State v. Williams
Decision Date | 20 February 1974 |
Citation | 98 Adv.Sh. 601,517 P.2d 311,16 Or.App. 48 |
Parties | STATE of Oregon, Respondent, v. Dennis Ralph WILLIAMS, Appellant. |
Court | Oregon Court of Appeals |
Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Scott McAlister, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.
Before SCHWAB, C.J., and LANGTRY and FORT, JJ.
Defendant was convicted of the crimes of first degree burglary, ORS 164.225, and second degree robbery, ORS 164.405. He appeals.
Although separately tried, this case is a companion case to State v. Stoneberg, Or.App., 517 P.2d 333 (1973). The facts surrounding this matter are set out in that opinion, including this defendant's direct involvement therein. We will not repeat them here.
Defendant first challenges the admission into evidence of certain admissions made by him to an FBI agent who interrogated him in the jail at Seattle, Washington, several months after the crime here involved. No claim is made of any violation of defendant's Miranda rights nor that the admissions were the result of any fraud, duress or other allegedly improper police activity. The matters reported by the officer all related to the crimes charged here and the circumstances immediately surrounding their commission. The testimony was clearly admissible. The assignments of error relating thereto are without merit.
As in Stoneberg, defendant challenges the failure to submit certain lesser included offenses to the jury. ORS 136.660 states:
'In all cases, the defendant may be found guilty of any crime the commission of which is necessarily included in that with which he is charged in the indictment or of an attempt to commit such crime.'
In addition to the authorities cited and the discussion contained in State v. Stoneberg, supra, we point out that in applying ORS 136.660 to the present facts, we find helpful the interpretation given the very similar federal 'necessarily included' provision. Rule 31(c) of the Federal Rules of Criminal Procedure. 1
In Sansone v. United States, 380 U.S. 343, 351, 85 S.Ct. 1004, 1010, 13 L.Ed.2d 882 (1965), the court said that a lesser offense charge is proper only where '* * * on the facts of a given case there are disputed issues of fact which would enable the jury rationally to find that, although all the elements of * * * (the greater offense) have not been proved, all the elements of * * * (such lesser offense have been proved).'
It is stated in Driscoll v. United States, 356 F.2d 324, 327--328 (1st Cir. 1966), vacated on other grounds, 390 U.S. 202, 88 S.Ct. 899, 19 L.Ed.2d 1034 (1968):
(Emphasis supplied.)
In Driscoll, the government presented direct evidence of the greater offense through three witnesses. The court stated:
'* * * The record before us discloses no efforts to impeach, contradict, or explain this testimony. All we have are the pleas of not guilty.
See, United States v. Comer, 137 U.S.App.D.C. 214, 421 F.2d 1149, 1153--1154 (D.C.Cir. 1970), quoting the foregoing at length.
We conclude that here, as we held in Stoneberg, there were no disputed issues of fact warranting the submission of the requested lesser-included offenses to the jury.
In accord are our recent decisions in State v. Stoneberg, supra; State v. Atkins, Or.App., 97 Adv.Sh. 1626, 1627, 513 P.2d 1191 (1973). See also, State v. Boucher, Or.App., 97 Adv.Sh. 206, 209, 509 P.2d 1228 (1973); Annotation, What Constitutes Lesser Offenses 'Necessarily Included' in Offense Charged, Under Rule 31(c) of Federal Rules of Criminal Procedure, 11 A.L.R.Fed. 173 (1972); Annotation, 58 A.L.R.2d 808 (1958); People v. Mussenden, 308 N.Y. 558, 127 N.E.2d 551 (1955).
The assignments relating to the failure to submit certain lesser-included offenses are without merit.
Finally, defendant asserts the court erred in not vacating the robbery conviction on the...
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State v. Williams
...of burglary in the first degree and robbery in the second degree. The conviction was affirmed by the Court of Appeals, 16 Or.App. 48, 517 P.2d 311 (1973). We granted review to consider the question of whether the trial court must instruct the jury on all lesser included offenses whenever re......
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State v. Harris
...v. Boyd, 15 Or.App. 650, 517 P.2d 321 (1973), Rev. den. (1974); State v. Reed, 15 Or.App. 593, 517 P.2d 318 (1973); State v. Williams, 16 Or.App. 48, 517 P.2d 311 (1973), Rev. den. (1974); State v. Gill, 24 Or.App. 863, 547 P.2d 166, Rev. den. (1976); State v. Allen, supra; State v. Classen......
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State v. Bobkiewicz
...charging instrument. State v. Williams, 99 Or.Adv.Sh.1934, 526 P.2d 1384 (1974), and Oregon cases cited therein (Affirming State v. Williams, 16 Or.App. 48, 517 P.2d 311 (1973)); State v. Stoneberg, 15 Or.App. 601, 517 P.2d 333 (1973); State v. Atkins, 269 Or. 481, 525 P.2d 1018 (1974); Sta......
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State v. Williams
...1:00 and 2:00 a.m. the three of them went to a house in Eugene, committed that robbery and were apprehended. See State v. Williams, Or.App., 98 Adv.Sh. 601, 517 P.2d 311 (1973); State v. Stoneberg, Or.App., 98 Adv.Sh. 369, 517 P.2d 333 A victim of the subsequent robbery described it in some......