State v. Berry
| Decision Date | 10 March 1954 |
| Citation | 204 Or. 69,267 P.2d 993 |
| Parties | STATE v. BERRY et al. |
| Court | Oregon Supreme Court |
E. F. Bernard, Portland, for the motion.
John B. McCourt, Dist. Atty. for Multnomah County, Charles E. Raymond, J. Raymond Carskadon, Deputy Dist. Attys. for Multnomah County, Portland, contra.
This is a motion by the defendant Thomas G. Walker to dismiss an appeal taken by the state from a judgment of acquittal in a criminal action.
The defendant was indicted jointly with Richard L. Berry for a violation of Oregon Laws 1941, ch. 439, § 3 (), which defines the crime of 'negligent homicide', and was tried separately. Before the completion of the state's case in chief his counsel interposed the following motion:
'Mr. Bernard: May it please your Honor, at this time the defendant will object to the introduction of any further evidence in this case on the ground that the statute under which this indictment is drawn, being 23-410A Chapter 439, that the law of Oregon for 1941 is void in that it is too indefinite, uncertain and vague to apprise a person as to what acts are prohibited; that it is invalid and contrary to Section 11, Article 1 of the Oregon Constitution; that it further contravenes the Fourteenth Amendment to the Constitution of the United States in that it subjects a person to prosecution under an indefinite statute and thereby depriving him of due process of law under the Fourteenth Amendment.
'I object to the introduction of any evidence on the further ground that the indictment itself does not state the facts sufficient to constitute an offense.'
The court sustained the motion in the following language:
The court thereupon directed the jury to find the defendant not guilty, and, upon the verdict so returned, judgment of acquittal was entered. The ground of the motion to dismiss is that an appeal by the state from such a judgment is not authorized by statute. The pertinent provisions of ORS are the following:
138.020. 'Either the state or the defendant may as a matter of right appeal from a judgment in a criminal action in the cases prescribed in this chapter, and not otherwise.'
138.060. 'The state may take an appeal to the Supreme Court from a judgment for the defendant on a demurrer to the indictment or from an order of the court arresting the judgment.'
135.610. 'The demurrer shall be put in, in open court, either at the time of the arraignment or at such other time as may be allowed to the defendant for that purpose.'
135.620.
135.630. 'The defendant may demur to the indictment when it appears upon the face thereof that: * * *
'(4) The facts stated do not constitute a crime'.
135.640. 'When the objections mentioned in ORS 135.630 appear upon the face of the indictment, they can only be taken by demurrer, except that the objection to the jurisdiction of the court over the subject of the indictment, or that the facts stated do not constitute a crime, may be taken at the trial, under the plea of not guilty and in arrest of judgment.'
We think that the motion to dismiss is not well taken. The objection to the introduction of further evidence on the grounds that the statute on which the prosecution was based is unconstitutional and that the indictment did not state facts sufficient to constitute a crime is in effect a demurrer upon the latter ground. City of Portland v. Stevens, 180 Or. 514, 522, 178 P.2d 175. The right of the state to appeal granted by ORS 138.060 is not limited to those cases in which a demurrer in writing is filed pursuant to §§ 135.610 and 135.620. The objection of the defendant to the...
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State v. Van Brumwell
...fails to state an offense, the motion should be construed as a "premature motion in arrest of judgment"); State of Oregon v. Berry and Walker , 204 Or. 69, 72, 267 P.2d 993 (1954) (holding that the defendant's objection to testimony on the ground that the statute he was accused of violating......
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State v. Davis
...the court announced the decision to sustain the demurrer, but that fact is immaterial on the issue presented by the state. State v. Berry, Or., 267 P.2d 993. We will now consider the sufficiency of the indictment. Reduced to its simplest terms, the indictment charges the felonious killing o......
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Stout v. Madden
...cause of the accident since, but for that negligence, the accident would not have happened. Plaintiff cites State of Oregon v. Berry and Walker, 204 Or. 69, 80, 267 P.2d 993, 267 P.2d 995, 282 P.2d 344, 346, 282 P.2d 347, which quotes from Shearman and Redfield on Negligence, Rev.Ed., § 39,......
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State v. Brumwell
...to state an offense, the motion should be construed as a "premature motion in arrest of judgment"); State of Oregon v. Berry and Walker, 204 Or. 69, 72, 267 P.2d 993 (1954) (holding that the defendant's objection to testimony on the ground that the statute he was accused of violating was un......