296 P.2d 240 (Or. 1956), State v. Davis

Citation:296 P.2d 240, 207 Or. 525
Party Name:STATE of Oregon, Appellant, v. Joseph A. DAVIS, Respondent.
Case Date:April 18, 1956
Court:Supreme Court of Oregon

Page 240

296 P.2d 240 (Or. 1956)

207 Or. 525

STATE of Oregon, Appellant,

v.

Joseph A. DAVIS, Respondent.

Supreme Court of Oregon.

April 18, 1956

Argued Jan. 26, 1956.

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[207 Or. 529] Joe B. Richards, Deputy Dist. Atty., Eugene, for Lane County, argued the cause for appellant. With him on the brief were Eugene C. Venn, Dist. Atty., Eugene, for Lane County and Edward Leavy, Deputy Dist. Atty., Eugene, for Lane County.

J. Daniel Givan, Eugene, argued the cause for respondent. On the brief were Hale G. Thompson and Elmer Sahlstrom, Eugene.

Before WARNER, C. J., and ROSSMAN, LUSK, BRAND, LATOURETTE and PERRY, JJ.

[207 Or. 530] BRAND, Justice.

On the 15th day of April, 1954, the grand jury of Lane county returned an indictment against defendant Joseph A. Davis, which reads as follows:

'The above named Joseph A. Davis is accused by the Grand Jury of the County of Lane, State of Oregon, by this Indictment, of the crime of Manslaughter committed as follows:

'The said Joseph A. Davis on the 28th day of February, 1954, in the County of Lane and State of Oregon, then and there being, did then and there engage in the commission of the unlawful act of driving a certain motor vehicle, to-wit: a 1949 Studebaker Sedan, bearing Oregon License number 504-911 upon a certain public highway to-wit: Highway 58, while under the influence of intoxicating liquor, and did engage in the further unlawful act of driving the said motor vehicle on said highway carelessly, heedlessly, and in wilful and wanton disregard of the rights and safety of others, without due caution or circumspection and at a speed and in such a manner so as to endanger or be likely to endanger the person or property of another, and while so engaged in the commission of said unlawful acts did then and there drive, move and run the said motor vehicle against, on and into the person and body of one Lester Anderson and also against, on and into the person and body of one Wilmer T. Rowley, and did thereby unlawfully and feloniously inflict and cause to be inflicted certain mortal injuries, wounds and contusions upon the said Lester Anderson and the said Wilmer T. Rowley, who as a result of said mortal injuries, wounds and contusions did each die in Lane County within one year thereafter and on the 28th day of February, 1954; contrary to the statute in such cases made and provided and against the peace and dignity of the State of Oregon.'

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[207 Or. 531] On the 20th of April, 1954 defendant entered his plea of 'Not guilty to the crime of manslaughter.' On 15 July, 1954 defendant demurred to the indictment on the following grounds:

'(1) It does not substantially conform to the requirements of ORS 132.510 to 132.570, 132.590, 132.610 to 132.690, 132.710 and 132.720;

'(2) More than one crime is charged in the Indictment;

'(3) The facts stated do not constitute a crime.

'Counsel certify that in their opinion, this Demurrer is well-founded in law and will rely upon #135.630 ORS, 483.992 ORS, 483.990 ORS, Article I, Sec. 11 Constitution of Oregon, Amendment Six Constitution of United States.'

On 15 March, 1955 the demurrer was overruled. On 16 March the court verbally sustained the demurrer. On 8 April a written order was filed sustaining the demurrer and the cause was referred back to the grand jury. On 11 May judgment on the demurrer was entered for the defendant. The State of Oregon appeals.

The defendant contends that this court is without jurisdiction because the appeal was not filed within the time provided by law. Under ORS 138.060 'The state may taken an appeal to the Supreme Court from a judgment for the defendant on a demurrer to the indictment * * *.' Under ORS 138.070 'An appeal must be taken within 60 days after the judgment or order appealed from was given or made.' The judgment for the defendant on the demurrer was filed on 11 May, 1955. The notice of appeal was filed on 10 June, 1955 and was in ample time. There was no previous judgment. Neither the verbal order sustaining the demurrer nor the written order to the same effect [207 Or. 532] constituted a 'judgment for the defendant on a demurrer' as the defendant appears to believe.

Defendant cites many cases in an attempt to convince this court that the appeal should be dismissed because no bill of exceptions was filed. The state has advised us that 'Whether the facts alleged in the indictment sufficiently state a crime of manslaughter is the sole question upon this appeal.' The ruling on the demurrer and the judgment entered are a part of the record herein as appears from the transcript. The sufficiency of the indictment is properly before us. State v. Martin, 54 Or. 403, 100 P. 1106, 103 P. 512; State v. Morgan, 152 Or. 1, 48 P.2d 766, 52 P.2d 186.

It is true that the transcript contains an order showing that a jury was sworn to try the case on the day before 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 of Wilmer T. Rowley by striking him with an automobile, and alleges that the killing was committed while the defendant was engaged in the commission of two unlawful acts; first, driving while under the influence of intoxicating liquor, and second, driving carelessly, heedlessly and in wilful and wanton disregard of the rights and safety of others, without due caution or circumspection and at a speed and in such a manner as to endanger or be likely to endanger the person or property of another. The crime charged was the killing of a human being. The two unlawful acts were set forth for the purpose of characterizing the killing as manslaughter. If they served that purpose, then the indictment should not be considered[207 Or. 533] as duplicitous. The situation would be similar to that which exists when one is indicted for murder in the commission of rape, arson, robbery or burglary. State v. Evans, 109 Or. 503, 221 P. 822; State v. Merten, 175 Or. 254, 259, 152 P.2d 942.

The statute under which the indictment was drawn reads as follows:

'Any person who drives any vehicle upon a highway carelessly and heedlessly in wilful or wanton disregard of the rights or safety of others, or without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person

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or property, is guilty of reckless driving and shall be punished: * * *.' ORS 483.992(1).

Paragraphs (1)(a) and (1)(b) relate to punishment. Paragraph (2) reads as follows:

'Any person who, while being an habitual user of narcotic drugs or while...

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