State v. Miller

LANGTRY, J.

Defendant, Gerald Miller, appeals from a conviction by a jury of armed robbery. ORS 163.280.

Defendant’s brother, Ronald Miller, was identified as an armed robber who held up the clerk in a Plaid Pantry store. An acquaintance of the defendant testified that she and her husband went to the store on the evening of the robbery. As her husband approached the store, she saw defendant, who she positively identified, standing outside. She saw defendant wave, possibly indicating her husband’s presence to someone inside the store, and the man later identified as Ronald Miller, with a bag and a gun in his hands, came through the door as her husband opened it. He and defendant walked rapidly away together. Her husband’s testimony corroborated the details of her account. The defendant did not put on a case.

Defendant assigns as error the court’s instructions : (1) that witnesses are presumed to speak the truth;

(2) that the jury “must” infer that a pistol was loaded;

(3) that 10 or more of the jury could find a verdict; and (4) that the court should have directed a verdict for defendant.

(1) The court’s instructions on the presumption of truth as to testimony of witnesses were even more complete than those approved in State v. Kessler, 254 Or 124, 458 P2d 432 (1969), where error was claimed for a similar instruction and the court denied relief.

(2) The original transcript showed that the court had instructed that the jury must infer a pistol used in a robbery was loaded, but the transcript was corrected, and, as it has now been submitted, it clearly shows that the instruction actually given was that the jury “may” so infer. The assignment is, therefore, no longer viable. State v. Smith, 245 Or 461, 463, 422 P2d 576 (1967).

(3) State v. Gann, 254 Or 549, 463 P2d 570 (1969), rejects defendant’s contention that a jury verdict in a criminal case in Oregon must be unanimous.

(4) Two witnesses, one of whom was well-acquainted with defendant, identified defendant as being outside the store while the robbery was in progress, the one who knew defendant saw him wave in such a way that from her testimony the jury could infer it was a signal to the robber inside, and she saw defendant and the robber walk rapidly away from the scene together.

From this evidence, the jury could draw the inference that defendant was an accomplice in the robbery and responsible as a principal therein. ORS 161.220; State v. Jones, 249 Or 601, 439 P2d 887 (1968). It would have been error for the court to direct a verdict for defendant.

Affirmed.