State v. Hoover

• Decision Date: 08 November 1967
• Citation: 433 P.2d 244,248 Or. 178
• Parties: STATE of Oregon, Respondent, v. Raymond D. HOOVER, Appellant.
• Court: Oregon Supreme Court

Page 244

433 P.2d 244

248 Or. 178

STATE of Oregon, Respondent, v. Raymond D. HOOVER, Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted June 8, 1967.

Decided Nov. 8, 1967.

Lloyd A. Domaschofsky, Klamath Falls, argued the cause and filed a brief for appellant.

Del Parks, Deputy Dist. Atty., Klamath Falls, argued the cause for respondent. With him on the brief were Sam A. McKeen, Dist. Atty., and Enver Bozgoz, Deputy Dist. Atty., Klamath Falls.

Before PERRY, C.J., and McALLISTER, O'CONNELL, GOODWIN and DENECKE, JJ.

PERRY, Chief Justice.

The defendant Raymond D. Hoover was convicted of the crime of being a felon in possession of a firearm capable of being concealed on his person, and appeals.

The felony of which defendant had previously been convicted is set forth in the present indictment as follows:

'* * * the crime of Taking and Using a Vehicle Without Permission committed in Klamath County, State of Oregon, on the 2nd day of August, 1962, at which time and place the said RAYMOND HOOVER did then and there wilfully, unlawfully and feloniously take and use a 1959 Chevrolet Corvette automobile bearing Oregon License number 1N9299, the personal property of Jim Easley, without authorization to do so and without the knowledge or consent of the owner, and without intent to steal the said automobile, * * *.'

At the trial, the state, over the objection of the defendant, introducted into evidence the indictment upon which the defendant had been previously convicted for the purpose of establishing has status as a convicted felon. This indictment charged the defendant with larceny of the same described automobile as alleged in the present indictment. The state also introduced into evidence the judgment record which set forth that the defendant, having been charged with larceny, 'entered a plea of guilty to the lesser included crime of taking and using a motor vehicle without permission of the owner.'

The defendant contends this was error because the jury could infer the defendant had been convicted of the greater crime of larceny or that he had been convicted of another crime distinct from that alleged in the indictment, and thus the defendant was prejudiced by the failure of the trial court to grant his motion for a mistrial.

The introduction of the indictment was improper. The proof of a prior conviction is established by the judgment record. However, we cannot believe that the jurors of this state are so lacking in intelligence that they could not read these exhibits which disclosed the taking of a described automobile on the 2nd day of August, 1962, and then have failed to understand there had been but a single taking of the automobile on that date, and that he had plead guilty to a lesser crime involved in that taking.

We, therefore, are of the opinion that, although it was improper to permit the introduction of the information, the error was not of such moment that the defendant could not receive a fair trial, and there was no abuse of discretion by the trial court in denying the defendant's motion.

The defendant gave notice of his intention to and did enter a plea of 'not guilty by reason of insanity.' The defendant called his mother as a witness to testify as to his mental capacity. She testified to acts and events which would have a bearing upon his mental condition to commit the crime charged, including a statement that defendant had been in trouble with the police 'a few times,' and that he had suffered severe head injuries in an automobile accident in December of 1954.

On...