Appeal from Circuit Court, Lane County. Edwin E. Allen, Judge. No. 72-0605.
J. Marvin Kuhn, 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.
Fort, Judge. Schwab, Chief Judge, and Langtry, Judge.
Defendant was indicted for the crime of burglary in the first degree. The indictment charged that he acting together in pursuance of a common intent with Stephen McCain knowingly and unlawfully on or about February 1, 1972, entered the dwelling of Florence Miller with the intent to commit theft. He was convicted by the unanimous verdict of a jury. He appeals, asserting a single assignment of error in the admission of certain evidence.
Cheryl Faust lived in January 1972 with Barbara Miller, a daughter-in-law of Florence Miller, the victim. Mrs. Faust knew Stephen McCain. Stephen McCain visited in the Barbara Miller home on January 27, 1972, a few days prior to the burglary. While he was there a casual remark was made in his immediate presence. Barbara Miller's little daughter told her mother that the child's grandmother -- i.e., Florence Miller -- had "got a bunch of paychecks." It was objected to as hearsay. The following then occurred:
"THE COURT: Is it offered as -- simply for the fact that those words were spoken?
"MR. SMITH: Your Honor, it is offered to show a co-defendant overheard a conversation that related to alleged money on the premises of the Florence Miller house that was burglarized.
"THE COURT: You are not offering that any statements made were true statements but only that they were the statements made?
"MR. SMITH: That is correct.
"MR. PHILLIPS: Additional ground of ...