Ex post facto, it is in the first place requisite that he knows of the felony committed. In the next place, he must receive, relieve, comfort, or assist him. And, generally, any assistance whatever given to a felon, to hinder his being apprehended, tried, or suffering punishment, makes the assistor an accessary. As furnishing him with a horse to escape his pursuers, money or victuals to support him, a house or other shelter to conceal him, or open force and violence to rescue or protect him. So likewise to convey instruments to a felon to enable him to break gaol, or to bribe the gaoler to let him escape, makes a man an accessary to the felony. * * *' 4 Blackstone 37--38 (Lewis ed 1898 at 1453).

The following distinction is made in 1 Bishop on Criminal Law (516--517) (2d ed 1858):

'* * * When therefore the thing done amounts to no more than a compounding of the felony, or a misprision of it, matters to be considered further on, the doer will not be an accessory. Thus he will not be such, if he merely neglects to make known to the authorities that a felony has been committed; or forbears to arrest the felon; or agrees not to prosecute him. * * *

'The true test, for determining whether one is an accessory after the fact, is, to consider whether what he did was done by way of personal help to his principal, with the view of enabling the principal to elude punishment, but the kind of help rendered appears to be unimportant. * * *'

The author then continues with examples quoted from Blackstone, supra.

Wharton, American Criminal Law 109--110 (6th ed 1868) gives further examples of conduct making one an accessory after the fact:

'An accessary after the fact is one who, when knowing a felony to have been committed by another, receives, relieves, comforts, or assists the felon, whether he be a principal or an accessary before the fact merely. Any assistance given to one known to be a felon, in order to hinder his apprehension, trial, or punishment, is sufficient to make a man an accessary after the fact; as, for instance, that he concealed him in his house, or shut the door against his pursuers, until he should have an opportunity of escaping, or took money from him to allow him to escape, or supplied him with money, a horse, or other necessaries, in order to enable him to escape, or that the principal was in prison, and the defendant, before conviction bribed the jailer to let him escape, or supplied him with materials to effect the same purpose. Merely suffering the felon to escape, however, will not charge the party so doing, such amounting to a mere omission. * * *'

A modern treatise, Perkins on Criminal Law, includes the following discussion:

'The ancient phrase used to describe the act of accessoryship after the fact is: 'where a person knowing the felony to be committed by another, receives, relieves, comforts, or assists the felon,' but it was recognized even in the very early law that comfort or assistance which had no tendency to frustrate the due course of justice was not included. The more accurate statement, in the absence of legislative enlargement of the field, is: 'An accessory after the fact is one who, knowing a felony to have been committed by another, receives, relieves, comforts, or assists the felon in order to hinder the felon's apprehension, trial, or punishment.' One does not...