State v. Gardner

• Decision Date: 11 January 1961
• Citation: 358 P.2d 557,225 Or. 376
• Parties: STATE of Oregon, Respondent, v. Donald Ray GARDNER, Appellant.
• Court: Oregon Supreme Court

Page 557

358 P.2d 557

225 Or. 376

STATE of Oregon, Respondent, v. Donald Ray GARDNER, Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted Nov. 10, 1960.

Decided Jan. 11, 1961.

Edward N. Fadeley, Eugene, argued the cause and filed briefs for appellant.

Frank R. Alderson, Deputy Dist. Atty., Eugene, argued the cause for respondent. With him on the brief was William F. Frye, Dist. Atty., Eugene.

Before McALLISTER, C. J., and SLOAN, O'CONNELL, KING and HOWELL, JJ.

HOWELL, Justice pro tem.

Defendant appeals from a conviction of the crime of burglary not in a dwelling.

The charging portion of the indictment is as follows:

'The said Donald Ray Gardner and Eugene Gardner on or about the 13th day of November, 1959, 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 with William Douglas Campbell and Richard Alfred, did then and there willfully and unlawfully, and with intent to steal therein, break and enter a certain building of another which was not a dwelling, to-wit: the Tires Unlimited building located at 2797 Roosevelt Boulevard, Eugene, Oregon, by then and there wilfully unlawfully breaking and entering through an outer door thereof; said building then and there having property of another kept therein; contrary to the statute in such cases made and provided, and against the peace and dignity of the State of Oregon.'

As defendant assigns as error the denial of a motion for acquittal made at the close of the State's case, a review of the evidence is necessary.

A burglary of the Tires Unlimited building in Eugene, Oregon, was committed on the night of Friday, November 13, 1959. The glass in a rear door was broken, entry made and a 600-pound safe removed from the building. The safe was found later in a mill pond near Eugene. The bottom of the safe had been broken or cut open and the contents, including check books and records, were scattered about the area.

The State presented evidence that the defendant, his brother Eugene, William Campbell and Richard Alfred were together in the apartment of a mutual friend on the night in question. The four left the apartment about 9:30 p. m. in a 1953 Oldsmobile car owned by one of the girls who was present at the apartment. About midnight Campbell, Alfred and two other persons were in the Oldsmobile at Pierson's Rental in Eugene where one of the four attempted unsuccessfully to rent an appliance dolly used for moving furniture. Later an appliance dolly was taken from Pierson's and found after the burglary near the rear of the Tires Unlimited building.

About 2:00 a. m. the following morning all four returned together in the Oldsmobile to the apartment. The Oldsmobile had been used as the means of transportation to the Tires Unlimited building where the burglary was committed. The four stayed briefly, departed, returned again to the apartment about 6:30 a. m. and left together at 9:30 a. m.

Later that day the defendant borrowed a cold chisel and a cutting torch from some friends. A tip from a cutting torch, which was used to open the safe, was found in defendant's car.

Alfred and Campbell both admitted their participation in the burglary and Alfred testified that the defendant's car was used to haul the safe from the Tires Unlimited building.

When the defendant returned to the apartment on Saturday, he asked the girl who had the apartment to come outside as he had a check for her to cash. The check was identified as one stolen in the burglary.

While the evidence against the defendant was circumstantial, we are not authorized to grant a new trial for insufficiency of such evidence unless we can affirmatively say there was no substantial evidence to support the verdict. State v. Duggan, 215 Or. 151, 333 P.2d 907; State v. Caputo, 202 Or. 456, 274 P.2d 798; State v. Moore, 194 Or. 232, 241 P.2d 455.

In State v. Tucker, 36 Or. 291, 305, 61 P. 894, 898, 51 L.R.A. 246, the following instruction was approved:

'Where two or more defendants are charged jointly with the commission of a crime, it is not necessary that it be shown that both of the defendants, or either one of them, when tried alone, actually broke and entered the building or took the property. It is sufficient if it be shown that the joint defendants were acting together for that purpose, and if either one of them, while so acting together for that purpose, actually broke and entered the building with the intention of stealing therein, then all of the said defendants would be guilty of the crime, and either one of them may be prosecuted alone therefor.'

This court also stated on page 306 of 36 Or., on page 899 of 61 P.:

'The breaking was proven, and there was evidence tending to show that two persons were engaged in it. Further than this, the defendant and Wilbur Fruit were found associating together shortly afterwards, and jointly engaged in disposing of the fruits of the burglary.'

