State v. Birt

473 P.2d 669 (1970)

STATE of Oregon, Appellant,
v.
William Randolph BIRT, Respondent.

Court of Appeals of Oregon, Department 2.

Argued and Submitted July 23, 1970. Decided August 13, 1970.

Jacob B. Tanzer, Solicitor Gen., Salem, argued the cause for appellant. With him on the brief was Lee Johnson, Atty. Gen., Salem.

Harry F. Elliott, Hillsboro, argued the cause and filed the brief for respondent.

Before SCHWAB, C.J., and LANGTRY and FORT, JJ.

LANGTRY, Judge.

The state appeals from judgment of dismissal following the sustaining of a demurrer to an indictment alleging: Count One, the defendant committed upon a named woman robbery by force and violence, ORS 163.290; Count Two, that as a part of the same act and transaction on the same date the defendant unlawfully and forcibly ravished the same woman, ORS 163.210; and Count Three, that as a part of the same act and transaction on the same date the defendant unlawfully and feloniously permitted osculatory relations to be sustained with his private parts by the same woman, ORS 167.040.

The state contends that under State v. Huennekens, 245 Or. 150, 420 P.2d 384 (1966), the allegations of the three counts are valid against a demurrer grounded upon the reasons that more than one crime is stated, and multiple counts are improperly joined. We agree, and in this connection cite our discussion of the same question and the statutes involved in State v. Clipston, Or. App., 473 P.2d 682 (1970).

Defendant contends that the counts of the indictment, alleging forcible robbery, forcible rape, and permissive sodomy, are so inconsistent as to constitute a misjoinder. ORS 167.040 provides:

"(1) Any person who commits sodomy or the crime against nature, or any act or practice of sexual perversity, either with mankind or beast, or sustains osculatory relations with the private parts of any person, or permits such relations to be sustained with his private parts, shall be punished * * *."

A person can force another, physically and through threats, to do the acts constituting oral sodomy and as a part of the same act "permit" osculatory relations with his private parts. The word "permit" as used in this context does not mean that the act is necessarily permissive on the part of the victim. See Note 1, State v. Kuykendall, Or. App., 473 P.2d 670, decided this date. State v. Weitzel, 157 Or. 334, 69 P.2d 958 (1937), holds that "force is not an element of the crime of sodomy as defined by the statute." 157 Or. at 340, 69 P.2d at 961. Weitzel also holds that evidence of the entire transaction is admissible even though it may disclose the commission of another crime. Id. at 344, 69 P.2d 958.

Reversed with instructions to vacate the judgment of dismissal and reinstate the indictment.