State v. Weber

• Decision Date: 15 February 1967
• Citation: 423 P.2d 767,246 Or. 312
• Parties: STATE of Oregon, Respondent, v. Morell WEBER, Appellant.
• Court: Oregon Supreme Court

Page 767

423 P.2d 767

246 Or. 312

STATE of Oregon, Respondent, v. Morell WEBER, Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted Dec. 7, 1966.

Decided Feb. 15, 1967.

Charles O. Porter, Eugene, argued the cause for appellant. On the briefs were Porter & Bach, Eugene.

William G. Carter, Deputy Dist. Atty., Roseburg, argued the cause for respondent. With him on the brief was Avery W. Thompson, Dist. Atty., Roseburg.

Before McAllister, C.J., and PERRY, O'CONNELL, and REDDING, JJ.

REDDING, Justice pro tem.

The defendant, Morell Weber, having been convicted of the crime of assault being armed with a dangerous weapon and sentenced to the Oregon State Penitentiary for a period of three years, appeals from the judgment which followed. The criminal action arose out of an attempt by defendant to retrieve from a police officer of Sutherlin Oregon, an automobile belonging to his son.

The evidence shows that Officer Schwartz, a Sutherlin police officer, in an attempt to cite defendant's son for a traffic violation, pursued the red Chrysler automobile driven by him at speeds at times up to 115 miles per hour from downtown Sutherlin to a point approximately 5 miles east of the city, where the pursued car skidded into the ditch on the left side of the road and struck and sheared off a power pole. The driver ran from the scene, ignoring repeated commands to halt given by the officer, who pursued for quite some distance on foot without success in apprehending the fleeing driver. The defendant's son ran to the home of his parents, approximately a mile distant, where he advised his father, the defendant herein, of his experience.

Officer Schwartz returned to the stalled car and, being unable to find a registration certificate therein showing the ownership thereof and because of the driver's conduct and the absence of a certificate of ownership, suspected the car to have been stolen or to have been used in the commission of a crime and summoned a two truck intending to impound the car that a check might be made for fingerprints and for other evidence of its having been stolen or of its having been used in the commission of a crime. The automobile belonged to defendant's 22-year-old son, who was married, the father of a child, and not a member of defendant's household.

Shortly after the tow truck arrived, the defendant and his son drove up in defendant's automobile. Upon arriving at the scene, defendant immediately alighted from his car wearing a cartridge belt around his waist and holding a loaded Luger pistol in his hand. Officer Schwartz, during the entire incident, remained seated in his patrol car with the door closed and the left front window open. Officer Schwartz at first thought the defendant to be a deer hunter. The officer opened the conversation by saying 'Yes, sir, what can I do for you?' The defendant responded by ordering Officer Schwartz and the tow truck operator to leave the car where it was and further ordered both to leave the scene forthwith or he would shoot them both. The defendant continued to wave and point the loaded Luger pistol at Officer Schwartz from the time he arrived at the police car until the officer and the driver of the tow truck departed. Officer Schwartz said he could recall three times when he could 'look practically down the barrel.' The defendant was angry and acknowledged that he may have used profanity. The officer recalls a reference to police by defendant as 'car-stealing bastards.' Officer Schwartz was frightened and 'wanted to leave or stop the proceedings somehow.' He placed the patrol car in gear, drove forward to the tow truck and told the operator thereof to leave. The officer left immediately with the tow truck following.

Officer Schwartz returned approximately 20 minutes later accompanied by at least four additional officers. Almost immediately the defendant and his son drove up to the scene and stopped. Defendant was then carrying a loaded Luger pistol inserted in his belt on his left side. A loaded 30-30 Winchester rifle was resting in a perpendicular position between the defendant and his son, with the butt resting on the floor of defendant's automobile. Defendant was disarmed and he and his son were placed under arrest. Prior to the incident the defendant was not acquainted with Officer Schwartz, who had been on the Sutherlin police force for one month and 27 days at the time of the incident.

At the trial, defendant testified that the Sutherlin police had a reputation 'for turbulence and quarrelsomeness' and that there was a likelihood of their exceeding their authority and using violence.

Defendant testified that he would have been shot or at least clubbed by Officer Schwartz if he had not displayed the loaded gun when he made the request of Officer Schwartz that the car be left where it was. The defendant asserts two assignments of error. Defendant first assigns as error the trial court's failure to give the following instruction:

'Merely to be armed with a dangerous weapon is not a crime. Before you can find the defendant guilty of assault with a danagerous weapon you must find that he made an assault on Richard Schwartz with a pistol and that he did so unlawfully and With no justification. State v. Godfrey, 17 Or. 300 (20 P. 625)' (Emphasis supplied.)

The court's instructions fully and adequately covered all elements and aspects embodied in the requested instruction, save and except for the element of justification referred to therein. The question of justification is also raised by defendant in his second assignment of error and we will therefore cover the question raised by defendant in his first assignment of error in our disposition of defendant's second assignment of error.

Defendant in his second assignment of error contends that the court erred in giving the following instruction:

'In this case the matter of the theory of a defense of personal property as a self-defense, as a form of self-defense or justification, has been brought to your attention. I instruct you that, under the law of this state, it is a general rule of law that one may not use a dangerous weapon in the defense of his personal property. There are exceptions to this rule, I instruct you, therefore, that there are no such exceptions applicable in this case and, under the evidence presented in this case, the defendant may not invoke an exception to the general rule. In short, the theory of self-defense or justification is not available to him. Now, since this is the case, it is immaterial whether or not the alleged victim of the assault, Richard Schwartz, was or was not acting with lawful authority with respect to...