Opinion
Argued June 10, 1966
Affirmed June 22, 1966
Appeal from Circuit Court, Multnomah County.
Affirmed.
J.J. MURCHISON, Judge.
Jack E. Collier, Portland, argued the cause and filed a brief for appellant.
Jacob B. Tanzer, Deputy District Attorney, Portland, argued the cause for respondent. On the brief were George Van Hoomissen, District Attorney, and George M. Joseph, Deputy District Attorney, Portland.
Before McALLISTER, Chief Justice, and GOODWIN, DENECKE, HOLMAN and HAMMOND, Justices.
Defendant was convicted of violating ORS 481.990 (4) (unlawful possession of a stolen motor vehicle) and appeals.
A police officer observed defendant riding a motorcycle which had been reported stolen. When defendant saw the officer, he abandoned the motorcycle and fled on foot. The vehicle was discovered to have been "hotwired" so that it would operate without a key.
Defendant contends that the trial court erred in refusing to permit one of his witnesses to testify concerning conversations allegedly overheard by the witness. The person who had stolen the motorcycle allegedly had told another person, in the presence of the witness but not in the presence of the defendant, that the defendant did not know the motorcycle was stolen. This offered testimony was properly excluded as hearsay.
Another assignment of error asserts that the prosecutor improperly referred in argument to evidence which had been excluded. The transcript fails to support this assignment.
Finally, it is asserted that the trial court erred in refusing to instruct the jury that in order to offend ORS 481.990 (4) the defendant must have had "exclusive" possession of the motorcycle. There is nothing in the statute to suggest that the legislature intended thus to confer immunity upon thieves who run in gangs. There was no error in refusing the instruction.
Affirmed.