State v. Anderson

• Decision Date: 26 January 1966
• Citation: 242 Or. 457,410 P.2d 230
• Parties: STATE of Oregon, Respondent, v. Bobby Ray ANDERSON, Appellant.
• Court: Oregon Supreme Court

Page 230

410 P.2d 230

242 Or. 457

STATE of Oregon, Respondent, v. Bobby Ray ANDERSON, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted at Pendleton Oct. 27, 1965.

Decided Jan. 26, 1966.

Paul A. Thalhofer, Pendleton, argued the cause and filed a brief for appellant.

Michael S. Killoran, Deputy Dist. Atty., Pendleton, argued the cause for respondent. With him on the brief was Richard J. Courson, Dist. Atty.

Before McALLISTER, C. J., and PERRY, SLOAN, GOODWIN, DENECKE, LUSK, and SCHWAB, JJ.

LUSK, Justice.

The defendant was charged in a complaint filed in the District Court for Umatilla County will a violation of the Oregon nuisance statute, ORS 161.310. He was convicted in the district court, appealed to the circuit court, where he was again convicted and has appealed to this court.

As we view the case, the only question that need be considered is whether the facts stated in the complaint constitute a crime. No demurrer was filed, but the objection was raised by motion in arrest of judgment. Upon such a motion the court is authorized to consider the sufficiency of the complaint: ORS 136.810; ORS 135.630(4); ORS 156.030. The complaint reads:

'The above named defendant Bobby Ray Anderson is accused by this complaint of the crime of gross offense against the public peace, decency and morals committed as follows, to-wit:

'The said defendant Bobby Ray Anderson in the County of Umatilla, and State of Oregon, on the 18th day of May, A.D., 1964, then and there being, did then and there wilfully and unlawfully do an act, to-wit, did transport explosives upon the public highways of the State of Oregon, which said act grossly disturbed the public peace, openly outraged the public decency and injured public morals, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.'

ORS 161.310 reads:

'If no punishment is expressly prescribed for the act by the criminal statutes, any person who wilfully and wrongfully commits any act which grossly injures the person or property of another, or which grossly disturbs the public peace or health, or which openly outrages the public decency and is injurious to public morals, upon conviction, shall be punished by imprisonment in the county jail for not less than one month nor more than six months, or by fine not less than $50 nor more than $200.'

This statute was intended to cover offenses against the public peace, the public health, and the public morals not elsewhere made punishable by the criminal statutes and which were known at common law as indictable nuisances: State v. Elkins et al., 216 Or. 509, 511, 339 P.2d 715; Multnomah County Fair Ass'n v. Langley, 140 Or. 172, 176, 13 P.2d 354; State v. Waymire, 52 Or. 281, 285, 97 P. 46, 21 L.R.A.,N.S., 56, 132 Am.St.Rep. 699; State v. Nease, 46 Or. 433, 440, 80 P. 897.

While, as a general rule, in an indictment for an offense created by statute, it is sufficient to describe the offense in the words of the statute, yet this is not always the case.

'* * * [W]here the statute characterizes the offense in mere general or generic terms, or does not sufficiently define the crime or set forth all of its essential elements * * * the statutory words must be supplemented by other allegations which clearly and accurately set forth every ingredient of the offense with such precision and certainty as to leave no doubt in the minds of the accused and the court as to the exact offense intended to be charged.' 27 Am.Jur. 663, Indictments and Informations § 103.

See State v. Smith, 182 Or. 497, 502, 188 P.2d 998.

Obviously, these requirements apply with full force to a complaint or indictment charging a violation of the nuiance statute. 'It is impractical,' it is said in 2 Wharton's Criminal Law and Procedure 684, § 819, 'to attempt an exact definition [of a public nuisance] which will be universally applicable, because each individual case must stand on its own facts, and there is such a great variation between factual situations.' Hence, without clear, direct and full allegations of the facts from which it can be seen that the act or conduct alleged falls within the embrace of the statute, it cannot be said that a crime is charged. As stated in 66 C.J.S. Nuisances § 164, pp. 967-968:

'An indictment, information, or complaint for a public nuisance must set forth the essential ingredients of the offense, and describe and identify the alleged nuisance sufficiently to put defendant on notice as to what he is required to defend. A mere conclusion of law is insufficient; it must be supported by allegations of fact showing how the offense charged was...