State v. Sutton

439 P.2d 627 (1968)

The STATE of Oregon, Respondent, v. James H. SUTTON, Appellant.

Supreme Court of Oregon, In Banc.

Submitted on Briefs March 1, 1968.

Decided April 10, 1968.

Lawrence A. Aschenbrenner, Public Defender, and Gary D. Babcock, Deputy Public Defender, Salem, for appellant.

George Van Hoomissen, Dist. Atty., and Jacob B. Tanzer, Deputy Dist. Atty., Portland, for respondent.

PER CURIAM.

Defendant was convicted of armed robbery. An estimated $50 to $60 had been taken from a gasoline station.

At the time of his arrest, defendant had in his possession $40.50. This fact was admitted in evidence over objection. The only issue is whether admittance of the above evidence was error. Defendant argues it was, on the ground that possession of the money by itself does not lead to an inference he was the thief. The state argues such evidence is admissible as one circumstance, among others, that can lead to an inference of guilt.

In State v. Hunter, 235 Or. 308, 384 P.2d 983 (1963), we held evidence relating to money in defendant's possession after the commission of a robbery was admissible. Annotation, 91 A.L.R.2d 1061 (1963).

In Hunter, supra, quoting Mr. Justice Holmes, this court said 235 Or. at page 314, 384 P.2d at page 986:

"`* * * Evidence which would be colorless if it stood alone may get a new complexion from other facts which are *628 proved, and, in turn, may corroborate the conclusion which would be drawn from the other facts.'"

Other evidence included identification of defendant by the victim; possession by the defendant at the time of his arrest of a weapon similar to the one used in the crime; and he was arrested about an hour after the robbery in a car similar to the one used in the holdup. Evidence of the $40.50 is not by itself sufficient, but with the rest of the evidence weighed by the jury it had probative value.

"* * * Evidence is relevant and admissible if it shows possibility, capacity, probability, or certainty * * *." State v. Sack, 210 Or. 552, 581, 300 P.2d 427, 441 (1957).

Judgment is affirmed.