State v. Goodloe

• Citation: 24 P.2d 28,144 Or. 193
• Parties: STATE v. GOODLOE.
• Decision Date: 25 July 1933
• Court: Oregon Supreme Court

24 P.2d 28

144 Or. 193

STATE v. GOODLOE.

Supreme Court of Oregon

July 25, 1933

Department No. 2.

Appeal from Circuit Court, Multnomah County; Louis P. Hewitt, Judge.

William Goodloe was convicted of an assault and robbery while armed with a dangerous weapon, and he appeals.

Affirmed.

Joe Price, of Portland, Deputy Dist. Atty. (Lotus L. Langley Dist. Atty., of Portland, on the brief), for the State.

CAMPBELL Presiding Justice.

This is an appeal from a conviction for the crime of assault and robbery while armed with a dangerous weapon, under section 14-228, Oregon Code 1930.

Appellant and four others were jointly charged in two indictments, the one in the instant case and the other for murder in the first degree. The other defendants were disposed of by pleas of guilty on either one or other of the indictments to lesser crimes contained within said indictments. Appellant pleaded not guilty and stood trial on the indictment herein.

It appears that appellant, an ex-convict, came to Portland about one month before the crime was committed and located on Cherry street near Williams avenue. At this place be engaged in the unlawful sale of intoxicating liquor. He employed as a helper a man by the name of Albert Stetson also an ex-convict. His place soon became the resort of ex-convicts and persons of shady reputations and criminal inclinations.

On the night of September 5, 1932, the four codefendants came to appellant's place and indulged somewhat freely in intoxicating liquor. At about 11:30 p. m., the four codefendants left the place and went to the Sandy Court Apartments at East Sixth and Taylor streets with the purpose of holding up Merle Barr who was engaged in the unlawful sale of intoxicating liquor at apartment 413 at said apartment house. Upon their arrival, two of the defendants remained in the car and the other two, armed with revolvers, went up to the apartment of Merle Barr where they found E. B. Barber Charles Camillo, Herbert Roe, Thelma Torrey, and the proprietor, Merle Barr. When they got in the room, they drew their guns and ordered everybody to "put up their hands." They then proceeded to rob those who were there. From E. H. Barber, the first man robbed, an elderly man, they obtained a small sum of money. From Merle Barr, they obtained about $11. Some dispute arose as to whether Merle Barr gave up all the money he had, and upon protesting that he had no more, one of the defendants shot and killed him. The record does not disclose how much money they got from the other occupants of the room. The whole affair occurred within a few minutes and was a continuous performance without intermission. The two defendants who did the actual "hold-up" then came away from the apartment got into the car with the other two defendants who were waiting and went to the home of Tony Camillo where they hid the revolvers in the attic and then returned to the house of appellant. The appellant was not in the presence of his codefendants at any time after they got into the car to leave his place at Cherry street, until they returned there about 12 o'clock midnight. This far, the facts are practically undisputed.

The testimony of one of appellant's codefendants aided materially in his conviction. If defendant were guilty, his codefendants would of course be his accomplices. One of the accomplices became a witness for the state. In his testimony, he gave an account of the whole transaction from the time they met at appellant's place until they finally separated at the same place.

1. The state called E. H. Barber, the man whom the indictment alleged to have been robbed and the complaining witness who testified over objection of appellant to certain statements made by one of the codefendants while engaged in completing the robbery of the parties in the room after he had finished robbing the witness. The whole affair being a single transaction, the declarations or statements of any one of the defendants who was a party to it, would be admissible against all. A conspiracy is an agreement or combination by two or more persons to do an unlawful act, or to do a lawful act by unlawful or criminal means. People v. Richards, 1 Mich. 216, 51 Am. Dec. 75. There is evidence, and there are circumstances tending to show that appellant loaned his codefendants a revolver with which to stage the robbery; that he procured for them the use of the car employed by them; that after the codefendants returned to his place, the fruits of the robbery were divided with appellant. If this evidence be true, and the jury must have believed it, then the conspiracy did not terminate at the room in the Sandy Court Apartments, but continued until the loot was divided, so that any statements by a conspirator during this time would be admissible against all. Oregon Code 1930, § 9-226, subsec. 6; State v. Boloff, 138 Or. 568, 4 P.2d 326, 7 P.2d 775; State v. Milo, 126 Or. 238, 269 P. 225; State v. Lewis, 51 Or. 467, 94 P. 831.

2. This assignment of error is based on the court permitting witnesses to testify of the shooting of Merle Barr. This shooting occurred almost immediately after the robbery of Barber and the whole affair was one transaction.

There can be no question but that the general rule is that the commission of a separate crime cannot be proven in support of the one in the indictment. State v. Willson, 113 Or. 450, 230 P. 810, 233 P. 259, 39 A. L. R. 84; State v. Walters, 105 Or. 662, 209 P. 349; State v. Sullivan, 139 Or. 640, 11 P.2d 1054. But there are exceptions to this rule.

"This exception is of value in a homicide where the accused has taken the life of two or more persons at or about the same time or place. So (the fact) that the accused had killed three persons at one time and place in an attempt to commit a burglary may, of necessity, be proved on his trial for the murder of any one of them." Underhill's Criminal Evidence (3d Ed.) § 154, p. 205; 1 Wharton's Criminal...