State v. Miller

Citation238 Or. 411,395 P.2d 159
PartiesSTATE of Oregon, Respondent, v. Virgil Wayne MILLER, Appellant.
Decision Date10 September 1964
CourtSupreme Court of Oregon

Richard D. Curtis, Eugene, argued the cause and filed a brief for appellant.

Mitchell Karaman, Deputy Dist. Atty., Eugene, argued the cause for respondent. With him on the brief was William F. Frye, Dist. Atty., Eugene.

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

DENECKE, Justice.

The defendant was found guilty by the court, sitting without a jury, of the crime of being a convicted felon in possession of a concealed weapon. The only ground of appeal is that there is insufficient evidence to support a finding of guilty.

ORS 166.270 provides:

'Any unnaturalized foreign-born person or any person who has been convicted of a felony against the person or property of another or against the Government of the United States or of this state, or of any political subdivision of this state, who owns, or has in his possession or under his custody or control any pistol, revolver, or other firearm capable of being concealed upon the person, or machine gun, shall be punished upon conviction by imprisonment in the penitentiary for not more than five years.' (Emphasis added.)

It was stipulated that the defendant previously had been convicted of a felony against the person or property of another. The weapons involved were capable of being concealed upon the person. The sole issue is whether the defendant had such weapons 'in his possession or under his custody or control.'

The trier of fact could have found the facts to be as follows: The defendant drove his brother-in-law's car from defendant's home in California to Oakridge, Oregon, a distance of 300 or 400 miles. Defendant was accompanied by Hart, an acquaintance of some years, and Nichols, a very recent acquaintance. The stated purpose of the trip was to get work or to visit relatives.

About 50 miles before Oakridge Nichols got out of the car. The testimony of why he got out and what transpired shortly after he got out is contradictory and vague. The state police understood Nichols to accuse Hart and the defendant of 'rolling' him. For this reason state patrolmen were radioed to stop Hart and defendant Miller.

An officer stopped the car at Oakridge. After Miller and Hart got out, the officer shined his light inside the car and saw the butt of a revolver sticking out from under the front seat, on the passenger's side. The weapon was loaded. On looking under the seat, he found a loaded pistol, near the middle but slightly on the passenger's side. The butt of the pistol was toward the front of the car and the safety was off. A third loaded weapon was found in the glove compartment.

The officer also saw 'a mask that was silk hose with a knot in it,' and two left-hand rubber gloves, all lying in the middle of the front seat.

The defendant testified that he did not know the weapons were in the car. Hart stated that he brought the weapons with the intention of selling them and that t...

To continue reading

Request your trial
17 cases
  • State v. Alvarado
    • United States
    • Court of Appeals of Oregon
    • July 24, 2013
    ...possession of the pistol in question. Defendant admitted that he purchased the gun and had it in his vehicle. See State v. Miller, 238 Or. 411, 413–14, 395 P.2d 159 (1964) (holding that a driver's knowledge that there are “concealable weapons in the car, available for the driver's use, is e......
  • State v. Ayers
    • United States
    • Court of Appeals of Oregon
    • April 30, 1974
    ...the rifles and the shotgun in evidence was not error. Possession can be shown by inference and circumstantial evidence. State v. Miller, 238 Or. 411, 395 P.2d 159 (1964); State v. Moore, Or.App., 97 Adv.Sh. 930, 511 P.2d 880 (1973); State v. Wikum, 6 Or.App. 405, 488 P.2d 815, Sup.Ct. revie......
  • People v. Butler, Docket No. 62895
    • United States
    • Supreme Court of Michigan
    • May 27, 1982
    ...or operation of the vehicle, and (5) the length of time during which defendant drove or occupied the vehicle. See State v. Miller, 238 Or. 411, 395 P.2d 159 (1964); Commonwealth v. Whitman, 199 Pa.Super. 631, 186 A.2d 632 (1963); People v. Davis, 157 Cal.App.2d 33, 320 P.2d 88 (1958); Water......
  • State v. Williams
    • United States
    • Court of Appeals of Oregon
    • June 9, 1999
    ...was sufficient evidence to support the conclusion that he was in constructive possession of the weapon); see also State v. Miller, 238 Or. 411, 413, 395 P.2d 159 (1964) (indicating that either a driver or a passenger might have a weapon concealed in a car under that person's "custody or How......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT