State v. Fitzgerald
| Decision Date | 26 March 1974 |
| Citation | 518 P.2d 678,16 Or.App. 376 |
| Parties | STATE of Oregon, Respondent, v. Jeffrey E. FITZGERALD, Appellant. |
| Court | Oregon Court of Appeals |
Don S. Dana, Salem, argued the cause and filed the brief for appellant.
Scott McAlister, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.
Before SCHWAB, C.J., and LANGTRY and THORNTON, JJ.
Defendant was convicted by a jury of the crime of escape in the second degree, ORS 162.155, and appeals, contending that his motion for acquittal should have been granted because the facts warranted submission to the jury of only a charge of attempt to escape. ORS 162.135(4) defines escape as 'the unlawful departure * * * of a person from custody * * *.'
The testimony heard by the jury from the witnesses indicates that defendant with other inmates of the Oregon State Penitentiary had been taken to the county courthouse in Salem for hearings upon various writs they had filed. After the court session, prison guards were escorting them to a vehicle in the courthouse parking lot. As they arrived at the vehicle, defendant and one other prisoner broke and ran. One guard followed each. The guard following defendant testified that defendant did not get more than about 15 or 20 steps ahead of him, that they ran into an adjacent street and into traffic, and that he was no closer than 10 steps behind defendant when a shot was fired upward into the air by a deputy sheriff who was observing the episode. Defendant stopped immediately. The guard returned defendant to the vehicle. He testified that as they returned defendant said, 'I can outrun you but I couldn't outrun the bullets.' Defendant did not testify or take oath in the case but when the guard testified to the above quotation the record shows that defendant spontaneously denied it.
The guard said that he never felt otherwise but that he would recapture defendant. The deputy sheriff who fired the shot in the air said he did so more to stop traffic than anything else because of the danger of some vehicle's striking the running individuals. When asked whether he thought '* * * there (was) even a good chance in your opinion, having observed it, that the officer would catch Mr. Fitzgerald,' he testified 'No.' He also testified on cross-examination that there was a possibility the guard would overtake defendant. Both the guard and the deputy sheriff testified that defendant was definitely out of control and custody of the officers.
The thrust of defendant's argument is that inasmuch as he was only some 10 steps ahead of the officer when he stopped it could not be said he was out of the guard's control. In Raff v. Farm Bureau Ins. Co., 181 Neb. 444, 447, 149 N.W.2d 52, 55 (1967), the court quoted with approval from Webster's New International Dictionary...
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State v. Fore, No. 99C56483
...rev. den., 301 Or. 240, 720 P.2d 1279 (1986) (the defendant "escaped" where officer was in continuous pursuit); State v. Fitzgerald, 16 Or.App. 376, 378-79, 518 P.2d 678, rev. den. (1974). Here, defendant's escape was complete as soon as he ran away from the road crew, and certainly no late......
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State v. Lonergan
...the only issue addressed was the proper interpretation of the phrase "escaping from custody." Id. 5. See also State v. Fitzgerald, 16 Or.App. 376, 518 P.2d 678 (1974). In Fitzgerald, the defendant, an inmate at Oregon State Penitentiary, ran away from an escorting officer while he and other......
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State v. Hassman
...took a substantial step toward, but never succeeded in, escaping. A similar argument was rejected by this court in State v. Fitzgerald, 16 Or.App. 376, 518 P.2d 678 (1974), where we held that testimony indicating that defendant was only 10 or 20 steps ahead of a prison guard was sufficient ......
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State v. Metcalfe
...no longer being within the peace officer's effective restraint or control. That interpretation is consistent with State v. Fitzgerald, 16 Or.App. 376, 518 P.2d 678 (1974). There, while being escorted from the Marion County Courthouse to a vehicle for transport to the Oregon State Penitentia......