Appeal from Circuit Court, Crook County. John M. Copenhaver, Judge. No. 9350.
John K. Hoover, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
John H. Clough, 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.
This appeal is from conviction of burglary in the second degree of a truck repair shop. ORS 164.215.*fn1 Defendant was indicted jointly with one Nolte.
The principal claimed error relates to receipt in evidence over defendant's objection of a padlock and a paper which had written upon it the results of a motor inspection done on the defendant's blue Datsun pickup by state police. Another assignment of error is that the evidence was insufficient to sustain the jury verdict.
Trial of defendant was had separately from that of Nolte. Evidence was: During the night hours of July 9-10, 1972 a truck repair shop immediately east of Prineville, Oregon was broken into by cutting the U-shaped clasp from the padlock on the building with
bolt cutters. Numerous tools, most of them in two metal boxes weighing 300 to 400 pounds, were stolen. During the same night a nearby dairy plant was also broken into and a padlock was cut away from a gasoline pump at the dairy. There were tire marks at the repair shop. A state policeman testified they matched wheel width and tire marks of defendant's pickup. Scrapings of red paint taken from the inside of the pickup cargo area were shown by crime laboratory tests to match that of some of the tools and a tool box. The stolen tools and tool boxes were recovered in Nolte's home in Prineville two days after the burglary. The padlock from the dairy plant gasoline pump was found behind the cab in defendant's pickup.
The checklist from the police inspection to which objection was made by defendant bore the name of defendant's brother, the inspection was dated several weeks earlier and was for defendant's pickup. It was crumpled up, consistent with having been sat upon in a vehicle seat, and was found under the gasoline pump at the dairy plant two days after the burglary. The defendant's objections to the padlock and paper were that they were irrelevant and prejudicial because they tended to connect defendant with another crime than that charged. Evidence was that bolt cutters were found in Nolte's house at the same place the stolen tools were found, and crime laboratory tests showed they were identical with the bolt cutters which cut the padlock from the repair shop but similar tests could not show what the instrument was that damaged the lock from the dairy plant.
When one of the police officers who investigated the burglaries had completed his direct testimony, he was cross-examined at length by defendant's counsel.
The last subject of cross-examination was outside the scope of direct ...