State v. Howell
| Decision Date | 15 January 1964 |
| Citation | 237 Or. 382,388 P.2d 282 |
| Parties | STATE of Oregon, Respondent, v. John Harold HOWELL, Appellant. |
| Court | Oregon Supreme Court |
Frank E. Bocci, Eugene, argued the cause and filed a brief for appellant.
William F. Frye, Dist. Atty., Eugene, argued the cause and filed a brief for respondent.
Before McALLISTER, C. J., and PERRY, O'CONNELL, DENECKE, and LUSK, JJ.
The defendant was convicted of the crime of burglary not in a dwelling and has appealed.
The indictment charged that the defendant 'on the 19th day of November, 1962 * * * acting together and in pursuance of a common intent with James Edward Hotaling, did then and there wilfully break and enter the Creslane Grade School building in Creswell through an outer door thereof with the intent to steal property then kept therein * * *.'
Error is assigned to the court's denial of defendant's motion for a directed verdict based on claimed insufficiency of the evidence. Some of the evidence for the state was furnished by Mrs. Alohoa Vivian Chaney, who, the defendant says, was an accomplice, and it is argued that her testimony was not corroborated.
It is conceded by the defendant that the evidence establishes that early on the morning of November 19, 1962, a burglary was committed in the Creslane Grade School building in Creswell, a town located about 15 miles south of Eugene in Lane county.
Mrs. Chaney testified, in substance, that on the afternoon and evening of November 18, 1962, she was with the defendant and Hotaling, who is named in the indictment, in defendant's automobile, and that they visited several taverns where they indulged in a good deal of drinking. During this time the defendant and Hotaling talked about going to the schools and dividing the money. Later they drove the the vicinity of two school buildings in Creswell, the Creswell Upper Elementary School and the Creslane Grade School. They parked first near the Creswell Upper Elementary School and the defendant and Hotaling got out, taking with them two screwdrivers and three cotton gloves which were in the car. Because the defendant's right hand was in a half cast he took only one glove. On returning to the car they talked about a safe which they were unable to open because they needed a 'heavier bar.' They then drove to the Creslane Grade School, five blocks away, and again the defendant and Hotaling left the car, taking with them the gloves and screwdrivers, as before. Upon their return Hotaling had in his possession a quantity of money, much of it pennies and silver which they divided. The defendant's share, including a roll of pennies, was put in Mrs. Chaney's purse.
About 4:10 a. m., the defendant, still accompanied by the other two, was driving his car through the town of Veneta when he was arrested by a Lane county deputy sheriff for driving while under the influence of intoxicating liquor. The deputy found in the car a roll of nickels and a screwdriver. Later in the morning the car was searched and three cotton gloves and two screwdrivers were found. Hotaling was interviewed by a deputy sheriff the same day. He had in his possession a $20 bill, a $5 bill and two $1 bills.
Mrs. Chaney's purse was recovered by the officers with the money still in it, including the roll of pennies. The roll of pennies and the roll of nickels found in the car each had stamped on the wrapper the name of the Creslane Grade School and they were otherwise identified as the school's property. There was also evidence that in addition to the pennies and silver already referred to a $20 bill and two ones were missing from the cash register of the Creslane Grade School.
The evidence shows that entry to each of the school buildings had been gained by breaking an outer door and that the drawer of the cash register in the school's office had been pried open and the money in it, some thirty-three or thirty-four dollars, removed. The door of a file cabinet in the office had also been pried open and the petty cash kept there taken. Unsuccessful attempts had been made to pry open the door of another room in the Creslane School and the door of a safe in the Creswell School.
Expert testimony of Robert W. Pinnick, an Oregon State Police Officer assigned to the crime detection laboratory, University of Oregon Medical School, tended to show that one of the screwdrivers was used in forcing open the drawer of the cash register and another was used in an attempt to force open the door of another room in the Creslane School building as well as the drawer of the cash register and that the third screwdriver was used in the attempt to force open the door of a safe in the Creswell School.
The court instructed the jury as to the burden upon the state to produce evidence corroborating the testimony of an accomplice. The court did not instruct that Mrs. Chaney was an accomplice and we need not pass upon that question. Assuming that she was, the evidence is ample to satisfy the requirement of ORS 136.550 that the testimony of an accomplice must be 'corroborated by other evidence that tends to connect the defendant with the commission of the crime.' Entirely apart from Mrs. Chaney's testimony, there is evidence that the defendant had in his possession both the fruits of the crime and the instruments used in its commission.
The motion for a directed verdict of acquittal was properly denied.
The evidence of the burglary at the Creswell Upper Elementary School was received over the objection of the defendant that in a criminal prosecution evidence of crimes other than that charged in the indictment is not admissible. The ruling is assigned as error. We think that the evidence was properly admitted under one of the recognized exceptions to the general rule, to wit:
'When a crime has been committed by the use of a novel means or in a particular manner, evidence of the defendant's commission of similar offenses by the use of such means or in such manner is admissible against him, as tending to prove the identity of persons from the similarity of such means, or the peculiarity of the manner adopted by him.' State v. O'Donnell, 36 Or. 222, 226, 61 P. 892, 893.
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