State v. Howell

SCHWAB, C. J.

The defendant appeals from a conviction of burglary not in a dwelling. OBS 164.240. On appeal he contends (1) the evidence against him was not sufficient to present a jury question, and (2) that the court erred in its instructions to the jury.^①

A La Grande jewelry store was burglarized between the time it closed on Friday, December 11, 1970, and opened on Monday, December 14, 1970. Various items of jewelry were stolen. The defendant and two other men, Luna and Lumpkins, were seen together in and near La Grande at various times and places both on the Friday before the burglary and during the weekend. There was evidence that the three were together in a motel room over the weekend, and a job envelope like those used in the jewelry store was found in the room.

On December 14, the defendant, accompanied by Lumpkins, pawned some of the stolen jewelry in Spokane, Washington. On December 17, the defendant and Lumpkins were arrested while in Lumpkins’s automobile. More of the stolen jewelry was found in the automobile at that time. The evidence was sufficient to create a jury question on the issue of whether or not the defendant participated in the breaking and entering. State v. Higgins, 1 Or App 84, 459 P2d 452 (1969).

We turn now to the issues concerning the instructions.

The court instructed the jury:

“A finding that defendant was in possession of stolen property shortly after it was stolen supports an inference that the defendant participated in breaking and entering the place where the property had been kept with intent to steal it.”

Assuming arguendo that this instruction was incomplete or otherwise erroneous the error was not properly preserved. The transcript shows that all that was said about it to the trial judge was:

“The Court gave the instruction which is supported by State vs. Higgins, I don’t know the number. It has to do with the possession of property stolen, supports an inference that the defendant participated in breaking and entering the place where property was kept with intent to steal it.”

Whatever the purpose of that comment was, it was not an objection which fairly informed the trial court what the defendant contended was wrong with the instruction. State v. Jorgensen, 8 Or App 1, 492 P2d 312 (1971) Sup Ct review denied (1972).

The defendant also claims that it was error to fail to give his requested instruction which read:

“You cannot render a verdict of guilty against the defendant * * * merely because you come to the conclusion that he may have committed the crime of receiving stolen property * *

There was no error in failing to give this instruction in view of the fact that the court instructed the jury that the defendant was charged only with the crime of burglary, that he could not be found guilty of any other offense, and that in order to find the defendant guilty of burglary the jury had to find beyond a reasonable doubt that, inter alia, “the defendant broke and entered the building described in the indictment.”

The remaining issue concerning the instructions is with regard to the court’s failure to give an instruction requested by the defendant which would have emphasized that acts which “aid and abet” a crime must occur “before or during” as distinguished from “after” the commission of a crime. The court did instruct the jury on this issue as follows:

“* * * The term ‘to aid and abet’ another in the commission of a crime means to advise, procure or encourage the commission of a crime knowingly and with criminal intent before or during its actual commission # * (Emphasis supplied.)

We know of no rule of law which entitles a party to emphasis of an instruction by repetition.

Affirmed.

① The defendant’s brief does not set out assignments of error under separate and appropriate headings (Rule 2.35) or contain a proper index containing page references to the assignments of error (Rule 2.20(1)), and meanders into a repetition of these assignments of error by way of claiming as error the court’s failure to grant a new trial.

“ * * Denial of a motion for a new trial based upon alleged errors committed on the trial, of which errors the appellant had knowledge at the time, may not be assigned as error on appeal. Sullivan et al v. Carpenter, 184 Or 485, 494, 199 P2d 655 (1948); Shearer v. Lantz, 210 Or 632, 312 P2d 581 (1957).’” State v. Truxall, 2 Or App 214, 217, 467 P2d 643 (1970).