State v. Fleming
| Decision Date | 07 November 1962 |
| Citation | 232 Or. 412,375 P.2d 831 |
| Parties | The STATE of Oregon, Respondent, v. Franklin Delano FLEMING, Appellant. |
| Court | Oregon Supreme Court |
Richard D. Barber, Salem, argued the cause and submitted a brief for appellant.
Hattie Bratzel Kremen, Dist. Atty., Salem, argued the cause for respondent. With her on the brief was C. L. Marsters, Deputy Dist. Atty., Salem.
Before McALLISTER, C. J., and ROSSMAN, PERRY, GOODWIN and DENECKE, JJ.
The defendant, Franklin Delano Fleming, and his co-defendant, Roy Allen Freeman, were indicted jointly in Marion county for the crime of assault and robbery while armed with a dangerous weapon. ORS 163.280. Both defendants were found guilty by the jury and Fleming was sentenced to the penitentiary for a term not exceeding 15 years, from which he appeals. Freeman was given a life sentence, with which we are not here concerned.
The sole question presented on appeal is whether the evidence as to Fleming's participation in the crime was sufficient to support the verdict of guilty against him.
It is admitted that on Sunday evening, March 26, 1961, Freeman while armed with a sawed-off shotgun robbed the proprietor of McFarland's Market in the Keizer district north of Salem, and that he went to and departed from the scene of the crime in a car driven by Fleming, which was parked nearby while Freeman went into the market and committed the robbery. The narrow question presented in whether Fleming knew that Freeman intended to commit the robbery.
It appears from the evidence that Fleming first met Freeman in the restaurant in the bus depot at Salem, on Friday, March 24, 1961, where they were introduced by a waitress, Kay Thompson. The two men again met on Sunday morning, March 26, 1961, at Miss Thompson's apartment. About noon the two men left for Portland in Freeman's car, accompanied by Miss Thompson and another waitress named Lou Ann Amburgey. After spending the afternoon in Portland, the quartet returned to Salem at about 7:00 o'clock in the evening.
The men let the girls out of the car at the bus depot and then drove to Miss Thompson's apartment, where they exchanged cars. They left Freeman's car, took Fleming's car and with Fleming at the wheel drove north to the Keizer district where the McFarland Market is located. After driving around in that area for a short while Fleming stopped the car near the market and waited with the motor running while Freeman went into the market and robbed McFarland.
When the men exchanged cars after returning from Portland Freeman had taken from the trunk of his car and brought with him in Fleming's car a black leather jacket, a shirt, a pair of black pants and a sawed-off shotgun. According to Fleming these articles were rolled into a bundle and he did not see the shotgun until Freeman returned to the car after the robbery. It is admitted that as Fleming drove toward the market Freeman put on the shirt and black pants. It is also admitted that during the robbery Freeman wore the leather jacket and had a lady's silk stocking over his head, but the evidence does not disclose exactly when he put on the jacket and mask. Fleming testified that he had no knowledge of Freeman's intention to rob the market and knew nothing about the robbery until...
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...State v. Pace, supra, 187 Or. at 504, 212 P.2d 755. Credibility of both witnesses was for the jury. ORS 17.250, 44.370; State v. Fleming, 232 Or. 412, 375 P.2d 831 (1962). Whether or not counsel, the court or the defendant believed Mrs. Essex and Mrs. Jorgensen is immaterial. The jury evide......
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...Kloiber, Appellant, 378 Pa. 412, 106 A.2d 820, 827, cert. denied 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954); See State v. Fleming, 232 Or. 412, 375 P.2d 831 (1962); 3 Wharton, Criminal Evidence 447, § 971 (Anderson, 12th ed (2). Defendant grounded his motion for a new trial on the foll......
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...to a head injury that he suffered in the accident, the jury was not required to believe him. ORS 44.370; State v. Fleming, 232 Or. 412, 415, 375 P.2d 831 (1962). Defendant's second assignment of error is that the trial court erred in giving a so-called "Miles instruction." "If you find the ......