In State v. Brake, 99 Or. 310, 315, 195 P. 583, 585, this court said:

'Intimate association with the accomplice, however, at or about the time of the commission of the crime, and in the neighborhood of the place where the crime was committed, may sometimes be sufficient, especially where the defendant and the accomplice were not only together, but had the fruits of the crime in their possession.'

We believe there was sufficient evidence, although circumstantial, to deny the motion for acquittal.

The defendant also assigns as error the admission of certain testimony regarding the check stolen in the burglary. The defendant contends the evidence introduced by the State from the witness Luella Smith was prejudicial as showing the defendant's participation in the crime of forgery. The following occurred:

'Q. And what did he say then? A. He said he had a check for me to cash.

'Q. All right. Where did you go after----

'Mr. Doolittle: Your Honor, unless this testimony has something to do with a later admission of some kind by the defendant this is----

'The Court: Well, if it isn't connected it will be stricken.

'Q. After that comment where did you go, if any place? A. We went down to Safeway.

'Q. And who did you go with, if anybody? A. Donnie and Doug and Clinton.

'Q. All right, referring to the defendant in this case as Donnie? A. Yes.

'Q. And which Safeway store did you go to? A. The one out on Franklin Boulevard.

'Q. And I refer you to Plaintiff's Exhibit E for identification and ask you if you recognize that. A. Yes, I guess it is the same one, I don't know.

'Q. Well---- A. I mean, I imagine it is.

'The Court: Well, do you know? Who is it made out to?

'The Witness: Louise M. Porter.

'The Court: Was it already made out when you first saw it, or was it made out after you saw it?

'The Witness: After I got in the car it was made out.

'The Court: And you recognize it?

'The Witness: Yes.

'The Court: All right.

'Q. You said it was made out in the car? A. Yes.

'Q. And do you know where Donnie Gardner, the defendant was at that time? A. He was driving.

'Q. All right. And where--you said you went to the Safeway store. Did you have possession of that check after it was written out? A. Yes.

'Q. And what did you do with it? A. I went and tried to cash it.

* * *

* * *

'Mr. Alderson: All right, You Honor, the State will offer State's Exhibit E for identification.

'Mr. Doolittle: Your Honor, it is just a general relevancy objection, but as to the----

'The Court: The objection will be overruled. It will be received.

'Q. Now, your have indicated that your weren't successful in cashing State's Exhibit E. What did you do after you were unsuccessful in cashing that check? What did you do after that? 'A. I went out of the store and went home.

'Q. When you left the store where did you first go to? A. To the car.

* * *

* * *

'Q. Now, was there any conversation, or what was said if anything when you came back to the car after having attempted to cash the check? A. I just said it wouldn't go over, and so we went back to the apartment.

* * *

* * *

'Q. Now, you were arrested and have been convicted of the charge of trying to cash that check, haven't you? A. Yes.

'Q. And you are on a suspended sentence at the present time, aren't you? A. Yes.'

It is axiomatic that in a prosecution for a particular offense evidence tending to show the defendant guilty of another distinct offense not connected with the crime charged is inadmissible. State v. Long 195 Or. 81, 112, 244 P.2d 1033; State v. Casey, 108 Or. 386, 213 P. 771, 217 P. 632; State v. Houghton, 43 Or. 125, 71 P. 982.

In State v. Folkes, 174 Or. 568, 150 P.2d 17, 35, the judgment of conviction was affirmed, although incompetent evidence was received, because the defendant in that case 'was conclusively proven guilty by his own confession corroborated by other unimpeached and uncontradicted evidence.' In the instant case the evidence of defendant's guilt was circumstantial, conflicting and for the jury to determine uninfluenced by incompetent evidence. In State v. Thomson, 203 Or. 1, 14, 278 P.2d 142, 148, this court speaking through Mr. Justice Lusk approved the following statement taken from State v. Hatcher, 29 Or. 309, 313, 44 P. 584:

'* * * 'unless the record conclusively shows that the error in the admission of incompetent evidence was not prejudicial to the party objecting, the judgment should be reversed.''

If the State desired to show the defendant had recent possession of the fruits of the burglary, it could have done so by showing the defendant's possession of the check. It was not necessary to show the forgery, the attempt to pass the check and the girl's conviction and sentence. This was, we believe, prejudicial to the defendant.

In view of another trial we will notice briefly defendant's last assignment of error pertaining to the admission of evidence of certain statements made in the presence of the accused.

The witness Dorothy Reese testified that the defendant,...