Appeal from Circuit Court, Yamhill County. Kurt C. Rossman, Judge. No. 29103.
John K. Hoover, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Scott McAlister, 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, Presiding Judge, and Foley and Fort, Judges.
Defendant appeals from conviction of second degree burglary. ORS 164.215.*fn1 He contends the trial court erred in refusing to give a requested instruction to the jury on second degree criminal trespass, ORS 164.245,*fn2 as a lesser included offense.
Cogent reasons support a belief that criminal trespass is to be considered a lesser included offense to burglary under the Oregon Criminal Code of 1971. Prior to that code, trespass was not a lesser included offense to a charge of burglary. State v. Haynes, 239 Or 132, 134, 396 P2d 694 (1964). We find it unnecessary to decide the question in this case in view of our ultimate determination of the second question presented; however, our above observation is based upon the language of the present statutes as well as the Commentary contained in the Proposed Oregon Criminal Code,
Final Draft and Report 146, 147, § 140 (July 1970) of the Criminal Law Revision Commission.
The second question is whether, assuming that second degree criminal trespass (ORS 164.245) is a lesser included offense to second degree burglary, the court erred in refusing to give the requested instruction, as it would be required to do upon request. See State v. Boucher, 13 Or App 339, 343, 509 P2d 1228 (1973).
The key question really is whether the evidence would support a conviction on the lesser included offense. The state's evidence supported the inference that about 750 pounds of copper wire had been stolen from the warehouse of the City Water and Light Department in McMinnville sometime between quitting time on September 21 and 7:30 a.m. on September 22, 1972. Overwhelming direct and circumstantial evidence produced by the state pointed to the defendant as one of two thieves seen taking the wire during that night.
Defendant was arrested the same night by a police officer in Newberg, several miles distant from McMinnville. The officer smelled liquor on defendant's breath but did not arrest him on a driving-under-the-influence-of-liquor charge because he judged from defendant's speech and mannerisms that he was not intoxicated. The officer saw wire piled on the back seat of the car defendant was driving. Evidence showed this car answered the detailed description of the burglary car described by the witness to the burglary. Defendant said that the wire was his, showed the officer that the trunk was also full of wire, said that the wire had been given to him by a former employer and that it had been in the car for a week. The officer was suspicious because
defendant's boots were muddy. The officer arrested defendant for driving without a license (which he did not have) and the car was impounded. The next day employes of the McMinnville City Water and Light Department identified the ...