State v. O'Donnell

• Decision Date: 05 January 1962
• Citation: 367 P.2d 445,229 Or. 487,74 Or.Adv.Sh. 3
• Parties: STATE of Oregon, Respondent, v. John Ambrose O'DONNELL et al., Appellant.
• Court: Oregon Supreme Court

Page 445

367 P.2d 445

229 Or. 487

STATE of Oregon, Respondent, v. John Ambrose O'DONNELL et al., Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted Oct. 10, 1961.

Decided Jan. 5, 1962.

Thelma Chapman Fowler, Eugene, argued the cause for appellant. With her on the brief was Jane A. Gearhart, Eugene.

William F. Frye, Dist. Atty., Eugene, argued the cause for respondent. With him on the brief was Kenneth A. Morrow, Deputy Dist. Atty., Eugene.

Before McALLISTER, C. J., and ROSSMAN, PERRY, GOODWIN and LUSK, JJ.

PERRY, Justice.

The defendant, along with two others, was indicted by the Lane county grand jury for the crime of grand larceny. The indictment charged that:

'The said Walter Frank Sanders, John Ambrose O'Donnell, and Harry Lee Smith on or about the 2nd day of May, 1960, in the County of Lane and State of Oregon, then and there being, and then and there acting together and in pursuance of a common intent, did then and there wilfully steal certain property, to wit: approximately Four Thousand One Hundred Seventy-five Dollars and Twenty-four Cents ($4175.24) in lawful money of the United States, then and there being the property of Pay Less Drug Stores, Inc., a corporation, and then and there being of a value in excess of $75; contrary to the statute in such cases made and provided, and against the peace and dignity of the State of Oregon.'

At his request defendant O'Donnell was tried separately. The jury returned a verdict of guilty and defendant appeals.

In establishing the crime of larceny and defendant's complicity therein the state relied upon circumstantial evidence. In order to consider the merits of defendant's assignments of error it is necessary to examine the evidence given at the trial. We therefore set out quite fully the significant facts.

During the early morning hours of May 2, 1960, Sergeant Larion of the Eugene Police Department observed an automobile with Montana license plates traveling very slowly in a southerly direction on Willamette Street in the city of Eugene. He was able to see that two men occupied the front seat and that they appeared to be looking intently at each side of the street as they drove. He followed the car for a few blocks and when it turned right onto Tenth Avenue he radioed to Officer Dirks that he should intercept it and investigate the occupants because they appeared suspicious. Larion last observed the vehicle as it was midway between Willamette and Olive Streets on Tenth Avenue.

When Officer Dirks first saw the car it was northbound on Olive Street and turning east on Seventh Avenue, still traveling very slowly. By the time he stopped it with his siren and red light, the vehicle had turned south onto Willamette Street and was approximately at the location where Sergeant Larion had first observed it. Mr. Sanders got out and explained to Officer Dirks that he was going to the coast and had gotten off the main route. He was the driver and Smith was occupying the front seat with him. In the rear was defendant O'Donnell, apparently asleep, lying on a pile of coats which elevated him about one foot off the seat. Dirks asked the men for identification and O'Donnell furnished registration papers for the automobile.

After receiving certain information on his radio, the officer arrested Smith on a vagrancy charge and took him in his police car to the City Hall. Following along behind was the automobile containing Sanders and O'Donnell and behind that another police car driven by Officer Stedjskal, who had arrived on the scene just as Smith was being handcuffed. All three vehicles were parked in front of the City Hall. Dirks took Smith into the building. The others remained outside in their cars. Stedjskal departed on another call and O'Donnell and Sanders were left alone.

Approximately ten minutes later Sergeant Larion came out to question the two men. They were sitting in their automobile. He talked to Sanders first and asked him where they had come from. The latter stated that the three of them had driven from Billings, Montana, to the city of Yellowstone, had stopped there a couple of days and had then continued on through Prineville and over Highway 126 to Eugene. He said that they were en route to Coos Bay at the time. Upon being asked why they were driving around the downtown area Sanders replied that they were short of money and were looking for a cheap hotel. The Sergeant then asked the same questions of defendant O'Donnell and was given the same information by him.

As the questioning progressed Sergeant Larion became more suspicious so he asked whether he might look through the car. Sanders said, 'Sure, go ahead.' The Sergeant noticed that O'Donnell was sitting in the rear seat and that next to him was a bunch of coats lying loosely in a plie, not packed down. Under the driver's seat he found a tear gas pen, loaded and cocked, together with an extra tear gas shell and in the trunk there were several tools lying on top of some luggage. Sergeant Larion then placed the men under arrest on charges of vagrancy and possession of burglary tools. He took the keys from their automobile and locked it and then transported them to the city jail in a police car. On the way he observed in the rearview mirror that O'Donnell rolled down the right window and placed his hand up to it several times as if he were throwing something out.

When they reached the jail Sanders and the defendant were booked and their clothing was taken from them. It was hung in a 'dressing-in' room, which was under the supervision and constant observation of the jailor. Sergeant Lesiak of the Detective Division was present and he questioned defendant concerning his whereabouts and those of his companions during the previous evening. O'Donnell refused to discuss his whereabouts during the night but he did assert that he and his companions had been together at all times. Sergeant Larion returned to his patrol car. Upon opening the door he noticed an empty coin wrapper lying on the rear seat where O'Donnell had been sitting.

Larion went to the City Hall and there he and Officer Dirks made an extensive search of the defendant's car. Under and behind the dashboard they found a roll of paper currency totaling $394.00 and a five dollar roll of quarters. Inside the car they also found three pairs of gloves. In the trunk were the tools, including a splitting mall ax, a splitting wedge, brace and bit, hammer, hollow rod and a keyhole saw. All of these items were turned over to Officer Lockard, Identification Technician of the Eugene Police Department, and he locked them in the evidence room.

About 7:45 that morning Officer Greenough, who had just come on duty at the City Hall, noticed a red plastic diaper bag and a canvas bag lying on the pavement just a few feet from where the defendant's automobile had been parked a few hours before. On the plastic bag was a sales sticker from the Pay Less Drug Store and inside was a large quantity of rolled coins. There were some heavy tools in the canvas bag. He took the bags inside the building and gave them to Chief of Police Ellsworth. The latter turned them over to Officer Lockard, Sergeant Lesiak and Lieutenant Glenn. These men took the bags to the Identification Division in the jail building and there the contents were examined. The diaper bag was found to contain $1,283.46 and in the bag of tools there were three crowbars, two...