459 P.2d 555 | Or. Ct. App. | 1969
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *70 AFFIRMED. Defendant was charged in one indictment with (1) facilitating an escape from official detention, and (2) assault with a dangerous weapon, and in a second indictment with (3) being an ex-convict in possession of a firearm. A consolidated jury trial resulted in convictions on all charges.
One Kessler had been a prisoner in the Multnomah County Jail, and, while an inmate, was transferred to the Multnomah County Hospital for treatment of an illness. The defendant entered Kessler's hospital room, and, using a revolver, relieved the deputy sheriff guarding Kessler of his weapon and his prisoner. The defendant and Kessler then left the hospital. On the following day the defendant and Kessler were located and apprehended by Portland detectives in an *71 apartment in which two other people were also living. At that time, neither Kessler nor the defendant had arms on his person. However, two guns, one of which was loaded, were found on the premises.
In considering the assignments of error we borrow in part from the brief filed by the state.
*72"The term 'business,' as used in ORS
41.690 , shall include every kind of business, profession, occupation, calling or operating of institutions, whether carried on for profit or not."
An adequate foundation was laid for the court's admission of the document as a business record under ORS
"A record of an act, condition or event, shall, in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission."
The prison record card was properly received as a business record.
The evidence was relevant to all three charges.
This assignment is controlled by State v. Hancock,
(1) Facilitation of an escape was not proved because it was not shown that Kessler was in custody;
(2) The charge that defendant was an ex-convict in possession of a firearm was not proved because defendant's possession of a weapon was not shown; and
(3) Assault with a dangerous weapon was not proved because the gun was not shown to have been workable.
None of these propositions has merit.
Kessler was shown to have been in custody by the municipal court commitment order, by the Multnomah County Jail prison record card relating to Kessler and indicating his transfer to the hospital, and by the testimony of the deputy sheriff who was guarding him at the hospital. *74
We have already pointed out the substantial evidence of defendant's possession of a firearm under Assignment of Error No. 2.
As previously pointed out, the gun defendant used was found the next evening under the cushion of a couch some 10 or 15 feet from the place where defendant was arrested. It was loaded when found. The evidence was more than ample to allow an inference that the gun was loaded and workable at the time of the defendant's assault upon Kessler's guard.
In State v. Noblin,
"* * * Where an assault is accomplished by the pointing of a gun in a threatening manner and within the obvious range of the gun, the victim and the jury are justified in inferring that the gun is loaded."
See also State v. Hedrick,
The motion was properly denied.
"Voluntary consumption of drugs is not an excuse for a crime. No act of a defendant in a voluntary drugged state is less criminal because of his condition if it merely makes him do things he would not do otherwise.
"You may consider consumption of drugs in determining the purpose, motive or intent with which the defendant may have acted, but a voluntary drugged state is not a defense if it does not interfere with the defendant's ability to form the intent to commit the crime. To be available as a defense a voluntary drugged state must result in a diseased mind, or some other form of insanity. The burden is on the defendant to prove that defense by a preponderance of the evidence."
Defendant's challenge of the voluntary intoxication instruction as modified to apply to drugs apparently is based on the following psuedo-syllogism:
(1) The Drug Advisory Council has not lawfully designated lysergic acid diethylamide (LSD) as a dangerous drug; *76
(2) Therefore, LSD is merely a chemical and not a drug;
(3) Therefore, an instruction regarding drugs instead of chemicals was improper; and
(4) Therefore, a criminal act committed under the effect of LSD is excusable as due to insanity.
The instruction was entirely proper. It is a modification of ORS
"No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his having been in such condition; but whenever the actual existence of any particular motive, purpose or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the defendant was intoxicated at the time, in determining the purpose, motive or intent with which he committed the act."
Although usually applied to cases involving intoxication from alcohol, the statute is not restricted in application. It refers to "intoxication" which means intoxication from the use of alcohol, drugs or any other toxic substance.
Oregon has not previously had occasion to apply the statute to drug usage, State v. Abel,
We know of no reason which requires us to limit the scope of the word "intoxication" as used in ORS
No meritorious error having been assigned, the judgment is affirmed.