State v. Oster

• Decision Date: 07 November 1962
• Citation: 376 P.2d 83,232 Or. 389
• Parties: STATE of Oregon, Respondent, v. Jack Lee OSTER, Appellant.
• Court: Oregon Supreme Court

Page 83

376 P.2d 83

232 Or. 389

STATE of Oregon, Respondent, v. Jack Lee OSTER, Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted Sept. 12, 1962.

Decided Nov. 7, 1962.

Elmer M. Amundson, Salem, argued the cause and filed a brief for appellant.

Gary D. Gortmaker, Deputy Dist. Atty. for Marion County, Salem, argued the cause for respondent. With him on the brief was Hattie J. Kremen, Dist. Atty. for Marion County, Salem.

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

PERRY, Justice.

The defendant was convicted of the crime of burglary not in a dwelling, and appeals. He assigns as errors the refusal of the trial court to grant his motion for a directed verdict of acquittal; the admissions of evidence of another crime; the admission of certain fruits of the crime, which were not shown by direct testimony to have been in defendant's possession; and, that the instruction requiring corroboration of the testimony of an accomplice was erroneous.

The error assigned in the refusal to grant a directed verdict of acquittal is based upon the argument that there was not sufficient corroboration of the testimony of the accomplice as to defendant's participation in the commission of the crime charged to sustain the verdict.

Our statute, ORS 136.550, which requires corroboration of an accomplice's testimony, was thoroughly analyzed and construed by the late Mr. Justice Harris in State v. Brake, 99 Or. 310, 195 P. 583, where it is said:

'* * * The corroborating evidence must connect, or tend to connect, the defendant with the commission of the crime charged; and, furthermore, the tendency of the corroborative evidence to connect the defendant must be independent of any testimony of the accomplice. The corroborative evidence must of its own force, independently of the accomplice testimony, tend to connect the defendant with the commission of the crime.

'Evidence which relates exclusively to the commission of the crime or to the circumstances of the commission is not sufficient. The requirement of the statute is not satisfied by producing evidence showing that a crime was committed by some person or persons; but there must be evidence, independently of the accomplice testimony, tending to show that the defendant was connected with the commission of the crime.

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'The corroborative evidence need not be direct evidence; but the statute is satisfied even though the evidence is entirely circumstantial.'

This rule has been applied in numerous decisions of this court. See State v. Reynolds, 160 Or. 445, 86 P.2d 413.

The heart of the rule is simply that there must be evidence, independent of the evidence of the accomplice, which would lead reasonable minds to a belief that the defendant criminally participated in the crime charged.

Since we may not rely upon the testimony of the accomplice, though his testimony would fully support a verdict of guilty were it not for the requirements of ORS 136.550, we will set forth the evidence, independent of Walling's testimony.

The Mortarless Block Company building, which was burglarized, was entered some time between Saturday noon, April 15, 1961, and 1:30 or 2 p. m. April 16. There was taken therefrom a check protector, a binder in which blank checks were kept, numerous blank customer checks issued by The Commercial Bank of Salem, and a rubber stamp with the words 'Mortarless Block Company' thereon, and beneath these words, the numbers '64-102-02.' The Block Company had used this stamp with its name and the numbers on checks it issued and proposed to issue. The numbers were used by The Commercial Bank of Salem for bookkeeping purposes in the identification of its account with its customer, the Mortarless Block Company.

Other facts, independent of the testimony of the accomplice, Kendall C. Walling, are these: The defendant Oster, the accomplice Walling, one Mrs. Josette Forkner, and Miss Jean Elders, were together at a restaurant and cocktail lounge in Polk County, known as the Y Cafe, Saturday night, April 15, until 2 a. m. of April 16. Sometime after 2 a. m. of the 16th they left the cafe. While the parties were still in the cafe lounge, Walling was heard to tell the defendant that he had to stop at the Mortarless Block Company, where he was employed, on his way home to pick up some work he was supposed to have finished Saturday. He also asked defendant not to let him forget it.

That same day, in the evening, the defendant, Walling and Josette Forkner were again seen together at the Y Cafe. While they were together on that evening, Walling presented to the proprietor of the cafe a check payable to himself, drawn on a customer's check furnished by The Commercial Bank of Salem, and obtained funds thereon. The check, purporting to have been drawn by some one having the authority of the Mortarless Block Company, had stamped thereon the name of the Block Company and the account number of the company by use of the company's rubber stamp. The check protector taken in the burglary also had been used in filling in the amount. This check was a forgery.

Robert Bluemmel, a deputy sheriff of Marion County, testified that he had gone to the scene of the burglary on Sunday p. m. April 16, and after ascertaining the names of employees, had started a...