State v. Barnes

• Decision Date: 16 July 1973
• Citation: 97 Adv.Sh. 839,14 Or.App. 23,511 P.2d 1235
• Parties: STATE of Oregon, Appellant, v. Kenneth Roy BARNES, Respondent.
• Court: Oregon Court of Appeals

Page 1235

511 P.2d 1235

14 Or.App. 23

STATE of Oregon, Appellant, v. Kenneth Roy BARNES, Respondent.

Court of Appeals of Oregon.

Argued and Submitted May 21, 1973.

Decided July 16, 1973.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen., Salem.

Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for respondent.

Before SCHWAB, C.J., and LANGTRY and FOLEY, JJ.

LANGTRY, Judge.

The state appeals from dismissal of an indictment charging first degree theft after the sustaining of defendant's demurrer thereto. ORS 164.055(1)(a) provides:

'(1) A person commits the crime of theft in the first degree if, by other than extortion, he commits theft as defined in ORS 164.015; and

'(a) The total value of the property In a single or aggregate transaction is $200 or more * * *.' (Emphasis supplied.)

The demurrer was based on the ground the indictment states more than one crime. ORS 135.630(3).

The indictment reads:

'The said KENNETH ROY BARNES on or about the 17th day of December, 1972 and the 18th day of December, 1972, in the county aforesaid, did unlawfully, with intent to defraud, by creating a false impression of value in the mind of another, to-wit, Gregory Schultz, Henry Quast, and Marcia Davis, obtain property, to-wit, clothing and currency of the United States of America, of another, to-wit, Alexander's Men's Store, and Keith O'Brien, Inc., West Park Plaza, Ontario, Oregon, in an aggragate (sic) transaction of a total value in excess of $200.00, by giving a bank check dated December 18, 1972 to the said Alexander's Men's Store in the sum of $80.00, signed by the said defendant, and, by giving two bank checks to the said Keith O'Brien, Inc., both checks in the sum of $80.00, one bank check being dated December 17, 1972, and the other bank check being dated December 18, 1972 * * *.'

The state contends the indictment states the single crime of first degree theft. If it does state that crime, the fact that it also states the three separate lesser included crimes of second degree theft would not be a basis for sustaining the demurrer. State v. Branton, 49 Or. 86, 87 P. 535 (1906); State v. Savage, 36 Or. 191, 60 P. 610, 61 P. 1128 (1900); State v. McCauley, 8 Or.App. 571, 575, 494 P.2d 438, Sup.Ct. review denied (1972).

The key question is whether the acts alleged in the indictment fall within the meaning of 'a single or aggregate transaction' under ORS 164.055(1)(a).

The language in question was added as an amendment by the Senate Criminal Law and Procedure Committee. The committee had heard testimony that 'professional' bad check artists usually wrote checks for less than the felony amount but that many professionals would often write checks aggregating around $1,000 in a short time. Senate Criminal Law and Procedure Committee Minutes, March 3, 1971, March 5, 1971.

Testimony before the Senate committee indicated that the word 'aggregate' was derived from New York case law.

People v. Cox, 286 N.Y. 137, 36 N.E.2d 84, 136 A.L.R. 943 (1941), was a prosecution for grand larceny. The defendant, a subway worker, was accused of stealing tokens from turnstiles, taking a small amount each day. Over a period of months the sum taken aggregated to over a $1,000. The court stated:

'* * * Here there was a continuing larceny by a thief operating under a single purpose to carry out a general fraudulent plan. We have first the formulation of a plan for systemized thievery, then the adoption of the plan by persons able to make it effective, and lastly its subsequent realization, together with the taking of the necessary steps to preserve a continuing operating unmolested * * *.' 286 N.Y. at 144, 36 N.E.2d at 87.

Aggregation was thus approved and this rule has been followed in similar cases where defendant was accused of taking property from one owner by the same means, from the same place, at different times. Commonwealth v. England, 350 Mass. 83, 213 N.E.2d 222 (1966); People v. Rossi, 5 N.Y.2d 396, 185 N.Y.S.2d 5, 157 N.E.2d 859 (1959); People v. Daghita, 276 App.Div. 20, 92 N.Y.S.2d 799 (1949), affirmed as modified 301 N.Y. 223, 93 N.E.2d 649 (1950). However, in a case where defendant was convicted on nine counts of forgery involving nine different victims, a conviction for grand larceny in the tenth count was disallowed because the proof on trial failed to establish any taking or series of takings from a single owner of a sum large enough to constitute grand larceny. People v. Thiel, 26 A.D.2d 897, 274 N.Y.S.2d 417 (1966).

