State v. Cochran ( 1984 )

GILLETTE, P. J.

The state appeals from an order of the district court sustaining a pretrial demurrer and dismissing a charge of illegal possession of human remains. ORS 138.060(1). The state argues that the charging instrument was written in the language of the pertinent criminal statute and is, therefore, sufficiently definite to withstand demurrer. We disagree and therefore affirm.

The statute under which defendant was charged, ORS 97.745(2), provides, in pertinent part:

“No person shall: (a) Possess any native Indian artifacts or human remains taken from a native Indian cairn or grave * * * »

The information filed against defendant alleges, in pertinent part:

“The defendant between May 12,1981 and May 31,1981, * * * did unlawfully and knowingly possess human remains taken from a native Indian grave [contrary to law] * *

Defendant filed a demurrer (which he denominated an “objection to charge”), maintaining that the statute was only intended to forbid possession of Indian remains and that the charging instrument should therefore be dismissed because it fails to allege that the remains in question were Indian. The trial judge agreed and dismissed the charge. This appeal followed.

On appeal, the state argues that the term “native Indian,” as used in the phrase “[p]ossess any native Indian artifacts or human remains” in the first part of ORS 97.745(2), modifies only the word “artifacts,” not the further phrase “human remains.” That being so, the state argues, the charging instrument was written in the pertinent language of the statute and the demurrer should not have been sustained. See State v. Strandquist, 57 Or App 404, 407, 644 P2d 658, rev den 293 Or 483 (1982). Defendant acknowledges the Strandquist rule but argues that, without alleging that the human remains were Indian, the charging instrument was not drawn in the language of the statute.

Although the statute is ambiguous and the resolution of the issue presented is not wholly free from doubt, we are satisfied that the trial judge was correct: “Native Indian” modifies “human remains” as well as “artifacts.” We are persuaded by the fact that the whole purpose of the statute is to protect the native Indian heritage and culture; expanding the class of protected human remains to include those of other races and ethnic origins that happen to be — for whatever reason — in Indian graves therefore seems to refocus the statute’s purpose. It could be argued that the legislature intended special protection for Indian gravesites and gave them the broadest possible protection by forbidding the removal of any human remains from them. We reject this construction because, if that were the legislature’s focus, we think it would also have forbidden the removal of any — not just Indian— artifacts as well.

Affirmed.