State v. Nussbaum , 6 Or. App. 300 ( 1971 )

FOLEY, J.

Defendants Carolyn Nussbaum, Ralph Nussbaum, James Howe, Paul Gratz, Kathryn Zerzan, Frances Harris, Jeffrey Freed and Robert Lothian were accused in separate indictments of participating in a riot, during the course of which a Reserve Officer Training Corps building on the University of Oregon campus was burned.

The indictments read as follows:

“The said [name of individual defendant] on or about the 15th day of April, 1970, at approximately 6:00 p.m., in the county aforesaid, did wilfully participate in a riot by acting together without authority of law with three or more persons who, with immediate power of execution, did threaten to use and did use force and violence and in the course of said riot, the Reserve Officers Training Corps public building located at or near 16th and Alder Streets on the University of Oregon campus, Eugene, Oregon, was wilfully, maliciously and wantonly set fire to and burned; contrary to statute and against the peace and dignity of the State of Oregon.”

Defendants Paul Murphy, John Dolan, Joseph Chase, Mark Viera and Russell ITusted were accused in separate indictments of participating in a riot, during the course of which one William Leroy Childers was unlawfully assaulted by being struck with an allegedly dangerous weapon, a glass cup.

The indictments read as follows:

“The said [name of individual defendant] on or about the 23rd day of April, 1970, in the county aforesaid, did wilfully participate in a riot by acting together without authority of law with three or more persons who, with immediate power of execution, did threaten to use and did use force and violence and in the course of said riot, William Leroy Childers was wilfully and unlawfully assaulted by being struck with a dangerous weapon, to wit, a glass cup; contrary to statute and against the peace and dignity of the State of Oregon.”

Prior to entry of a plea, each defendant demurred on several grounds, including ORS 135.630(2),^① and each demurrer was sustained by three circuit judges, sitting in bane, for the reason that the indictments neither alleged the names of co-rioters nor, alternatively, alleged their names to be unknown to the grand jury. The soundness of this ruling is the sole issue on appeal.

The state appeals pursuant to ORS 138.060(1), and requests this court for an order reinstating the indictments.

The state contends that failure to allege the names of the co-rioters or, in the alternative, to allege that their names are unknown, is at most a defect in form and not demurrable. The state also asserts that since the indictments were in the language of the statute, and that a conviction under such an indictment would be upheld, the trial judges were in error in sustaining the demurrers.

“* * * The objects of an indictment are (1) to inform the accused of the nature and character of the criminal offense with which he is charged with sufficient particularity to enable him to make his defense, (2) to identify the offense so as to enable the accused to avail himself of his conviction or acquittal thereof in the event that he should be prosecuted further for the same cause, and (3) to inform the court of the facts charged so that it may determine whether or not they are sufficient to support a conviction. * * *” State v. Smith, 182 Or 497, 500, 188 P2d 998 (1948).

The statute on which the indictments are based reads as follows:

ORS 166.040:

“(1) Any use of force or violence, or threat to use force or violence, if accompanied by immediate power of execution, by three or more persons acting together, and without authority of law, is riot.”

It is the general rule that if an indictment is based upon a statute it is sufficient if it follows the wording thereof. However, if this general rule were applied in every situation and at every stage of the proceedings, ORS 135.630(2) would he rendered meaningless.

“It is obvious that an indictment may fail to comply with at least some of the requirements specified in ORS 136.630(2) and yet not be demurrable on the grounds stated in ORS 135.630(4) —(failure of facts stated to constitute a crime.) If every failure to comply with all of the provisions of law specified in ORS 135.630(2) made an indictment demurrable under ORS 135.630(4), there would have been no occasion to provide for any demurrer except on the basis of the latter subsection.” State v. Holland, 202 Or 656, 666, 277 P2d 386 (1954). See e.g., State v. Freeman, 4 Or App 627, 481 P2d 638 (1971).

State v. Smith, supra, explains the function of the demurrer which tests the definiteness and certainty of an indictment:

“Section 11 of the bill of rights (Art. I, section 11, Oregon Constitution) provides that, in all criminal prosecutions, the accused shall have the right to demand the nature and cause of the accusation against him. The opportunity which the statute gives an accused to question the sufficiency of an indictment as to definiteness and certainty, by demurrer on the ground that it does not conform to the provisions of * * * [ORS 132.510 to 132.620, inclusive], meets the requirements of the bill of rights in this respect. If he fails to avail himself of that opportunity, he cannot complain afterwards. People v. Bogdanoff, supra (254 N.Y. 16, 171 N.E. 890, 69 A.L.R. 1378). The failure of the indictment to set forth the particular acts constituting the offense charged is waived by not making timely objection thereto, as, for example, by failing to demur upon that ground before pleading to the merits. * * *” 182 Or at 507-508.

There being no bill of particulars in criminal cases in Oregon, the demurrer provided by ORS 135.630(2) is a safeguard designed to allow a defendant, where necessary, to protect his right to be fully informed of the nature of the charge against him.

The state argues that ORS 132.590, which reads:

“No indictment is insufficient, nor can the trial, judgment or other proceedings thereon be affected, by reason of a defect or imperfection in a matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”,

requires that “to constitute valid grounds for demurrer, the alleged defect in the indictment must substantially prejudice defendant’s case.” Rather, the test pointed out in the statute is whether the defect tends to the prejudice of defendant’s substantial rights. Furthermore, the time in the proceedings when the issue is raised is recognized as being of some importance. In Howell v. State, 1 Or 241, 245 (1859), the court, in discussing this statute, said:

“* * * The spirit and reasonable intendment of this provision of law is, that if an indictment is defective, or imperfect, in matter of form, and trial, judgment, or other proceeding is had upon it such proceeding will not be affected by reason of such defect or imperfection * * (Emphasis supplied.)

The above quotation suggests the distinction to be made between the certainty required in an indictment at the pleading stage and objections to the indictment later on as grounds for reversal of a conviction.

The state in its brief concedes that a summary of the case law from other states, which was relied on by the trial court, presents the following state of the law:

“Although the indictment must allege the names of the minimum number of co-rioters, or, in the alternative, allege their names to be unknown, the proof need show only that the defendant himself participated with the minimum number of co-rioters, even if their names were not alleged in the indictment, and even if their names were not alleged to be unknown, and, if alleged to be unknown, even if they were in fact known.”

While admittedly not necessary to state a crime, the names of the minimum number of alleged co-rioters serves to more “fully apprise [defendant] of the nature and identity of the offense, which he is called to answer,” State v. O’Donald, 12 SCL 532, 533, 10 Am Dec 691 (1822), and consistent with the search for truth which is basic to every judicial proceeding, furnishes the defendant with information which serves to make definite that with which he is charged.

In reviewing the Oregon cases in which riot was charged, the following cases disclose the indictment either alleged the identity of the alleged co-rioters or that their names were unknown, or both: State v. Mizis, 48 Or 165, 167, 85 P 611, 86 P 361 (1906); State v. Allen, 152 Or 422, 53 P2d 1054 (1936); State v. Seeley, 51 Or 131, 132, 94 P 37 (1908); State v. Stephanus, 53 Or 135, 136, 99 P 428 (1909). We agree with the order of the trial court which sustained the demurrer “on the grounds that the indictment fails to allege the names of the co-rioters, or in the alternative allege their names to be, to the Grand Jury, unknown.” This court being of the opinion that the matter could be corrected, it is authorized that the case be resubmitted to the grand jury.

Affirmed.

① ORS 135.630(2):

“It does not substantially conform to the requirements of ORS 132.510 to 132.570, 132.590, 132.610 to 132.690, 132.710 and 132.720.”