State v. Laurel
| Decision Date | 30 December 1970 |
| Citation | 476 P.2d 817,4 Or.App. 122 |
| Parties | STATE of Oregon, Respondent, v. Peter LAUREL, aka Jack Frederick Leniger, Appellant. |
| Court | Oregon Court of Appeals |
Ken C. Hadley, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Robert M. Burrows, Dist. Atty., Grants Pass, argued the cause for respondent. With him on the brief was Michael D. Henderson, Deputy Dist. Atty., Grants Pass.
Before SCHWAB, C.J., and FOLEY, FORT and BRANCHFIELD, JJ.
The defendant, Peter Laurel, was convicted pursuant to ORS 163.250 of assault with a dangerous weapon, received a two-year suspended sentence and was placed on two years' probation. From this conviction he appeals, assigning as sole error the circuit court's denial of defendant's motion for a judgment of acquittal.
Four men--the defendant, Gulledge, Wilburn and Thomas--jointly occupied a piece of property in the Takilma area of the Illinois Valley in Josephine County, Oregon. Thomas held its legal title, although he and Wilburn in fact owned the property together. Located on the land was a dwelling, an outhouse and a camper-bus. The condition of the dwelling, because of inadequate plumbing and sanitary facilities, came to the attention of the Josephine County Health Department.
On four occasions prior to the alleged assault the county sanitary supervisor entered the land without a warrant to inspect the sanitary and plumbing facilities from outside the buildings. Consent to such entry was never obtained. He made recommendations to Thomas on how to cure the observed defects. None of these were followed. On the third visit, the county sanitary supervisor, accompanied by the county plumbing inspector, informed Wilburn and the defendant in the absence of Thomas that the latter had 30 days in which to correct certain specified defects in order to comply with the county and state codes. About five days later, the same inspectors returned to Mr. Thomas's property, accompanied by a deputy sheriff, in order to determine whether the defects were corrected. Thomas requested the two inspectors and the deputy sheriff to leave. They complied. Subsequently they returned again and entered the property. This time they were accompanied by the victim, a deputy sheriff. They were confronted by Thomas approximately 100 feet from the dwelling and ordered to leave forthwith, unless they possessed a search warrant. The sanitary supervisor and the plumbing inspector had been advised by the Josephine County district attorney's office that a search warrant was not legally required and that sanitary inspectors may conduct outside inspection upon private property without one. They communicated this information to Thomas, as well as informing him that their investigation was to be conducted at a distance without the need of entering any structure. They refused to leave the premises.
Thomas then summoned Wilburn from the dwelling. The ground sloped downward from the dwelling area toward where the inspectors and the deputy sheriff were standing. Wilburn appeared, wearing a gun belted around his waist, and took a position above the deputy and the inspectors approximately 30 feet from the dwelling. Gulledge appeared next from the house carrying a double-barreled shotgun. He positioned himself near the house, kneeling, with the shotgun aimed at the inspectors. Lastly, the defendant came from the dwelling carrying a revolver, and positioned himself approximately 40 to 50 feet from the dwelling at the point where the ground sloped toward the visitors.
Neither the sanitary supervisor nor the plumbing inspector were armed, and the deputy sheriff, though armed, had his service revolver in its holster at all times. The deputy sheriff, observing that the defendant had his revolver pointed toward the inspectors and himself, walked toward the defendant, told him that he was under arrest for pointing a firearm at an officer, and ordered the defendant to put down his firearm. When he was within a very few feet of the defendant, the deputy slipped on the wet incline. At this point the defendant struck the deputy over the head with the butt of the revolver. The defendant then fled from the area, and was subsequently arrested several days later. At no time did the deputy sheriff draw his weapon.
The trial court ruled that the deputy sheriff and the two inspectors were trespassers as a matter of law. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); See v. Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967).
In considering a motion for judgment of acquittal we view the evidence in the light most favorable to the state. State v. Klutke, 245 Or. 302, 421 P.2d 956 (1966); State v. Shipman, Or.App., 90 Adv.Sh. 1147, 1149, 468 P.2d 921 (1970); State v. Livingston, Or.App., 90 Adv.Sh. 1363, 469 P.2d 632 (1970).
The problem here presented concerns first the right of a landowner or occupant to act in defense of his property, and second of his person. Stowell v. Evans, 211 Cal. 565, 296 P. 278 (1931).
In State v. Weber, 246 Or. 312, 423 P.2d 767, cert. den. 389 U.S. 863, 88 S.Ct. 121, 19 L.Ed.2d 131 (1967), the Supreme Court said:
'Perkins, in his treatise on criminal law, states at page 917:
"In the absence of statutory authority the use of force intended or likely to cause death or great bodily injury is never authorized for the defense of property (as such).'
'A similar statement of the law in this regard is found in 1 Wharton, Criminal Law & Procedure, at page 709:
"The use of a deadly weapon in the protection of property is generally held, except in extreme cases, to be the use of more than justifiable force, and to render the owner of the property liable criminally for the assault * * *.'
'The 246 Or. at 319--320, 423 P.2d at 770.
See also, State v. Bartmess, 33 Or. 110, 54 P. 167 (1898); State v. Trent, 122 Or. 444, 252 P. 975, 259 P. 893 (1927); Eldred v. Burns, 182 Or. 394, 182 P.2d 397, 188 P.2d 154 (1946); Scheuffle v. Newman, 187 Or. 263, 210 P.2d 573 (1949).
At 6 Am.Jur.2d 77, Assault and Battery § 88, it states:
'In defending one's property the owner may only use such force as appears reasonably necessary for that purpose * * *.
'Ordinarily, whether excessive force has been used in defense of property is a question of fact to be determined by the jury.'
In Coghlan v. Miller, 106 Or. 46, 211 P. 163 (1922), the Supreme Court said:
'* * * (A) loaded Winchester rifle used within striking distance, either as a club or as a firearm, is a dangerous weapon as a matter of law * * *.' 106 Or. at 50, 211 P. at 165.
Whether or not reasonable force was used by the defendant in defense of the property on the foregoing facts was clearly a question for the jury.
Defendant contends also that he was defending his person from an...
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State v. Hall, C77-07-09263
...the illegal use by an officer of deadly force. See also State v. Meyers, 57 Or. 50, 110 P. 407 (1910); State v. Laurel, 4 Or.App. 122, 127-129, 476 P.2d 817 (1970) (concurring opinion). Thus, the trial court's instruction that "a person has the right to self-defense against unlawful physica......
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Barnes v. State
...The commentary to Oregon's proposed "no sock" statute referred to above was quoted in a concurring opinion in State v. Laurel, 4 Or.App. 122, 476 P.2d 817 (1970). It says that an unlawful arrest could be resisted at common law but says the modern trend is in the direction of a provision tha......