State v. Sikes

• Decision Date: 17 May 1967
• Citation: 427 P.2d 756,247 Or. 249
• Parties: STATE of Oregon, Respondent, v. Gerald SIKES, Appellant.
• Court: Oregon Supreme Court

Page 756

427 P.2d 756

247 Or. 249

STATE of Oregon, Respondent, v. Gerald SIKES, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted May 4, 1967.

Decided May 17, 1967.

Richard W. Hill, Portland, argued the cause and filed a brief for appellant.

Jacob B. Tanzer, Deputy Dist. Atty., Portland, argued the cause for respondent. With him on the brief was George Van Hoomissen, Dist. Atty., Portland.

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

McALLISTER, Justice.

The defendant appeals from a 12-year penitentiary sentence imposed in Multnomah county after he was convicted by a jury of the crime of rape.

The defendant's first contention that the trial court erred in admitting evidence of a related crime is wholly without merit. The defendant forced the victim into his car, drove to a secluded spot and by violence and threats of violence forced her to perform oral sodomy on him. Thereafter, defendant fearing discovery because of the screams of his victim, drove to a more secluded spot where he forcibly raped the victim. At the place where the first episode occurred the police found on the following day the victim's purse, with its contents scattered about and a pay envelope addressed to defendant which had fallen from his car. The controlling rule is stated in State v. Weitzel, 157 Or. 334, 344, 69 P.2d 958, 963 (1937), as follows:

'* * * The law is well settled that, when several criminal acts are so connected with the defendant, with respect to time and locality, that they form an inseparable transaction, and a complete account of the offense charged in the indictment cannot be given without detailing the particulars of such other acts, evidence of the entire transaction is admissible, even though it may disclose the commission of another crime. State v. Bailey, 90 Or. 627, 178 P. 201; State v. Gillis, 154 Or. 232, 59 P. (2d) 679.'

In State v. Long, 195 Or. 81, 113, 244 P.2d 1033, 1047 (1952), we quoted with approval the following from Underhill's Criminal Evidence, (4th ed.) § 182:

'If several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them can not be given without showing the others, evidence of any or all of them is admissible against a defendant on trial for any offense which is itself a detail of the whole criminal scheme. * * *'

In the case at bar the defendant's attack on his victim was an 'indivisible criminal transaction' and the court did not err in admitting testimony concerning the entire transaction.

In his other assignment of error defendant complains because the court did not of its own motion examine a juror who was seen by defendant's counsel during a recess entering a converted...