Appeal from Circuit Court, Benton County. Courtney R. Johns, Judge. No. 26574.
Robert C. Cannon, 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 Foley, Judge.
Defendant appeals from conviction of first-degree theft. ORS 164.055.
He contends that (1) the indictment did not state a crime, (2) the evidence did not support the verdict in that there was not corroboration of accomplice testimony, and (3) the indictment is void because it fails to apprise the defendant of the nature of the charge alleged.
The pertinent part of the indictment is:
"The Said RICHARD ALLAN [sic] BROWN on the 14th day of January, 1972, in the County of Benton and State of Oregon, then and there being, and acting together in pursuance of a common intent with Gary Lynn Fuller, did then and there knowingly, unlawfully and feloniously commit theft of a General Motors four-speed automobile transmission, the property of Danny Walker; a brown tool chest containing tools, the property of Harley Long; and a seven inch 'Skill' [sic] electrical sander, the property of Ortha Orr, of the total value of more than Two Hundred Dollars * * *."
The substance of contentions (1) and (3) is considered in our opinion in State v. Jim/White, 13 Or App 201, 508 P2d 462, Sup Ct review denied (1973), wherein we
have upheld indictments for theft under the 1971 criminal code revision, if couched in terms similar to the terms of the indictment in this case. One point made under the first contention was not specifically considered in Jim/White. That point is that the evidence at bar was that two of the three items alleged to have been stolen were taken in December 1971, which was before the effective date of the new criminal code, namely, January 1, 1972. Therefore, defendant contends he could not be convicted of the taking under the new code.
Evidence also was received from which it could be inferred that defendant was apprehended immediately after he and his accomplice sought to dispose of all three stolen items on January 14, 1972. We held in Jim/White that proof of any of the definitions of theft under ORS 164.015 is proof of the one crime, theft. ORS 164.015 (5) thus defines "theft" as taking, ...