State v. Brantley
| Decision Date | 17 June 1954 |
| Citation | 201 Or. 637,271 P.2d 668 |
| Parties | STATE v. BRANTLEY. |
| Court | Oregon Supreme Court |
Walter D. Nunley, Jr., Dist. Atty., Jackson County, of Medford, J. V. McGoodwin, Dep. Dist. Atty., Medford, on the brief, for appellant.
Edward C. Kelly, Medford, for respondent.
Before LATOURETTE, C. J., and WARNER, ROSSMAN and PERRY, Justices.
The grand jury of Jackson county, Oregon, indicted the defendant Gene R. Brantley, the charging part of the indictment reading as follows:
'That said Gene R. Brantley on the 25th day of August, 1952, in said County of Jackson and State of Oregon, then and there being, did then and there falsely and feloniously, with intent to defraud, knowingly publish as genuine a certificate of nomination certifying the nomination of Gene R. Brantley as an independent candidate for County Judge of Jackson County, upon which said certificate of nomination there was forged names of electors of Jackson County, Oregon, certifying said nomination, to-wit: E. R. Hoppe, Raymond Note, George Anderson, R. J. Otto, R. C. High and John Lewis, all of which he, the said Gene R. Brantley, then and there know, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.'
The defendant challenged the indictment by demurrer on the following grounds:
'Comes now the defendant, Gene R. Brantley, by his attorney, Edward C. Kelly, and demurs to the indictment returned herein upon the following grounds and for the following reasons, to-wit:
'1. That said indictment does not substantially conform to the requirements of Chapter Seven, Title 26, O.C.L.A.1940.
'2. That more than one crime is charged in said indictment.
'3. That the facts stated in said indictment do not constitute a crime.
'The particulars of said grounds of demurrer are as follows:
'1. The words 'with intent to defraud' do not conform to the requirements of Chapter Seven of Title 26 of the Code for the reason that the charge contained in the indictment is not one within the particulars specified in Section 23-568 and hence the provisions of Section 23-568 are not applicable. Said words, therefore, do not inform the defendant of whom it is alleged he intended to defraud or who it is alleged was defrauded, and the alleged act is, therefore, not charged in a clear and distinct manner and is not direct and certain.
'2. The words 'knowingly publish as genuine' do not charge a particular act and do not inform the defendant of the particular circumstances of the crime charged.
'3. The words 'a certificate of nomination certifying the nomination of Gene R. Brantley as an independent candidate for County Judge of Jackson County' do not charge the particular circumstances of the crime alleged to have been committed in a clear or distinct manner or with any degree of certainty. Likewise, the words 'upon which said certificate of nomination' as to said alleged certificate of nomination do not charge the particular circumstances in a clear and distinct manner and with certainty.
'With reference to the ground of demurrer that said indictment charges more than one crime, the particulars of said charge are that it is alleged that on said alleged certificate of nomination there were forged names of six alleged persons and said indictment, therefore, alleges a separate alleged crime as to each of said persons.
'The particulars of the ground of demurrer that the facts stated do not constitute a crime are:
'(1) The particular witings which may be the subject of forgery under Section 23-560 O.C.L.A.1940, are specifically named and enumerated in said section. By implication, all other writings are excluded. None of the writings specifically enumerated and set forth include certificates of nomination or other election matters. The statute prohibits knowingly uttering or publishing as true or genuine any such false, altered, forged or counterfeited record, writing, instrument or matter, the word 'such' referring to the particular writings previously referred to in the section.
'Since the certificate of nomination referred to in the indictment is one certifying the nomination of the defendant as an independent candidate for County Judge of Jackson County, the words 'certificate of nomination' could only refer to those authorized and provided for in Sections 81-1003-1008, O.C.L.A.1940 inclusive. These are obviously matters relating to election of public officer, and any offense with reference thereto would normally be found in the election code. There are no penal provisions in Chapter Ten of Title 81 of the Code, which are the sole sections in the Code relating to certificates of nomination.
'It is significant that with reference to initiative, referendum and recall petitions the Legislature has enacted certain penal statutes set forth in Chapter 24 of Title 81 of the Code. It will be observed that in Section 81-2401, O.C.L.A.1940, it is made unlawful for any person to circulate or cause to be circulated any referendum, recall or initiative petition knowing the same to contain false, forged or fictitious names. Violations of the statutes under Chapter 4, Title 81 are specifically made misdemeanors with maximum punishment of $100.00 fine and thirty days imprisonment. Obviously, the Legislature did not consider such offenses to be within section 23-560.
'Moreover, the Corrupt Practices Act Chapter 25, Title 81, of the Code, contains no provisions applicable to the facts stated in the indictment.
'The writings enumerated in Section 23-560 obviously do not include certificates of nomination. The certificates of nomination are not 'the certificate, return or attestation of any clerk, notary public or other public officer, in relation to any matter wherein such certificate, return or attestation may be received as legal evidence', are not 'any note, certificate or other evidence of debt issued by any officer of the state, county, town or other municipal or public corporation therein', are not 'any application to purchase state lands or assignment thereof, contract, charter, letters patent, deed, lease, bill of sale, will, testament, bond, writing obligatory, undertaking, letter of attorney, policy of insurance, bill of lading, bill of exchange, promissory note, evidence of debt, or any acceptance of a bill of exchange endorsement, or assignment of a promissory note, or any warrant, order or check, or money or other property, or any receipt for money or other property, or any acquittance or discharge for money or other property, or any plat, draft or survey of land,' and is not, from the facts alleged in the indictment, and could not be, in any event, a public record.
'(2) The indictment does not allege facts of the alleged publication of the alleged certificate of nomination showing that such certificate, if genuine, might be of legal efficacy or the foundation of legal liability.
'(3) The indictment does not allege the nature or tenor of the instrument, the certificate of nomination, alleged in the indictment, or set forth such instrument in said indictment.'
The trial court sustained the demurrer of the defendant and the State has appealed.
The State earnestly contends that the facts set forth in the indictment do constitute the crime of uttering a forged instrument, the basis of their argument being that § 23-560, O.C.L.A., which reads as follows:
'If any person shall, with intent to injure or defraud any one, falsely make, alter, forge, or counterfeit any public record whatever, or any certificate, return, or attestation of any clerk, notary public, or other public officer, in relation to any matter wherein such certificate, return, or attestation may be received as legal evidence, or any note, certificate, or other evidence of debt issued by any officer of this state, or any county, town, or other municipal or public corporation therein, authorized to issue the same, or any application to purchase state lands or assignment thereof, contract, charter, letters patent, deed,...
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