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Oregon v. Fitzgerald

January 12, 1973

STATE OF OREGON, RESPONDENT,
v.
JEFFREY EDWARD FITZGERALD, APPELLANT



Appeal from Circuit Court, Yamhill County. Kurt C. Rossman, Judge. No. 28806.

John K. Hoover, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.

Langtry, Judge. Schwab, Chief Judge, and Thornton, Judge.

Langtry

Defendant appeals from conviction of firstdegree burglary. ORS 164.225. He asserts error in two respects: (1) that the testimony of an accomplice charged with him which directly implicated him in the crime was not sufficiently corroborated; and (2) that testimony concerning an escape and attempts to escape from confinement pending trial should not have been received over his objection.

The accomplice testified that the burglary occurred on February 21, 1972 with the defendant, the accomplice and one other person joining in "kicking in" the door of a residence and stealing numerous items

therefrom. The accomplice's testimony was that the stolen property was put in a trailer house which was taken to one Witt's place where several rounds of ammunition were fired from rifles which were among the stolen property. The trailer was later moved to another location. One Van Ronk and Witt, neither of whom were accomplices in the burglary, testified to events which occurred while the trailer was at Witt's place, and that defendant was present during such events. They testified about firing of the rifles, the giving of one of them to Witt, and a statement by one of the others of the three burglars that they had "kicked in" a door when they obtained the property, at which time defendant remained silent.

The two independent witnesses testified that this defendant was present at each movement of the property which was independently identified as having been stolen in the burglary, and that the defendant appeared to be exercising control over the stolen property.

(1) The evidence, viewed as a whole, sufficiently "tends" to corroborate the testimony of the accomplice which directly involved the defendant in the commission of the crime. ORS 136.550.

"* * * Before independent evidence of defendant's association with an admitted accomplice will furnish the corroboration necessary, it must appear that the defendant and the accomplice were together at a place and under circumstances not likely to have occurred unless there was criminal concert between them * * *." State v. Carroll, 251 Or 197, 200, 444 P2d 1006 (1968).

See also State v. Cain, 231 Or 616, 373 P2d 1004 (1962).

(2). The evidence of escape and attempts to escape was objected to ...


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