On Review from the Court of Appeals.
Tyler Marshall, Portland, argued the cause for petitioner. On the briefs were Tamblyn, Bouneff, McLennan, Muller, Marshall & Hawkes.
Al J. Laue, Assistant Attorney General, Salem, argued the cause for respondent. With him on the briefs were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General.
Petitioner was convicted as an accessory after the fact to two murders and a kidnapping committed by one Douglas Wright. The Court of Appeals affirmed and we granted review to determine whether the evidence was sufficient to support the verdict of guilty. We conclude that it was not and reverse.
Either late on September 1, 1969, or early on September 2, Douglas Wright killed Gail Snelling and her mother Margaret Rosenberry in their Portland home. He then left the house, taking Mrs. Snelling's five-year-old son Matt Kaarhus with him. During the night of September 3 Wright and another man came to petitioner's home and talked to petitioner, who testified that the two men wanted to buy his car, which he declined to sell.
On the afternoon of September 4 the bodies of the two women were discovered and a search for the boy was begun. According to petitioner he first learned about the murders on the evening of September 4 from a television news program. On September 5 two police detectives came to petitioner's home to search his house
and to arrest petitioner on another charge. Petitioner was cooperative about the search and arrest. One of the detectives asked him if he had seen Wright and the boy. Petitioner replied either that he had not seen them or that he had not seen Wright for a long time. The Court of Appeals held that petitioner's lie to the police when they asked him if he had seen Wright was an act of aiding sufficient for conviction under ORS 161.230.*fn1
The statute under which petitioner was convicted provided:
"All persons are accessories who, after the commission of any felony, conceal or aid the offender, with knowledge that he has committed a felony, and with intent that he may avoid or escape from arrest, trial, conviction or punishment." ORS 161.230, now repealed, OL 1971, ch 743, § 432.
The above statute codified the common-law offense of being an accessory after the fact, which Blackstone describes as follows:
"An accessary after the fact may be, where a person, knowing a felony to have been committed, receives, relieves, comforts, or assists the felon. Therefore to make an accessary ex post facto, it is in the first place requisite that he knows of the felony committed. In the next place, he must receive, relieve, comfort, or assist him. And, generally, any assistance whatever given to a felon, ...