State v. GibsonState v. Gibson
- Reporters:
- , ,
- Before:
- Goodwin
Defendant was convicted of robbery by force and violence, not being armed with a dangerous weapon, and appeals.
The facts material to the appeal are these:
Monte Gibson and Larry Wright were drinking in a Burns establishment called the Central Pastime. When a third man, Juan Landa, left the tavern, Gibson and Wright followed him outside and attacked him. Both were charged with beating,
The first question is whether the trial court erred in the manner in which it gave the statutory instruction on the testimony of an accomplice. ①
Since a part of the state’s evidence against Gibson had been supplied by the testimony of Wright, the court was required to instruct that the testimony of an accomplice was to be viewed with distrust. After giving the instruction in the words of the statute, the court then added, “and as a matter of law, I instruct you in this case that Larry Wright is an accomplice of the defendant Monte Gibson.”
The defendant interprets the addendum to the instruction as an instruction to the jury that if they believed that Wright was guilty of the robbery then they must also find the defendant guilty. The jury knew that Wright had been tried for the same crime, as the matter had been brought out in his examination.
Gibson concedes for the purpose of argument that he was guilty of the crime of assault and battery, and that he and Wright were accomplices in the commission of the lesser offense. He insists that it was prejudicial to suggest that he and Wright were accomplices in the commission of the robbery.
The question, therefore, is whether the court’s telling the jury that the two defendants were accomplices as a matter of law amounted to a directed verdict for the state on the issue of guilt. Such an explicit instruction would be erroneous in a criminal trial, no matter how overwhelming the evidence of guilt might be. See State v. Daley, 54 Or 514, 103 P 502, 104 P 1 (1909).
We do not believe that the instruction given, when considered in the context in Avhich it was given, amounted to a directed verdict for the state. The court was explaining to the jury that the testimony of an accomplice is to be viewed with distrust. Apparently in the belief that it would be favorable to the defendant to point out the obvious, the court then remoAred any doubt about the applicability of the instruction by telling the jury that Larry Wright was an accomplice.
While Wright had denied either beating or robbing the victim, the victim had testified that Wright had struck the first blow and had taken his wallet. Since the jury knew that Wright had been tried for the crime, the jury knew that a crime in fact had been committed, and that Wright was at least an accomplice. It does not follow, however, that in the trial of this particular case the defendant Gibson was prejudiced by the instruction. We hold that the instruction, as given, was erroneous, but that the error was harmless. See State v. Dugger, 161 Or 355, 364, 88 P2d 990 (1939).
Another assignment challenges an instruction which told the jury that one codefendant would be legally responsible for “any other crime committed in pursuance of the intended crime and which, under the circumstances, is a natural and probable consequence of the intended crime.” The vice in this somewhat opaque instruction is alleged to lie in its tendency to suggest to the jury that robbery is a
While we agree with the defendant’s proposition that robbery is not a natural and probable result of every assault and battery, the instruction did not tell the jury that it was. Accordingly, the instruction, whatever its other faults may have been, was not so misleading as to constitute reversible error.
A final assignment of error asserts that the motion for a directed verdict of acquittal should have been allowed. The motion was based upon the defendant’s theory that the episode must be treated as two separate and unrelated crimes: (1) an assault and battery in which the defendant Gibson admitted his participation, and (2) a robbery in which there was no evidence of Gibson’s participation other than Wright’s uncorroborated testimony that it was Gibson who took the money. This argument ignores a substantial volume of evidence that the whole affair was a single transaction, with both defendants participating in the despoliation of the victim.
Assuming that there was error in the instructions given, the error could not have resulted in prejudice. Pursuant to OES 138.230 and Oregon Constitution, Art VII, §3 (Amended), the judgment is one that must be affirmed despite the errors.
Affirmed.
Notes
“(4) That the testimony of an accomplice ought to be viewed with distrust, and the oral admissions of a party with caution. * * s¡¡ S;»