State v. Hicks
| Decision Date | 14 May 1958 |
| Citation | 213 Or. 619,325 P.2d 794 |
| Parties | STATE of Oregon, Respondent, v. Ralph Marlyn HICKS, Appellant. |
| Court | Oregon Supreme Court |
William Frazier, Deputy Dist. Atty., for Clackamas County, Oregon City, argued the cause for respondent. With him on the brief were Robert Y. Thornton, Atty. Gen., and Winston L. Bradshaw, Dist. Atty., for Clackamas County, Oregon City.
William E. Love, Portland, argued the cause for appellant. With him on the brief were Cake, Jaureguy, Hardy & Buttler, Portland.
On 10 January 1957 the defendant Ralph M. Hicks and Paul R. Bailieaux were jointly indicted by the grand jury of Clackamas County for the crime of burglary not in a dwelling. The charging portion of the indictment reads as follows:
'That said Ralph Marlyn Hicks and Paul Rowtan Bailieaux on or about the 10th day of December, A.D., 1956, in the said County of Clackamas and State of Oregon, then and there being, did then and there unlawfully and feloniously break and enter, by then and there cutting a hole in the wall thereof, a certain building, to-wit: Molalla Food Market located on Highway No. 211, 500 yards west of the city limits of Molalla, in said county and state, in which said building there was at said time kept certain personal property, to-wit: certain valuable goods and chattels, with intent then and there on the part of them, the said Ralph Marlyn Hicks and Paul Rowtan Bailieaux, to then and there unlawfully take and steal therein, and carry away, said personal property, to-wit: said goods and chattels, said act of defendants being, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.'
Defendant pleaded not guilty. Separate trials were held, the defendant being tried first. The State introduced its evidence and rested. The defendant presented no evidence. The defendant moved for a directed verdict of not guilty or in the alternative for an order withdrawing the charge of burglary and limiting the issue to a charge of attempted burglary. The motion was based upon the contention that there was no substantial evidence of guilt to go to the jury. Both motions were denied; exception was taken and allowed; the case was submitted to the jury and a verdict of guilty of burglary was returned. On 28 January 1957 the defendant was sentenced to the penitentiary for the maximum statutory period of five years.
On 2 April 1957 and within the time limited by ORS 168.040 the district attorney filed an information under the Habitual Criminal Act, ORS 168.010 et seq., charging the defendant with two previous convictions, to wit: for the crime of robbery first degree committed in California, and for the crime of robbery committed in Washington, the conviction in California being in the year 1939 and the conviction in Washington in the year 1943. The defendant filed a motion to dismiss the information, which was denied, and then filed a demurrer which was overruled. Thereafter the defendant in open court admitted the alleged previous convictions. The court on 8 July 1957 vacated the judgment and sentence of 28 January 1957 and imposed a sentence of ten years upon the charge of burglary not in a dwelling. The defendant appeals.
This appeal may be divided into two separate parts; the first relating to the trial upon the burglary charge, and the second to the proceedings under the Habitual Criminal Act. We will first consider the issues raised concerning the trial for burglary. Defendant's assignment of error No. 1 is based upon the order of the trial court in denying a motion for a directed verdict of not guilty. As stated in defendant's brief:
'On this appeal defendant's exception to the ruling on the motion is limited to whether there existed sufficient evidence from which a jury could find beyond a reasonable doubt that an unlawful 'entry' with intent to steal or commit a felony was made by defendant or Bailieaux.'
From the brief of the State, we read:
'Plaintiff submits that that portion of defendant's Bill of Exceptions designated Exception Number 1, and all matters pertaining thereto contained in defendant's brief should be stricken from the record, and the Plaintiff so moves, on the grounds that the appeal from the judgment entered on January 28, 1957, was not properly perfected.'
The State relies upon ORS 138.180, 168.060, and Rule 7 of this court. The first section cited relates to the duty of the clerk of the trial court to transmit specified papers to the clerk of this court within 30 days or within 'such further time as such court or the judge thereof may allow * * *.' ORS 138.180. The other cited section provides that sentences imposed under the Habitual Criminal Act are reviewable on appeal. Rule 7 of this court merely provides in detail for the transmission of papers from the trial court to this court on appeal.
It is the contention of the State that we are not authorized on this appeal taken from the judgment in the habitual criminal proceedings to consider alleged errors occurring at the original trial in the burglary case. The prosecutor suggests a very serious problem and one which may require legislative or judicial clarification at the proper time. He poses the following problem:
* * *'
It is argued that the right to appeal under ORS 168.060 does not give the defendant a right to include matters arising from the original trial unless he has perfected an appeal from the judgment therein. It may be suggested that the answer to the problem posed by the prosecution is to be found in what was said in State v. Durham, 177 Or. 574, 164 P.2d 448, 450, 162 A.L.R. 422. We quote:
'* * * In our opinion, when the court disposed of the habitual criminal proceeding and entered final judgment of conviction, the defendant had the right of appeal therefrom and could review the entire proceedings commencing with the original prosecution. * * *'
This pronouncement is not decisive of the question with which we are concerned. In State v. Durham the trial court imposed no sentence until after the habitual criminal case had been heard and determined. There was only one judgment from which an appeal could be taken. Under those circumstances, the defendant was of course entitled, on his appeal, to have a review of the proceedings had at the main trial. State v. Durham is not in point.
The hypothetical question raised by the prosecution should not be decided in this case because the facts do not present that question. True, the appeal papers in the burglary case have never reached this court and we would not judicially know that an appeal was ever taken except for the frank statement of fact in the brief of the State. The facts appear to be as follows: The defendant took an appeal from the five-year sentence of January 1957. Thereafter he was granted 30 days from 22 April 1957 in which to file his transcript and bill of exceptions. Previously and on 2 April 1957 the district attorney filed his information under the Habitual Criminal Act, which in legal effect amounted to a request that the judgment and sentence from which defendant was appealing be vacated and a new sentence for the crime of burglary be imposed. Defendant apparently did not perfect his appeal from the first sentence but awaited the outcome of the habitual criminal proceedings and appealed from the second judgment of 8 July 1957. The section which immediately follows ORS 138.180 reads as follows:
'If the return is not made as provided in ORS 138.180, the appellate court may, on motion of the respondent and notice to the defendant, order the appeal to be dismissed unless for good cause it retains the appeal and requires the clerk of the court below to make a further return as to any matter affecting the merits that appears or is alleged to be omitted from the transcript.' ORS 138.190.
Neither the judicial record nor the statement of the district attorney shows that any motion was made or served for dismissal of the first appeal or that any order of dismissal was ever made. If such motion had been made it would have raised two questions; first, whether it was necessary to take and perfect an appeal from the judgment of 28 January as well as from the judgment of 8 July in order to preserve the right of appeal on account of errors, if any, committed at the first trial, and second, if it was necessary to take such a double appeal, whether the court should for good cause shown 'retain' the first appeal. We need not now say whether it was necessary to take two appeals in order to raise the question as to the correctness of the ruling on the motion for directed verdict at the first trial. We are confident that by some means the defendant was entitled to raise that question. He did appeal; it has not been dismissed, and in the interest of justice we shall consider that issue.
The evidence in this case convincingly establishes that the defendant and his accomplice deliberately planned to burglarize Reid's Molalla Food Market. They were equipped with the tools of their trade, a gun, a flashlight and a hammer, the striking portion of which was taped to prevent noise in its use. Bailieaux worked with brace and bit to cut a hole through the west wall of the building, while the defendant stood on watch a few feet away. The police had reason to believe that the two men would attempt to break and enter the building and several of them had concealed themselves therein. The hole was cut in the wall, after...
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