State v. Merten

• Decision Date: 03 November 1944
• Citation: 152 P.2d 942,175 Or. 254
• Parties: STATE <I>v.</I> MERTEN ET AL.
• Court: Oregon Supreme Court

175 Or. 254

152 P.2d 942

STATEv.

MERTEN ET AL.

Supreme Court of Oregon.

Argued September 20, 1944.

Affirmed November 3, 1944.

Homicide

1. Under first degree murder statute, an attempt to commit crime of rape, arson, robbery, or burglary followed by infliction of death is an alternative to element of malice and it must be alleged whenever the state proposes to prove the alternative.

Indictment and information

2. First degree murder indictment, charging that defendants while engaged in commission of crime of assault and robbery being armed with a dangerous weapon by their acts killed victim by shooting and fatally wounding him, was not duplicitous and it complied with the law governing the substance of a pleading.

Criminal law

3. The right to grant a new trial is inherent in all courts unless withheld by lawful enactment.

Constitutional law

4. In construing constitutional provision, court could consider conditions present when the Constitutional Convention was under way.

Criminal law

5. Constitutional provision that "In all criminal cases whatever, the jury shall have the right to determine the law and the facts, under the direction of the court, as to the law, and the right of new trial, as in civil cases," guarantees a right of new trial coextensive with its use in civil cases and does not require motion for new trial in criminal case to be determined by jury.

Constitutional law

6. The practical construction which had been placed upon constitutional provision regarding jury trial in criminal cases could be considered in determining whether motion for new trial in criminal case is addressed to the jury.

Criminal law

7. A motion for new trial based on claim of evidence newly discovered is viewed with distrust, and movant assumes the burden of showing not only that he has discovered new evidence but also that the newly discovered evidence is material to the issues in the case.

Criminal law

8. In first degree murder prosecution, denial of motion for new trial for newly discovered evidence was not error.

                  See 11 Am. Jur. 676
                  23 C.J.S., Criminal Law, § 418
                

Before BAILEY, Chief Justice, and BELT, ROSSMAN, KELLY, LUSK, BRAND and HAY, Associate Justices.

Appeal from Circuit Court, Clackamas County.

EARL C. LATOURETTE, Judge.

Henry William Merten and Walter Lorne Wilson were convicted of murder in the first degree, and they appeal.

AFFIRMED.

Elton Watkins, of Portland, for appellants.

Fred A. Miller, District Attorney, of Oregon City (Stanley J. Mitchell, Deputy District Attorney, of Oregon City, on the brief), for respondent.

ROSSMAN, J.

This is an appeal by the defendants, two in number, from a judgment of the circuit court which adjudged them guilty of the crime of murder in the first degree and ordered their execution. The entry of the judgment was preceded by a plea of not guilty and by the receipt of a verdict of guilty, unaccompanied with a recommendation for life imprisonment as permitted by Constitution of Oregon, Art. I, § 37, and § 23-411, O.C.L.A.

Both appellants submit the following assignment of error:

"Indictment is fatal on demurrer if the facts charged therein constitute more than one crime, or one crime in several forms."

In addition the appellant, Wilson, presents the following two assignments of error:

1. "It was error for the Court to pass upon the motion for a new trial, — that being the exclusive province of the jury in criminal cases, particularly on the question of fact."

2. "Defendants' constitutional rights were violated by the Court and error made in refusing to grant a new trial; for in passing on the motion for new trial the Court necessarily determined question of fact; also the Court acted arbitrarily."

Neither a transcript of the testimony nor a bill of exceptions is before us. The aforementioned contentions are, therefore, predicated upon the indictment, the motion for a new trial and the affidavits which were filed with the motion.

We shall now consider the first assignment of error. The charging part of the indictment states:

"The said Henry William Merten and Walter Higgins, on the 22nd day of July A.D., 1943, in the said County of Clackamas and State of Oregon, then and there being, were then and there engaged in the commission of the crime of Assault and Robbery Being Armed with a Dangerous Weapon, by unlawfully and feloniously while being armed with a dangerous weapon, to-wit: a pistol, committing an assault upon one R.N. Porter, with intent, if resisted, to kill or wound the said R.N. Porter, and did then and there unlawfully and feloniously take paper currency, and divers coins, money of the United States of America, the denominations, kinds and amounts of which are to the grand jury unknown, from the person of the said R.N. Porter, and against his will, and the said Henry William Merten and Walter Higgins, while engaged in the commission of such crime of Assault and Robbery Being Armed with a Dangerous Weapon, by their acts killed one Ralph Dahlen by shooting and fatally wounding him, the said Ralph Dahlen, with said pistol, said act of defendants being contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon."

