State v. Thompson

• Decision Date: 20 September 1961
• Citation: 364 P.2d 783,228 Or. 496
• Parties: STATE of Oregon, Respondent, v. Donald Martin THOMPSON, Appellant.
• Court: Oregon Supreme Court

Page 783

364 P.2d 783

228 Or. 496

STATE of Oregon, Respondent, v. Donald Martin THOMPSON, Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted July 6, 1961.

Decided Sept. 20, 1961.

Robert B. Duncan, Medford, and Leo Levenson, Portland, argued the cause for appellant. With them on the briefs were Duncan, Brophy, Wilson & Duhaime, Medford.

Thomas J. Owens, Deputy Dist. Atty., Medford, argued the cause for respondent. With him on the brief was Alan B. Holmes, Dist. Atty., Medford.

Before PERRY, P. J., and SLOAN, O'CONNELL, GOODWIN and LUSK, JJ.

SLOAN, Justice.

Defendant was convicted of armed robbery. He has appealed from the judgment of life imprisonment that followed. The troublesome assignment concerns the admission into evidence of a revolver found at the defendant's home when he was arrested. The problem revolver was a .22 caliber of the type customarily used for target and light sport shooting.

The robbery in question was committed at a supermarket in Medford on the evening of Labor Day, 1959. The act was accomplished in this way: A well dressed man, who shortly proved to be a robber, approached an assistant manager of the store and inquired about an item usually displayed for sale, none of which was then found on the shelf. The manager went to the stockroom to look for further supply. When he returned to his presumed customer the latter handed the manager a newspaper clipping which related the story of a robbery of a store. The manager evidenced a lack of interest and started to walk away. The man then told the manager that this was a robbery. The robber unbuttoned the front of a plaid jacket, he was described as wearing, and exhibited a revolver tucked into the front of his slacks. Only the handle and a small part of the metal portion of the gun was visible. The robber told the manager that there was an accomplice in the store, that he would use the gun if necessary and that harm would come to his wife--then home alone--if the manager did not do as directed.

As a result of these threats, and acting as directed, the manager went to the store office, opened the safe, removed all paper money of large denominations, put it in a sack and handed it to the robber. The latter warned the manager not to give an alarm for five minutes or the accomplice would harm him. By this ruse the robber was able to leave unmolested and unpursued.

At about 11:15 p. m. on November 8, 1959, a group of police officers came to defendant's home in Klamath Falls and arrested him for the described robbery. The home of defendant, although more expensive than most, was an ordinary home occupied by himself, wife and two children. We mention the character of the place of arrest to indicate that it was not, in any sense, a typical place of hide-out. Everything about the situation could have been substantially duplicated in many homes within the area. In a conversation with defendant which occurred immediately after the police officers gained entrance into the house, defendant was asked if he owned a gun. He replied that he owned only a shotgun. Later, one of the officers found the instant revolver on a shelf in a closet in defendant's bedroom. It was not concealed. Defendant was then taken to the police station at Klamath Falls where he was later identified by the manager as the robber. Indictment, trial and the verdict of guilty followed.

When the gun was offered in evidence the state did not claim that it was the gun used in the robbery. In fact, it was admitted that the revolver offered in evidence could not be identified as the robbery weapon. All that was asserted by the prosecuting attorney to justify the admission of the revolver was that the proffered exhibit was 'relevant.' In argument here it was claimed that it was admissible to show that defendant lied when he was asked, at the time of his arrest, if he owned a gun. It is also argued that it shows ability to commit the crime.

When the revolver was first offered in evidence the trial judge reserved ruling. Later he asked the police officer, who had identified the gun, if that officer had had the gun in his possession since the arrest. When the officer replied 'yes' the court admitted the exhibit. We think it was prejudicial error to have done so. We recognize that some courts have admitted a weapon not identified as the weapon by which a crime has been committed, found on the person of an accused or in his possession at the time of arrest. In each of those cases, however, there has been some evidence linking the weapon to the crime and to the defendant.

To sustain its position the state particularly relies on a federal case, Banning et al. v. United States, 6 Cir., 1942, 130 F.2d 330, and two cases decided by the California Court of Appeals, People v. Mar Gin Suie, 1909, 11 Cal.App. 42, 103 P. 951, and People v. Beltowski, 1945, 71 Cal.App.2d 18, 162 P.2d 59. Two recent California cases, one decided by the Supreme Court of California, People v. Riser, 1956, 47 Cal.2d 566, 305 P.2d 1, and People v. Nichols, 1959, 171 Cal.App.2d 320, 340 P.2d 727, partially sustain the state's position. In People v. Riser, supra, it was held that the particular weapon offered in evidence should not have been admitted, but held the error was not prejudicial. We do not believe the factual situations in any of the cases are sufficiently similar to the peculiar facts of this case to give support to the state's position.

In State v. Banks, 1934, 147 Or. 157, 32 P.2d 571, defendant was charged with murder. The murder was committed when Banks was resisting arrest. Prior to his anticipated arrest Banks had publicly announced he would kill anyone who attempted to arrest him. The actual killing was done with a rifle. However, the court held it proper to have admitted into evidence a revolver and shells found shortly after the fatal shooting in Banks' home, the scene of the shooting. It was said that this was evidence of Banks' intention to carry out his threats. The court cited a Montana case, State v. Harris, 1927, 66 Mont. 34, 213 P. 215. Harris was one of two...