Appeal from Circuit Court, Klamath County. Donald A. W. Piper, Judge. No. 72-124-C.
Sam A. McKeen, Klamath Falls, argued the cause and filed the brief for appellant.
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.
Defendant was convicted by a jury of first degree burglary (ORS 164.225) and appeals the resulting sentence of $250 fine and two years' probation. Evidence was that two bicycles had been stolen, one from the garage of the Lehman house and one from the garage of the Jackson house in the same area (Moyina Heights) of Klamath Falls in August 1972. Defendant was indicted for the burglary from the Lehman residence. He was not charged with the other burglary.
Mr. Lehman and his son testified that they had witnessed someone riding the bicycle out of their driveway and gave chase to a vehicle from which they eventually recovered the bicycle. They identified the defendant as the driver of the vehicle, and his only companion as the person who had taken the bicycle.
In camera, Officer Osterholme testified that after Miranda warnings,*fn1 he had questioned defendant about the Lehman theft. Defendant in substance replied that he had stolen two bicycles that afternoon and did not know which theft the officer was talking about. Defendant then showed him where the second bicycle was concealed and pointed out the two houses from which the bicycles were taken. Prior to locating the second bicycle but after his initial statement to the officer, defendant had asked if he could phone his lawyer. The court, on motion of the defendant, ruled that all reference to defendant's activities after his request for a
lawyer would not be admitted for failure to comply with the Miranda rules.
Officer Osterholme then testified to the jury as to the statement made by defendant that he had stolen two bicycles that day. He also testified that he had recovered a bicycle and had taken it to a Mr. White who identified it as belonging to his son, Roy. Two members of the Jackson family testified that a bicycle belonging to Roy White had been kept in their garage. Mr. Jackson testified he was unaware the bicycle had been stolen until a state police officer had brought it to his house to be identified.
Defendant took the stand and testified that he had had no prior knowledge of the burglaries, which had actually been committed by two other people who were riding around with him in his vehicle. But he said he had participated in the attempt to conceal the bicycles from their owners. He denied knowing from which houses the bicycles had been taken.
On rebuttal Officer Osterholme was permitted to testify for impeachment purposes only that defendant had taken him to and had identified the two houses.
Defendant's assignments of error raise four issues. (1). Is an attached garage part of a dwelling so that burglary from a garage would be first degree burglary? (2). Must an indictment for burglary state the crime intended to be committed inside of the entered building? (3). Was the evidence of the second burglary admissible? (4). May evidence obtained in violation of ...