DENECKE, Chief Justice.
Defendant was convicted, in a trial to a jury, of burglary in the first degree and of murder. The trial court imposed the mandatory life sentence for murder, and the maximum term of imprisonment, 20 years, for the burglary. The sentences are to run consecutively. The Court of Appeals affirmed. 29 Or.App. 15, 562 P.2d 220 (1977).
Petitioner asserts he was convicted of felony murder. Criminal homicide is defined as murder when it is committed intentionally ("intentional murder") or, if unintentionally, in connection with certain felonies ("felony murder").
In State v. Woolard, 259 Or. 232, 484 P.2d 314, 485 P.2d 1194 (1971), we considered a similar problem; however, as the Court of Appeals pointed out, the precise holding of Woolard is inapplicable. The defendant in Woolard was charged with and convicted of both burglary in a dwelling, committed by breaking and entering with intent to steal, and larceny in a dwelling, committed on the same occasion. The applicable statutes did not expressly indicate whether the legislature intended to authorize multiple sentences under those circumstances. In the absence of any such indication, and because the penalty for burglary in a dwelling was significantly more severe than the penalty for larceny in a dwelling, we concluded that the legislature intended the punishment for the burglary to also constitute the punishment for the larceny which might follow.
In the present case, as in Woolard, we are without express guidance either in the statute or the legislative history as to the legislature's intent. We know only that it has provided for a substantially enhanced penalty for unintended homicide when committed while attempting, carrying out, or escaping after any of certain serious felonies. All of the listed felonies are inherently dangerous to human life. When that danger is realized and a life is taken, although unintentionally, during the commission of one of those crimes, the legislature has provided a mandatory sentence of life imprisonment.
During oral argument, there was considerable discussion about whether we could properly reach the issue involved here. Although the indictment charged only felony murder and burglary, the jury was instructed, at the state's request, that it could find defendant guilty of murder if it found that the defendant had killed the victim either intentionally or in the course and in furtherance of the burglary. Although defendant excepted to this instruction, he has not assigned it as error on appeal,
The possible consequences of the ambiguity were equally foreseeable by both the state and the defendant. The cause of the ambiguity was the prosecution's decision to proceed against defendant on intentional murder and felony murder and to request an instruction permitting the jury to convict of murder on either theory (or a combination of the two). The prosecution took
Defendant also contends that the jury should have been instructed on the statutory presumption that a blood alcohol level of .10% or more indicates that the subject is under the influence of alcohol.
The sentence for the burglary is vacated. The conviction and sentence for murder are affirmed.
LINDE, Justice, concurring.
In the instructions referred to in the court's opinion, the trial court not only submitted to the jury two alternative theories of murder, only one of which was charged in the indictment; the court also told the jury that they could find the defendant guilty of murder though they did not agree whether it was intentional or felony murder.
However, defendant objected only to the first aspect of the instruction stated above and did not pursue even that objection on appeal. Thus only the burglary sentence must be vacated.
LENT, J., joins in this concurring opinion.
It is not necessary for all of you as jurors to agree on whether the Defendant committed intentional murder or felony murder so long as you unanimously agree that the Defendant is guilty beyond a reasonable doubt of murder; that is some of you could feel that the Defendant is guilty under one theory and some of you could feel that the Defendant is guilty under another theory and you could still agree on a verdict provided you all agree that one way or the other a murder was committed by the Defendant.