'Transaction' is a word that has frequently been defined by the courts of this state in the context of criminal cases. In State v. Laundy, 103 Or. 443, 204 P. 958, 206 P. 290 (1922), the court stated:

'In this jurisdiction it is not permissible to join two or more counts in a single indictment. An indictment must in the language of our statute 'charge but one crime,' and consequently, if an indictment charges a defendant with two or more distinct and substantive offenses, it is bad for duplicity * * *.

'The general rule is that, where a single offense may be committed by several means, it may be charged in a single count to have been so committed, if the ways or means are not repugnant * * *.

'* * * But the rule does not apply when repugnancy results from charging the acts conjunctively; Nor does the rule apply where the acts are distinct and are performed at different times and do not constitute component parts of one transaction: (citing authorities).' (Emphasis supplied.) 103 Or. at 466--467, 204 P. at 966.

In State v. McDonald, 231 Or. 48, 365 P.2d 494 (1961), cert. denied 370 U.S. 903, 82 S.Ct. 1247, 8 L.Ed.2d 399 (1962), the court said:

'* * * The same transaction is usually to be found in a continuing crime. Such a crime has been defined as a 'continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy.' Armour Packing Co. v. United States, 8 Cir., 153 F. 1, 5, affirmed 209 U.S. 56, 28 S.Ct. 428, 52 L.Ed. 681. An example of a crime of this nature is to be found in the continuous and uninterrupted transportation of the same identical liquor through several counties. State v. Shimman, 122 Ohio St. 522, 172 N.E. 367, 73 A.L.R. 1502.

'Also, in larceny cases it has been held in the majority of jurisdictions that the stealing of property from different owners at the same time and place constitutes but one larceny. State v. Clark, 46 Or. 140, 80 P. 101; 28 A.L.R.2d 1182.

'* * *

'Each indictment (in McDonald) charges a separate and distinct act of violence at separate and distinct places against the property of different individuals and different property. Therefore, the plea does not meet the 'same transaction test." 231 Or. at 53--54, 365 P.2d at 496--497.

In State v. Huennekens, 245 Or. 150, 152, 420 P.2d 384 (1966), the court in ruling on what was to be considered one transaction for purposes of ORS 132.560 ¹ stated:

'For our immediate purpose here it is sufficient to say that the idea permeates the cases that to be joined the charges must relate to conduct or acts that are concatenated in time, place and circumstances and that the evidence of one charge would be relevant and admissible with the evidence of other charges * * *.'

The court in Huennekens went on to amplify its requirement of the admissibility of evidence of the separate charges by discussing cases from other jurisdictions where the evidence of one crime necessarily included or was inseparable from the evidence of the other crime. It quoted with approval State v. Weitzel, 157 Or. 334, 344, 69 P.2d 958 (1937):

"Appellants complain of the admission in evidence of the facts and circumstances surrounding the attempted rape. It is asserted that such evidence has no relevancy to the charge of sodomy. The law is well settled that, when several criminal acts are so connected with the defendant, with respect to time and locality, that they form an inseparable transaction, and a complete account of the offense charged in the indictment cannot be given without detailing the particulars of such other acts, evidence of the entire transaction is admissible, even though it may disclose the commission of another crime * * *." 245 Or. at 154, 420 P.2d at 386.

From the testimony presented to the committee at the time the amendment was adopted it would appear that the committee was adopting an erroneous version of the 'transaction' definition given in State v. Huennekens, supra.

Richard Barton of the Multnomah County District Attorney's office presented an amendment that was eventually adopted as the statutory language in question. He testified that his amendment was aimed at covering the professional bad check situation.

'Mr. Barton called attention to the amendments submitted by the Portland Study Committee and said he believed the Oregon Retail Association would support the amendments also, in that there (sic) were worked out after discussion with Mr. Christman (Arden-Mayfair, Inc.) and Mr. Dehaan (Fred Meyer Shopping Centers) following the hearing held on Article 14 on March 2nd. (See Exhibit B, * * * (infra)).

'Senator Carson asked about the period of time during which the 'tacking' or 'aggregating' would be allowed--he wondered how long a period would be permitted.

'Mr. Barton replied that the 'transaction test' would be used--this is the test of pleading right now in the state. If an act is too remote to qualify as part of one transaction or scheme, it is excluded from being used as evidence presently. It is felt, therefore, that there is an existing body of case law defining 'transaction.' (Emphasis supplied.)

'* * *

'PROPOSED AMENDMENTS TO

'SENATE BILL 40

'PORTLAND STUDY COMMITTEE

Exhibit B

Minutes 3/5/71

'On page 52 of the printed bill, Section 125, line 29, delete the period at the end of the line, insert a...