dissenting.
Contrary to the majority, my conclusion after studying the record is that the state’s evidence, when tested as required by ORS 136.440(1), quoted below, is not sufficient to connect defendant with the alleged conspiracy, much less establish that
"[d]efendant * * * did * * * agree with Linda Olsen, Kenneth Arlen Moore and Thomas Peter Tucker to cause the death of * * * Philip Olsen,”
as charged in the indictment.
ORS 136.440(1) provides:
"A conviction cannot be had upon the testimony of an accomplice unless it is corroborated by other evidence that tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances of the commission.”
*360In State v. Brake, 99 Or 310, 314, 195 P 583 (1921), the Oregon Supreme Court spelled out the basic standards for judging the sufficiency of evidence offered as independent corroboration of a defendant’s involvement in a conspiracy: "The corroborative evidence must of its own force, independently of the accomplice testimony, tend to connect the defendant with the commission of the crime.”
Such evidence can be entirely circumstantial, and need not be sufficient for proof of every element of the crime. However,
" '* * * evidence which merely raises a suspicion that defendant is the guilty party is not sufficiently corroborative of the testimony of an accomplice to warrant a conviction, nor will uncertain or equivocal corroboration suffice.’ 16 C.J.S., Criminal Law 712, § 1457.”
State v. Reynolds, 160 Or 445, 458-59, 86 P2d 413 (1939).
The majority opinion maintains that the following three items of evidence are sufficient to provide the required 'independent corroboration’ of Mrs. Olsen’s claim that defendant was a coconspirator in the alleged plot to kill her husband:
First, Mrs. Olsen’s telephone conversation with defendant which was instigated and tape-recorded by the police. This conversation is set out in full in the majority opinion;
Second, her husband’s testimony that he had a telephone conversation with defendant on an earlier and unrelated occasion about whether defendant could arrange to have two other people "eliminated” whom he suspected of setting fire to his office; and
Third, the final incident in the alleged conspiracy when Mrs. Olsen met with Buddy Moore at the Portland Motor Hotel and pretended to seal the transaction with Moore and paid him the money.
As to the first item, the telephone conversation between Linda Olsen and defendant is too vague, *361ambiguous and indefinite to meet the test applied in Brake and Reynolds. The alternatives to divorce or desertion of Mrs. Olsen’s husband are not specified. The defendant tells Mrs. Olsen to use her own judgment in seeing Buddy Moore, and does not hint at the subject of the meeting.
As to the second item, Philip Olsen’s testimony that defendant said he could have people eliminated is insufficiently related to the conversation just mentioned above to raise more than a suspicion that defendant and Mrs. Olsen may have been discussing the elimination of Philip Olsen in the taped conversation. Furthermore, Mrs. Olsen testified on cross-examination that she had never told defendant that she wanted her husband killed. The only evidence tending to show that defendant may have known of this wish was her testimony that Buddy Moore told her that defendant had guessed that this was her intention. This was hearsay twice removed. The state did not call Moore as a witness.
As to the third item, this is the weakest reed of all. While this testimony tends to corroborate the existence of the alleged conspiracy, there is simply nothing in this motel transaction linking defendant to the conspiracy.
In summary, given the provisions of ORS 136.440(1) and the paucity of the corroborative evidence, I cannot join in affirming this conviction.