It later developed that the true name of the indictee, Higgins, is Walter Lorne Wilson.

Section 26-703, O.C.L.A., states:

"The indictment must contain:

(1) * * *

(2) A statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended."

Section 23-401 says:

"If any person shall purposely, and of deliberate and premeditated malice, or in the commission or attempt to commit any rape, arson, robbery, or burglary, kill another, such person shall be deemed guilty of murder in the first degree."

Section 23-428 thus defines the crime of Assault and Robbery While Armed with a Dangerous Weapon:

"If any person being armed with a dangerous weapon shall assault another with intent, if resisted, to kill or wound the person assaulted, and shall rob, steal, or take from the person assaulted any money or other property, * * * such person, upon conviction thereof, shall be punished * * *."

According to § 26-705,

"The manner of stating the act constituting the crime, as set forth in the appendix to this chapter, is sufficient, in all cases where the forms there given are applicable, and in other cases forms may be used as nearly similar as the nature of the case will permit."

Forms No. 2 and No. 10, as they appear in the appendix, follow:

"No. 2. Murder in committing or attempting to commit rape, arson, robbery, or burglary "Was engaged in the commission (or attempt to commit, as the case may be) of arson, by (stating it, as in an indictment therefor). And the said A B while engaged in the commission or attempt to commit, as the case may be) of such arson, by his act killed C D, by (striking him with a club, or by other means, or means unknown to the grand jury, to be stated as in No. 1)."

"No. 10. Assault and robbery, being armed with a dangerous weapon

"Being armed with a dangerous weapon, did commit an assault upon one C D, with intent, if resisted, to kill or would the said C D, and then and there feloniously took a gold watch (or as the case may be) from the person of the said C D, and against his will."

In State v. Dodson, 4 Or. 64, the use of the legislative forms in the drafting of indictments first received notice. The court said:

"Inasmuch as the body of the Act and the appendix seem to have been considered by the Legislature as component parts of the same statute and were published together as such; and as the appendix has been for several years invariably treated by the Courts as a part of the statutes; and the use of this form not being deemed subject to constitutional objection; either the departure from the prescribed mode, if there be any in the enactment, should be deemed as informality only, and not a substantial deviation from the requirements of the Constitution, or such forms as have grown into general use should be held to be sufficiently established by the practice of the Courts until the Legislature directs a change."

No change has been directed.

A comparison of the indictment previously quoted with the one set forth in State v. Evans, 109 Or. 503, 221 P. 822, shows that the two are counterparts in all material items. The same attack was made upon that indictment as upon the one now before us. In sustaining the indictment, the decision, written by Mr. Justice HARRIS and bearing evidence of his characteristically careful workmanship, says:

"Since it is apropos, we quote from the language of Mr. Justice Bean in State v. Morris, 83 Or. 429, 434 (163 Pac. 567, 569): `The indictment complies substantially with the terms prescribed by the statute.' We hold that the indictment is not defective in either of the particulars mentioned by the defendant."

See, in accord with the decision just reviewed, 27 Am. Jur., Indictments and Information, § 53, p. 620, in which it is said that the courts encourage the use of forms devised by the legislature.

1, 2. Of course, the attacked indictment mentions a crime in addition to the one which it charges against the defendants. Section 23-401, however, authorizes that course to be taken in murder cases if the accused was attempting to commit the crime of "rape, arson, robbery or burglary" when he brought death to his victim. The statute, in fact, deems an attempt to commit any one of those four crimes, followed by the infliction of death, as the equivalent of "deliberate and premeditated malice." Hence, the attempt is an alternative to the element of malice in the crime of murder. And such being its nature, it must be alleged whenever the state propose to prove the alternative. We are satisfied that the attacked indictment is not duplicitous and that it complies with all laws which govern...