State v. Cohen, 18-306
| Decision Date | 24 September 1979 |
| Docket Number | No. 18-306,18-306 |
| Citation | 600 P.2d 892,42 Or.App. 297 |
| Parties | STATE of Oregon, Respondent, v. Jeffrey J. COHEN, Appellant. (78-8869); CA 12428. |
| Court | Oregon Court of Appeals |
Marianne Bottini, Deputy Public Defender, Salem, argued the cause for appellant. With her on the brief was Gary D. Babcock, Public Defender, Salem.
Robert C. Cannon, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.
Before SCHWAB, C. J., and TANZER, RICHARDSON and ROBERTS, JJ.
The defendant appeals his conviction of aggravated murder. He contends that the indictment charged him with felony murder, but was insufficient to allege aggravated murder.
An indictment for any crime must allege the elements of that crime. ORS 132.550(7) requires an indictment to contain:
"A statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended * * *."
This indictment charged:
"That the above-named defendant(s) on or about the 2nd day of May, 1978, in Washington County, Oregon, did unlawfully and knowingly commit the crime of robbery, and in the course of and in furtherance of the said crime which the said defendant was committing, the said defendant did cause the death of another human being, to-wit: Donald V. Baune, by shooting him with a firearm, to-wit: a pistol * * *."
Felony murder and aggravated murder are distinct offenses with distinct punishments. The elements of the two crimes are the same except that aggravated murder requires one additional element: personal commission of the homicide.
The definition of felony murder is found in ORS 163.115(1)(b):
"It is committed by a person, acting either alone or with one or more persons, who commits or attempts to commit arson in the first degree, burglary in the first degree, kidnapping in the first degree, rape in the first degree, robbery in any degree or sodomy in the first degree and in the course of and in furtherance of the crime he is committing or attempting to commit, or the immediate flight therefrom, he, or another participant if there be any, causes the death of a person other than one of the participants."
Aggravated murder is defined in ORS 163.095(2)(d):
"The defendant personally committed the homicide in the course or in the furtherance of the crime of robbery in any degree, kidnapping or arson in the first degree, any sexual offense specified in ORS chapter 163, or in immediate flight therefrom."
It is sufficient for a charge of felony murder to allege that the defendant was engaged in the commission of one of the specified felonies and that a homicide resulted. The indictment need not allege who actually did the killing because any participant in the felony may be charged with murder.
In contrast, there is no vicarious liability for aggravated murder. Only the person who actually committed the homicide in the furtherance of or in flight from the felony has committed aggravated murder. An indictment for aggravated murder, therefore, must allege that the defendant personally committed the homicide. This indictment fails to do so. It is insufficient to put the defendant on notice that he must answer a charge of aggravated murder. Although sufficient to allege felony murder, it does not allege aggravated murder.
Because...
To continue reading
Request your trial
-
Sophanthavong v. Palmateer
...conceal the commission of a crime, even though the accused did not commit the homicide." This is simply not true. In State v. Cohen, 42 Or.App. 297, 600 P.2d 892, 894 (1979), the Oregon Court of Appeals held that, in contrast to felony murder, "there is no vicarious liability for aggravated......
-
Sophanthavong v. Palmateer
...conceal the commission of a crime, even though the accused did not commit the homicide." This is simply not true. In State v. Cohen, 42 Or.App. 297, 600 P.2d 892, 894 (1979), the Oregon Court of Appeals held that, in contrast to felony murder, "there is no vicarious liability for aggravated......
-
State v. Reynolds, 78-6-284
...sentence imposed here for conviction of aggravated felony murder violates equal protection. We recently held in State v. Cohen, 42 Or.App. 297, 600 P.2d 892 (1979), that the elements of aggravated murder and felony murder are the same, except that aggravated murder requires that the homicid......
-
State v. Cohen
...for modification of defendant's conviction from aggravated felony murder to felony murder and for entry of a new sentence. 2 42 Or. 297, 600 P.2d 892 (1979). Chief Judge Schwab dissented, arguing that the indictment, in its entirety, clearly charges that the defendant personally shot his vi......