State v. Shay
| Decision Date | 11 April 1972 |
| Citation | 8 Or.App. 360,493 P.2d 737 |
| Parties | STATE of Oregon, Respondent, v. Roy Willard SHAY, Appellant. |
| Court | Oregon Court of Appeals |
William D. Green, Jr., Roseburg, argued the cause and filed the brief for appellant.
Doyle L. Schiffman, Dist. Atty., Roseburg, argued the cause and filed the brief for respondent.
Before SCHWAB, C.J., and LANGTRY and FORT, JJ.
The defendant was convicted after jury trial of the crime of accessory to the commission of a felony and was sentenced to pay a fine of $250. ORS 161.230, 164.670. 1 He appeals, asserting that the trial court erred in denying (1) his motion to dismiss the indictment, (2) his motion for acquittal at the conclusion of the state's case, and (3) his motion for a directed verdict of acquittal at the conclusion of the trial.
The principal in the crime to which defendant was convicted of being an accessory, Harold W. Wylie, pleaded guilty to taking and using a motor vehicle without the owner's permission. ORS 164.670. He was sentenced to 90 days in the Douglas County jail.
The facts, which are not seriously in dispute, show that on January 30, 1971, the defendant and Wylie were passengers in a car driven by the defendant's brother, Robert Shay. There was evidence that Robert Shay stopped the car, backed it up alongside a car belonging to a Mr. and Mrs. Cagle, and let Wylie out. The Shay brothers then proceeded down the road for a distance when the right rear tire of the car in which they were riding went flat.
In the meantime, Wylie, after leaving the Shays, immediately hot-wired the Cagle car and drove it away. He passed the defendant and his brother, who were changing the flat tire, pulled off alongside the road and backed up to the Shay car. The Shays asked Wylie to come with them, but he refused and continued down the road in the Cagle car. The defendant and his brother, who was driving, followed Wylie shortly thereafter. They found him parked beside the road with the Cagle car high-centered on the edge of an embankment with the motor racing, the tires smoking and flat and the engine in gear. Wylie then, at the request of the defendant and his brother, left the Cagle car and got into the Shay car. At trial the defendant testified that it was his desire to get Wylie 'away from the scene, to get him out of there.' Later the defendant was let out at his home in Roseburg, Oregon, and Robert Shay and Wylie returned to their respective homes in Central Point, Oregon.
Subsequently, when the defendant was questioned by police, he denied that Wylie had been with his brother and him on January 30, 1971, and that he was unaware of Wylie's use of the Cagle car. 2
ORS 161.030(2) provides:
ORS 161.210(2) provides, 'There are no accessories in misdemeanors.' The defendant would have us conclude that the 'only * * * reasonable interpretation of these statutes is that since (the principal) Wylie was sentenced on the basis of a misdemeanor, no charge can properly continue against the accessories,' and, therefore, the indictment against the defendant should have been dismissed. We disagree.
It will be recalled that ORS 164.670(1) provides that a person 'who takes or uses without authority any vehicle * * * without intent to steal it' may, in the court's discretion, be punished by a fine or county jail sentence, rather than a penitentiary sentence, if he is a first offender. Thus, under defendant's construction, whether or not there could be accessories to the violation of ORS 164.670 might depend upon whether the principal was a first offender. Furthermore, the construction defendant urges requires that no accessory could ever be indicted, tried or sentenced until the principal was indicted, tried and sentenced. Such results are unreasonable and, in our view, clearly inconsistent with ORS 161.250:
'An accessory may be indicted, tried and punished though the principal is not indicted or tried.'
While ORS 161.030 requires that a crime punishable, in the discretion of the court, by either imprisonment in the penitentiary or by imprisonment in the county jail is to be treated as a misdemeanor 'for all purposes' as to the particular principal in the crime, State v. Commedore, 239 Or. 82, 85--86, 396 P.2d 216 (1964) (overruling In re Enright, 160 Or. 313, 85 P.2d 359 (1938)), we hold that, if the principal is punishable by imprisonment in the penitentiary, the crime is deemed a felony for purposes of determining whether there may be accessories. 3
We conclude that it was the intention of the legislature to measure the responsibility of an accessory under ORS 161.030 by the nature of the crime committed by the principal as distinguished from the punishment imposed upon the particular principal. We believe this to be consistent with the statute, which in its opening sentence states:
'A felony is a crime which is punishable...
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State v. Pritchard
...if the crime is also punishable by imprisonment in the county jail and the latter punishment was actually imposed. State v. Shay, 8 Or.App. 360, 493 P.2d 737 rev. den. (1972).4 We need not and do not decide whether a defendant charged with being an exconvict in possession of a firearm can b......