State v. Woolard , 2 Or. App. 446 ( 1970 )

467 P.2d 652 (1970)

STATE of Oregon, Respondent,
v.
Mildred Jean WOOLARD, Appellant.

Court of Appeals of Oregon, Department 2.

Argued and Submitted March 19, 1970. Decided April 9, 1970.

Ken C. Hadley, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Solicitor Gen., Salem.

Before SCHWAB, C.J., and LANGTRY and FOLEY, JJ.

LANGTRY, Judge.

This is an appeal from conviction of larceny of a ring under ORS 164.310.

Mr. Reingold and his son testified that defendant and a female companion visited Reingold's Jewelers in Portland on September 6, 1967, and tried on some rings. The owner discovered that a ring valued at $250 was missing and the police were called, but no arrest was made because he had not seen the ring taken. On the next day, testimony showed, defendant and a different companion, Beverly Jean McLeod, tried on several rings at another jewelry store in the same neighborhood. Together they chose a ring and the defendant left, saying she must check her parking meter. Miss McLeod left shortly thereafter to get money for a deposit on the ring, and a few moments later the ring, valued at $550, was discovered to be missing. Defendant was charged with theft in the second incident. Evidence of the first incident was received, over objection.

Defendant assigns as error: (1) the court erred in allowing evidence of an unrelated crime to go before the jury, and (2) the court erred in instructing the jury that ten of their number was sufficient for conviction. The latter assignment was decided adversely to defendant's contention in State v. Gann, 89 Or.Adv.Sh. 853, 463 P.2d 570 (1969).

(1). Defendant admitted she was in Reingold's but denied she was with any companion on that occasion. She denied she was in the second store at all on the next day. She argues that evidence of her connection with the first alleged crime was irrelevant and prejudicial. She contends, relying on State v. Cruse, 231 Or. 326, 372 P.2d 974 (1962), where Cruse was charged with obtaining money under false pretenses by passing a worthless check, the evidence of similar crimes by the defendant may be received only as evidence of criminal intent in the crime charged. Testimony in Cruse included cross-examination about passing checks other than the one for which defendant was charged. The testimony was held proper because it related to matters about which defendant had testified on direct examination. The court also said:

"* * * This court has uniformly held in cases involving * * * obtaining money by * * * fraudulent means that evidence of other similar transactions is admissible to prove criminal intent * * * [citing cases]." 231 Or. at 333, 372 P.2d at 978.

This statement does not mean that receiving evidence of other crimes for such a purpose is the only exception to the general rule against receiving evidence of other crimes. See State v. Moore, Or. App., 89 Adv.Sh. 605, 460 P.2d 866 (1969).

"It is fundamental that the state is entitled to the benefit of any evidence which is relevant to the issue, even though it concerns the commission of collateral crimes. If evidence of a collateral crime tends to prove the commission of the crime charged in the indictment, the general rule of exclusion has no application." State v. Long, 195 Or. 81, 112, 244 P.2d 1033, 1047 (1952).

"* * * The question is whether the collateral crimes tend to show motive, design or purpose for the crime charged * * *." Id. at 116, 244 P.2d at 1048.

A more complete catalogue of the exceptions to the rule against admitting evidence of other crimes is found in State v. Little, 87 Ariz. 295, 350 P.2d 756, 86 A.L.R. 2d 1120 (1960), quoting from Dorsey v. State, 25 Ariz. 139-144, 213 P. 1011 (1923):

"``To this general rule, however, there are certain well-recognized exceptions, in which evidence of other crimes is competent to prove the specific crime charged. This is true when it tends to establish: (1) Motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes, so related to each other that the proof of one tends to establish the others; (5) the identity of the person charged with the commission of the crime on trial.'" 87 Ariz. at 303, 350 P.2d at 761.

The evidence received in the case at bar was proper under the fourth and fifth exceptions. State v. Howell, 237 Or. 382, 386-387, 388 P.2d 282 (1964); State v. La Rose, 54 Or. 555, 558-559, 104 P. 299 (1909); State v. O'Donnell, 36 Or. 222, 224-226, 61 P. 892 (1900).

There was no error in admitting evidence of the first incident, even though the details of what occurred were disputed by the defendant. The determination of the facts and the inferences to be drawn therefrom were for the jury under proper instructions, which were given.

Affirmed.