State v. McCarthy

• Decision Date: 25 October 1938
• Citation: 160 Or. 196,83 P.2d 801
• Parties: STATE <I>v.</I> McCARTHY
• Court: Oregon Supreme Court

160 Or. 196

83 P.2d 801

STATE

v. McCARTHY

Supreme Court of Oregon.

Argued October 4, 1938.

Affirmed October 25, 1938.

Rehearing denied November 22, 1938.

Robbery

1. An indictment for taking money by force from person of another is not required to allege that money taken was property of another than the defendant.

Homicide

2. In prosecution for first-degree murder committed while defendant was engaged in commission of crime of robbery, indictment was not insufficient because of failure to charge that money taken was not defendant's property.

Criminal law

3. In prosecution for first-degree murder committed in connection with robbery, evidence of outcry made by deceased, as defendant was leaving filling station with stolen money, that a robbery had been committed, was admissible as part of res gestae, and not narrative of a past event.

Homicide

4. In prosecution for first-degree murder committed by defendant while seeking to escape after robbing filling station, testimony of officer of oil company concerning amount of money taken, based upon examination made about an hour after commission of robbery, was properly admitted, where state had proved that cash register was in same condition as it had been immediately following robbery.

Homicide

5. In prosecution for first-degree murder committed by defendant while seeking to escape after robbing filling station, error, if any, in admission of testimony of officer of oil company concerning amount of money taken, based upon examination made about an hour after commission of robbery, was not prejudicial, since amount taken was immaterial after showing that some money had been taken.

Homicide

6. Evidence that deceased filling station attendant shot by defendant stated that he had been robbed, and testimony of person who drove into station while defendant was there that cash register was open and that money had been taken, constituted sufficient proof of robbery, in addition to defendant's confession, to justify conviction for first degree murder.

Homicide

7. The defendant, who shot and killed deceased filling station attendant while running away from filling station and while carrying money which he had stolen from station, was guilty of first-degree murder, as against contention that robbery had been consummated prior to firing of fatal shot.

Homicide

8. In prosecution for first-degree murder committed while seeking to escape after committing crime of robbery, instruction to effect that a person would still be in the act of robbery while carrying away stolen goods if there had been no interruption or delay in removal or intervention of act inconsistent with carrying away, if removal was continuous, near in point of time and place to act of violence, and if there had been no opportunity to secrete fruits of robbery, was proper.

                  See 13 R.C.L. 773 (5 Perm. Supp., 3413)
                  29 C.J. Homicide, § 82
                

In Banc.

Appeal from Circuit Court, Multnomah County.

JOHN P. WINTER, Judge.

Leroy Hershel McCarthy was convicted of first-degree murder, and he appeals.

AFFIRMED. REHEARING DENIED.

John J. Beckman and Allen Brown, both of Portland, for appellant.

James R. Bain, District Attorney, and T.B. Handley, Deputy District Attorney, both of Portland, for the State.

RAND, J.

The defendant, Leroy Hershel McCarthy, was indicted and tried upon an indictment, charging him with the crime of murder in the first degree. The jury returned a verdict, finding him guilty of the crime charged without recommending life imprisonment, and he was sentenced to death, from which judgment of conviction he has appealed.

The circumstances surrounding the commission of the crime, as shown by the evidence, were substantially as follows:

On August 10, 1937, the defendant, being armed with a loaded revolver, held up and robbed a Standard Oil station in the city of Portland and one Floyd Fuelner, the attendant then in charge of said station, and took and carried away from the cash register sixteen one-dollar bills and some other currency and coin, the exact amount of which is unknown. Immediately after committing the robbery, the defendant fled, taking the money with him. Fuelner then got into a car which had just been driven into the station by Mr. R.N. Wallace and they started to follow and apprehend the defendant. They overtook the defendant on the corner of Eleventh and Taylor streets in the city of Portland, a short distance from where the robbery had occurred. Upon seeing the defendant, Fuelner jumped out of the car and grappled with the defendant and, while so struggling, the defendant shot and killed the deceased. The weapon used was a small revolver containing bullets the points of which had been cut in order to make, as the defendant said: "a bigger hole".

There were a large number of witnesses to the shooting, one of whom testified that almost immediately before the shooting, she saw the defendant walking along the sidewalk with a roll of bills in his hands which he was counting. Another witness testified that, at the time of the shooting, she saw a roll of bills in one of defendant's hands.

After shooting the deceased, the defendant walked a short distance, where he got into an automobile driven by a Mr. Dougherty, placed the gun against Dougherty's stomach and told him "to get going". After riding a short distance, the defendant got out of the car and, while walking down Harrison street, was arrested by a member of the police force whom Dougherty had informed of what the defendant had done. While making the arrest, the defendant attempted to shoot the officer and only submitted to arrest after he had been overpowered. At the police station the defendant admitted the robbery and referred to the boy he had shot, saying: "I hope the son of a bitch dies", and "he wouldn't have got shot if he hadn't chased me", and, after being informed that Fuelner had died, he said: "It was his own fault; if he hadn't chased me he would probably have been alive today". The defendant also made and signed a written statement, in which he confessed to the commission of the robbery and to the shooting of deceased.

Defendant's first contention is that the indictment is insufficient to charge murder in the first degree for, while it charges that the crime of murder in the first degree was committed while the defendant was engaged in the commission of the crime of robbery, it fails to charge that the money taken was not the property of the defendant.

1. Regardless of what may have been the rule of the common law, or is the rule in other jurisdictions, upon this question, it is settled in this state that, in an indictment for taking money by force from the person of another, it is not necessary, under our statute, to allege that the money taken was the property of another than the defendant: State v. Dilley, 15 Or. 70 (...