*1 494
Argued 27, 1971, petition October affirmed December rehearing by opinion 23, petition denied March allowed June review v. RICHARD Respondent, STATE OREGON, OF CLIFFORD, Appellant. SHELDON
Al J. Assistant General, Salem, argued respondent. him on cause With Attorney brief were Lee Johnson, General, John W. Osburn, General, Solicitor Salem. Judge, Langtry
Before Chief Schwab, Judges. Port,
SCHWAB, J. C. Defendant was convicted after trial of accessory being three after the fact, counts an OPS Taking Away the crime of two murders and 161.230, all committed Parent, with Intent to Detain from Child assignment by Douglas Wright. The sole of error one trial that merits discussion is that the court erred judgment failing grant motions defendant’s acquittal case and at end of the state’s at end of all the evidence.
It was not at late disputed trial September 1, early 1969, Douglas Wright killed one Gail and her Snelling mother, Margaret in the home. Nor was it Bosenberry, Snelling disputed that after these two took murders, Douglas Wright Gail son a former Snelling’s five-year-old marriage with him when he left Snelling home. Whether present after anything 1969, that him would make the fact to these crimes was at hotly trial. disputed under
The statute which defendant was charged provides:
“All are accessories persons who, after commission conceal or aid of- any felony, fender, with that he has knowledge committed with intent felony, and that he avoid or may escape from arrest, trial, conviction punishment.” OBS 161.230.
In order convicted under be this statute the defend- specific act, ant must have done a that “conceal or is, elements, mental with aid,” two separate is, (1) “knowledge has [the committed aided] felony,” and “intent (2) person] may [such [avoid of his No issue consequences has been crime].” raised on as to whether state appeal presented on the two mental adequate elements for these to be submitted to the questions sole question evidence, whether viewed fa- light most state, vorable to the the jury whether the issue of defendant any specific concealing aiding Wright. there argues The state was evidence that defend- or aided in that: Wright ant concealed (1) there were and Wright; between defend- meetings (2) attempted ant (3) intimidate a witness; de- fendant searching Wright. lied to officers Wright completed As noted above, had the three principal early morning Sep- crimes hours of testimony tember 1969. There is from which the jury could have found that defendant had three meet- ings Wright in the weeks that followed. One was evening Wright, 2 or when Jerry Eapue played pool one talked and with defend- evening ant in a tavern. Another was the Wright Jerry Eapue 2, 3 or when visited de- meeting fendant at his home. The final occurred in early Trippett October when defendant traveled to the Wright staying. residence where was then None the witnesses for the state testified as transpired meetings. to what at these In its brief the argues: state here
* * It is understandable that there is no direct what was discussed at these * * * meetings, reasonably but in- meetings fer that these aided to some degree.” disagree. For to reach such We a conclusion speculation, would have been sheer not a reasonable any inference from evidence in the case. concerning possible
The state’s evidence intimi developed through dation of a witness the testi living mony Willems, who was of Dee with defendant many months both before and after the events of Although testimony September 1969. her was confused *4 contradictory, frequently jury from it the and could point that at some defendant found have threatened battery acid in her face if she ever to throw testified '498
against Wright, general him or both, and made statements the to effect that informers deserve to die. problem we have with this evidence is that it never was established when these threats were made. appearances they From all in the were made record, assuming Even before 1969. that threats potential “aiding” to a witness made would be under would to 161.230, OES such threats have have been the the crime. made commission of no evidence in this ease. There was such brings what as This us we view the central appeal. question presented in There this was evidence jury ques found that when which the have from police detectives 5, 1969, two tioned recently if was asked he had seen the defendant negative, Wright, in the de answered reply Does lie was not truthful. defendant’s fendant’s jury the on the constitute lie an of whether meaning aiding” “concealing within the 161.230? of OES P2d Rosser, 293, 345, 162 Or State
