Appeal from Circuit Court, Douglas County. Charles S. Woodrich, Judge. Nos. 37465 and 37466.
Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for appellant. With him on the briefs was Gary D. Babcock, Public Defender, Salem.
Doyle L. Schiffman, District Attorney, Roseburg, argued the cause and filed the brief for respondent.
Fort, Judge. Schwab, Chief Judge, specially concurring. Foley, Judge, joins in this concurring opinion.
Defendant was separately indicted and jointly tried and convicted on two charges of first degree murder. Former ORS 163.010 (1). He appeals. Prior to this trial he was indicted, tried and convicted of first degree murder arising out of a killing occurring at approximately the same time and place. His conviction thereon was affirmed by this court in State v. Rook, 10 Or App 367, 499 P2d 830, Sup Ct review denied (1972).
"In this case defendant was separately charged
and convicted of the first degree murder of one Sharon Williams. The evidence was that defendant and a companion, who were fugitives from a jail-break, murdered Sharon Williams and her parents in their home in a remote area of Douglas County while committing an armed robbery. Other charges against defendant and his accomplice were in separate indictments. The murders were brutal and the evidence of defendant's guilt was overwhelming." 10 Or App at 368.
The two indictments here involved charged the defendant with the murders of Mabel Williams and Edward Lyman Williams, the parents of Sharon Williams, referred to in the above quotation.
In this appeal, however, the principal contention urged is the denial of defendant's motion for judgment of acquittal based upon his plea of former jeopardy. Reliance is placed primarily upon State v. Brown, 262 Or 442, 497 P2d 1191 (1972), which was decided after the defendant was convicted and sentenced upon the charge of killing Sharon Williams. Although our Supreme Court in State v. Fair, 263 Or 383, 502 P2d 1150 (1972), held that State v. Brown, supra, was not to be applied retroactively, defendant contends that Fair was in effect overruled by Robinson v. Neil, 409 U.S. 505, 93 S Ct 876, 35 L Ed 2d 29 (1973), which holds that Waller v. Florida, 397 U.S. 387, 90 S Ct 1184, 25 L Ed 2d 435 (1970), is fully retroactive. Waller barred on the ground of double jeopardy two prosecutions, state and municipal, based upon the same act or offense. See also: Ashe v. Swenson, 397 U.S. 436, 90 S Ct 1189, 25 L Ed 2d 469 (1970).
Defendant now contends that in State v. Brown, supra, the court abandoned the historic "same evidence"
test as the standard for determining when the double jeopardy clause applies. There the court said:
"* * * We hold, therefore, that under Article I, Section 12, of our constitution, a second prosecution is for the 'same offense' and is prohibited if (1) the charges arise out of the same act or transaction, and (2) the charges could have been tried in the same court, and (3) the prosecutor knew or reasonably should have known of the facts relevant to the second charge at the time of the original prosecution." 262 Or at 457-58.
Defendant contends first that the two murders for which he was here convicted arose "out of the same act or transaction" within the meaning of Brown as did the murder of Sharon Williams for which he was first tried and convicted.
He then urges that it follows from Robinson v. Neil, supra, that since the double jeopardy provision (Oregon Constitution, Art I, § 12) now applies retroactively under the Fifth Amendment, his plea of double jeopardy should here have been allowed and that these convictions must be vacated. For reasons hereinafter stated we need not decide that question.
In State v. Gratz, 254 Or 474, 461 P2d 829 (1969), the Supreme Court considered whether a person could be charged in separate counts in one indictment for the armed robbery of two separate persons committed at the same time and ...