State v. Moczygemba

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: Before McALLISTER; PERRY
• Citation: State v. Moczygemba, 379 P.2d 557, 234 Or. 141 (Or. 1963)
• Decision Date: 13 March 1963
• Parties: The STATE of Oregon, Respondent, v. Robert P. MOCZYGEMBA, James E. Painter, William J. Hardy, Robert R. Hull, Appellants.

Page 557

379 P.2d 557

234 Or. 141

The STATE of Oregon, Respondent, v. Robert P. MOCZYGEMBA, James E. Painter, William J. Hardy Robert R. Hull, Appellants.

Supreme Court of Oregon, Department 2.

Argued and Submitted Jan. 11, 1963.

Decided March 13, 1963.

George A. Haslett, Jr., Portland, for appellants.

David Robinson, Jr., Deputy Dist. Atty. for Multnomah County, for respondent. With him on the brief were Chester W. Pecore, Dist. Atty., and Charles R. Harvey, Deputy Dist. Atty. for Multnomah County.

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

PERRY, Justice.

The four defendants were convicted of an assault with a dangerous weapon upon one Laura Myreen, and each appeals.

The assault occurred the evening of November 19, 1961, at the Rocky Butte Jail, Multnomah County, where the defendants were prisoners. Laura Myreen was a member of a church group which visited the jail each Sunday evening to conduct services for the prisoners. On the evening of the assault the church group had just been seated in the jail dining hall and were waiting for the prisoners to assemble before beginning the services. About 25 prisoners had filed into the dining hall and taken seats when one of the prisoners, William Johnson, suddenly grabbed Laura Myreen around the neck with one arm and pressed a kitchen paring knife to her throat. Almost simultaneously the four defendants grabbed four other members of the church group around the neck in a similar manner, and pressed homemade knives against their throats. One of the defendants stated, 'We're desperate and want out of here.'

Laura Myreen was released almost immediately when a jail guard jerked Johnson's arm and then chased him with a chair until he dropped the knife and surrendered. A few minutes later the four defendants also released their victims and surrendered their weapons.

Due to the confusion and excitement of the moment the witnesses were unable to identify which defendant held which victim. However, the witnesses positively identified the four defendants as the four men who each held a victim.

The homemade knives which the defendants wielded were made of combs and a tooth brush, with the teeth and bristles removed and one end filed to a sharp point. Handles had been fashioned by wrapping strips of gauze around one end of the comb.

The indictment charged the defendants, as principals, with assaulting Laura Myreen with a dangerous weapon. William Johnson was also joined in the indictment but was not joined in this trial. The actual assault upon Laura Myreen was committed by Johnson; none of the defendants had touched her.

Each of the defendants contends that the trial court erred when it refused to grant his motion for a directed verdict of acquittal. The basis of each defendant's motion is that there is no evidence that any one of them assaulted Laura Myreen. The state contends that the evidence discloses that each of the defendants was an aider and abettor of Johnson in the commission of the assault and each therefore is a principal. ORS 161.220, insofar as is relative to this issue, provides:

'* * * All persons concerned in the commission of a felony or misdemeanor, whether they directly commit the act constituting the crime or aid and abet in its commission, though not present, are principals and shall be indicted, tried, and punished as principals.'

Certainly mere presence at the scene of a crime, with knowledge that an unlawful assault is being committed, is insufficient evidence to convict a person as an aider and abettor of the person committing the assault. Hicks v. United States, 150 U.S. 442, 14 S.Ct. 144, 37 L.Ed. 1137; cf. 12 A.L.R. 275, III.

'* * * In order to aid and abet another to commit a crime it is necessary that a defendant 'in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.' L. Hand, J., in United States v. Peoni, 2 Cir., 100 F.2d 401, 402.' Nye & Nissen v. United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919.

It is, therefore, self-evident that if two or more persons plan or conspire to commit a criminal act to effectuate a common purpose, though only one of them actually commits the deed, the other or others have aided or abetted. State v. Brown, 113 Or. 149, 231 P. 926.

The fact that each of the defendants, as well as Johnson, had armed himself to attend a religious meeting where hostages could be taken, and at the meeting the defendants acted in concert in seizing the hostages, is ample evidence upon which reasonable minds could agree that those armed had agreed upon a plan to assault and seize some visitor or visitors for the purpose of effecting escape. Also, it is not necessary to establish that they intended that Laura Myreen was to be the person assaulted. It is sufficient...