In
Oregon Supreme
(1939),
499 concerning evidence defendant’s lie was to sufficient go jury. supported by to This result Common (1939), Wood, wealth 19 v. 302 Mass NE2d 320 People Duty, App2d Rptr 269 Cal 74 Cal (1969). interpretation Both cases of ac involved cessory virtually statutes identical to OBS 161.230. police Both cases hold that an affirmative lie to the investigators may or other violate stat provided police ute it is found to have frustrated the investigation proviso of the crime. The concerning makes the rule a falsehood con situation accessory-after-the-faet sistent other situations in which recognized very early
“It was even in the law tendency comfort which had no assistance justice to frustrate the due course of was not in- (2d 1969). cluded.” Criminal Law ed Perkins, police lie to the Whether defendant’s frustrated their investigation by Wright of the crimes committed was question fact for the
Affirmed. specially concurring. J.,
FOBT, majority points out: “* * * question The sole is whether the evi- light viewed in the most dence, favorable to the sufficient state, was the issue any specific whether defendant act that concealing aiding Wright.” point I since the concur On shows more passive agree nondisclosure this than defendant. I find he told the affirma- he knew at the time falsehood, tive which lie, recently concerning Wright. he had whether seen I do Since that was sole presented, find it decide not whether necessary here conclusion support knew that had committed Wright any requires, now alone either felony, as 161.230 let a child with away or the taking the two murders of which to detain from its parent convicted. ultimately *6 I in the result. concur
Accordingly, FOR REHEARING ON PETITION repeals Oregon ch ORS 161.030. Sec § Laws Hindering prosecution, replaces chapter, entitled tion 207 of commentary Proposed Oregon accompanying § it. The points out: Code Criminal * ** required accessory common law guilty that an The knowledge person aided com- the fact have This rule has been eliminated the crime. modern mitted specifically aiding legislation concerned offenders requirement of intent hinder law en- avoid arrest. unnecessary requirement further makes forcement knowledge. Knowledge aided has committed simply to aid offender a crime justice.” escape Tyler Tamblyn, Bouneff, McLennan, Marshall, petition. Marshall & Muller, Hawkes, Portland, Attorney General, Lee Osburn, John W. Johnson, Attorney Solicitor and Al Assistant General, Laue, J. respondent. General, Salem, Judge, Langtry
Before Schwab, Chief Judges. Port,
SCHWAB, C.J. original opinion In our in this case the main question we considered was whether evidence that de- police investigating fendant lied to crimes committed by Douglas Wright was sufficient to create a as to whether defendant after the fact in that he had aided or concealed meaning within the 161.230. We held that investigation evidence of a lie which frustrates crime was sufficient to take such a ease *7 to the rehearing petition for
On contends holding, applied requires when our to this record, re- is no evidence versal because there from which the found that the degree could have lie did in some hindering Wright by apprehension. his aid of the consideration briefs Our submitted on rehearing petition leads us the conclusion incorrectly construed ORS that we 161.230 in so far necessary held that element of as we the crime is (here lie) “frustrate” that the investi- gation. as is not precise statutory language
While been, it reasonable we not do believe as it have might the state (1) it prove as requiring interpret not hap done had an act would have what the police those results of the theoretical what (2) pened, would have been. theoretical activities interpre reasonable contrary, only On is that proof statute as to tation of the of an lie), coupled proof act (here of an overt to con aid or conceal) unlawful (to stitute the crime. › if hands a wanted Surely of flight ticket the purpose murderer an airline are even both aiding complete though the crime of is un five minutes later and the ticket apprehended used. People here is consistent with that in holding
Our Duty, Rptr 269 Cal Cal App2d (1969), facts that we the closest case on the have which is discovered. rehearing
Petition for denied. ‹ ORS 161.230 superseded by Oregon has ORS 162.325. been pp 1971, ch section 1932-33. Laws original opinion pointed ©As we out our the defendant evidence of concedes that there was unlawful intent.