State v. Gibbons

462 P.2d 680 (1969)

STATE of Oregon, Respondent, v. Louis GIBBONS, Appellant.

Court of Appeals of Oregon, In Banc.

Argued and Submitted October 30, 1969.

Decided December 24, 1969.

*681 Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellant.

James A. Sanderson, Deputy Dist. Atty., Klamath Falls, argued the cause for respondent. With him on the brief was Donald R. Crane, Dist. Atty., Klamath Falls.

BRANCHFIELD, Judge.

This is an appeal by the defendant from a judgment of conviction for the crime of robbery while not armed with a dangerous weapon.

In appealing, the defendant submits two assignments of error: First, that the circuit court erred in denying defendant's motion for a directed judgment of acquittal; and second, that the court erred in giving the jury an instruction on flight when no evidence of flight was presented.

Our disposition of defendant's second assignment of error makes unnecessary a discussion of the first. There was sufficient evidence to create a jury question as to defendant's participation in the robbery; however, it was error for the court to have given the instruction on flight. There was no evidence of flight sufficient to justify such an instruction. State v. Bonner, 241 Or. 404, 406 P.2d 160 (1965). The remainder of the evidence presented a close question concerning defendant's complicity in the crime. We cannot say that the error was harmless in this case.

There is one additional subject which requires comment. Defendant's trial counsel was formerly District Attorney. He signed defendant's indictment, and appeared in court for the state in two preliminary matters in this case. He then, after returning to private practice, undertook the defense of this case. We assume that full disclosure was made by counsel to both the state and the defendant and each consented to the representation. The case was vigorously defended, and no apparent prejudice resulted. However, this is not a sound practice. We cannot conceive of any circumstance in which a repetition would not be ground for reversal of a conviction.

Defendant's conviction is reversed and the case remanded for a new trial.