State v. North

Decision Date25 March 1964
Citation390 P.2d 637,238 Or. 90
PartiesSTATE of Oregon, Respondent, v. John Addison NORTH, Appellant.
CourtOregon Supreme Court

D. R. Dimick, Roseburg, argued the cause and filed a brief for appellant.

Thomas D. O'Dell, Deputy Dist. Atty., Roseburg, argued the cause for respondent. With him on the brief was Avery W. Thompson, Dist. Atty.

Before McALLISTER, C. J., and ROSSMAN, O'CONNELL, GOODWIN and LUSK, JJ.

LUSK, Justice.

The defendant and one Gordon Burton Hibbard were taken red-handed while attempting to rob a vault in the basement of a bank building in Oakland, Oregon. They were separately indicted, but by stipulation, were tried together. Both were convicted. The defendant was sentenced to serve 10 years in the penitentiary with credit for the time spent in jail until his sentence should commence.

The only error assigned is to the court's failure to give the following instruction requested by sounsel for Hibbard:

'If the State of Oregon should undertake to prove a forcible breaking by the defendants, it is necessary, to constitute a breaking, that some actual force be used. If a person enters a building through an open door or window, it does not constitute a forcible breaking. If any force at all is necessary to effect an entrance into a building, through any place of ingress, usual or unusual, whether open, partly open, or closed, such entrance is a breaking sufficient in law to constitute burglary if the other elements of the offense are present. It is not regarded as a forcible breaking to enter through an open door or window.'

The defendant, although he did not request this instruction, excepted to the court's refusal to give it.

The indictment charged the defendant with breaking and entering a certain described building in the night time with the intent to commit larceny therein and with using and attempting to use nitroglycerine, dynamite and other explosive in violation of ORS 164.260. The point made in support of the assignment of error is that, while under other sections of the code denouncing the crime of burglary it is not necessary for the state to prove a breaking, this is not so of ORS 164.260. Thus, ORS 164.230 makes it a crime to break and enter a dwelling house with intent to commit a crime therein and ORS 164.240 makes it a crime to break and enter a structure other than a dwelling. ORS 164.220 reads:

'Every unlawful entry of a dwelling house, with intent to commit a crime therein, is a breaking and entering of the dwelling house within the meaning of ORS 164.230. Every unlawful entry of any building, booth, tent, railroad car, vessel, boat, or other structure or erection mentioned in ORS 164.240, with intent to steal or commit any felony therein, is a breaking and entering of the same within the meaning of ORS 164.240.'

The provision of the foregoing section that unlawful entry is a breaking and entering within the meaning of those words as used in ORS 164.230 and ORS 164.240, is not in terms made applicable to ORS 164.260, the section under which the defendant was indicted; and it is, therefore, argued that a breaking, as at common law, is an essential element of the crime of burglary under the latter section.

The record does not warrant the decision of this question. The requested instruction is faulty. In no event would it have been proper for the court to advise the jury that '[i]f the State of Oregon should undertake to prove a forcible breaking by the defendants, it is necessary, to constitute a breaking, that some actual force be used'; for, if the defendant's construction of the statute be correct, then it became the duty of the state to prove a forcible breaking regardless of what it might 'undertake' to prove. The implication of the request is that if the state did not 'undertake' to prove a forcible breaking it need not do so.

The applicable rule was thus stated in State v. Quartier, 118 Or. 637, 639-640, 247 P. 783, 784:

'A requested instruction is always properly refused, unless it ought to have been given in the very terms in which it was proposed.'

See, also, State v. Melchor, 155 Or. 225, 227, 62 P.2d 829; State v. Smith, 43 Or. 109, 115, 71 P. 973.

While we are not prepared to say that when defendants in a criminal case are jointly tried one defendant may not, by excepting to the court's refusal to give an instruction requested by his codefendant, preserve the alleged error for review on appeal, it is a practice not to be encouraged. 1 We think it would be permissible in such a case for the trial judge to disallow the exception. Here it was allowed and we have, therefore, considered the assignment of error, but with this reservation: Counsel for the defendant Hibbard also requested the following instruction:

'Every unlawful entry of any building with intent to steal or commit any felony therein, is a breaking and entering of the same.'

The court gave this instruction and the defendant North took no exception and thereby acquiesced in it. His codefendant, having requested the instruction, could not be heard to say it was erroneous. It was, moreover, inconsistent with the requested instruction which was refused and, for that additional reason, the codefendant could not complain of the refusal. 83 C.J.S. Trial § 409, p. 1127. We think that when the defendant assumed to associate himself with the refusal of his codefendant's requested instruction he should not be permitted to disassociate himself from his codefendant's contradictory requested instruction on the same subject which was...

To continue reading

Request your trial
11 cases
  • State v. Perdue
    • United States
    • Utah Court of Appeals
    • June 7, 1991
    ...State v. Cruz, 86 N.M. 455, 525 P.2d 382, 384 (App.1974); Adams v. State, 81 Nev. 524, 407 P.2d 169, 173 (1965); State v. North, 238 Or. 90, 390 P.2d 637, 639, cert. denied, 379 U.S. 939, 85 S.Ct. 344, 13 L.Ed.2d 349 (1964). We conclude that where an instruction is submitted by a party, tha......
  • State v. Atkinson
    • United States
    • Oregon Court of Appeals
    • June 18, 1986
    ...not err in refusing to give the requested instruction. 4 See State v. Francis, 284 Or. 621, 626, 588 P.2d 611 (1978); State v. North, 238 Or. 90, 93, 390 P.2d 637 (1964). Defendant offers no basis for his contention that he was entitled to an instruction on the lesser-included offense of in......
  • State v. Charles
    • United States
    • Oregon Court of Appeals
    • October 12, 1981
    ...the trial court's refusal to give a requested instruction which is inconsistent with another given at his request. See State v. North, 238 Or. 90, 94, 390 P.2d 637 (1964).5 "Exhibit 94, in my opinion, could be found by the jury to be relating (sic) directly to this incident. It mentions Wil......
  • North v. Cupp
    • United States
    • Oregon Supreme Court
    • November 19, 1969
    ...from his conviction, but no error was assigned to the receipt of evidence secured through illegal search and seizure. State v. North, 238 Or. 90, 390 P.2d 637 (1964). Petitioner then brought this post-conviction proceeding, asserting a violation of his Fourth Amendment rights because of the......
  • 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