State v. Davis
| Decision Date | 12 December 1969 |
| Citation | 462 P.2d 448,1 Or.App. 285 |
| Parties | STATE of Oregon, Respondent, v. Mary DAVIS, Appellant. |
| Court | Oregon Court of Appeals |
Hardy Myers, Jr., Portland, argued the cause for appellant. With him on the briefs were Rives & Schwab, Portland.
Jacob B. Tanzer, Sol. Gen., Salem, argued the cause for respondent. With him on the brief was George Van Hoomissen, Dist. Atty., Portland.
Before LANGTRY, P.J., and FOLEY, FORT and BRANCHFIELD, JJ.
Defendant Mary Davis was found guilty by a jury of second degree murder for causing the death of her 20-month-old son, Matthew. A recitation of the facts adduced at trial which occupied some three weeks is not necessary. It is sufficient to say that it discloses grievous inattention of the mother to the child, unconscionable neglect in failing to continue medical attention and extremely poor judgment in the care and feeding of the child.
The indictment under which defendant was found guilty charged first degree murder. It was brought under ORS 163.010(1) which provides:
'Any person who purposely, and of deliberate and premeditated malice * * * kills another, is guilty of murder in the first degree.'
The charging portion of the indictment is as follows:
'* * * (T)he said MARY DAVIS on or about the 22nd day of March, A.D. 1967, in the County of Multnomah and State of Oregon, and being the mother of, and having the care and control of Matthew J. Davis, a minor child under the age of two years, did unlawfully, feloniously, and with deliberate and premeditated malice kill the said Matthew J. Davis by wilfully, purposely and maliciously failing and refusing to secure and provide the said Matthew J. Davis with the care, guidance and protection necessary for his physical, mental and emotional well-being * * *.'
Defendant demurred to the indictment on the ground that it did not substantially comply with ORS 132.520(2), 132.530 and 132.540(1)(f). These statutes set forth the requirements for indictments of 'conciseness, clarity and certainty.' State v. Taylor, 224 Or. 106, 109, 355 P.2d 603 (1960). The statutes read as follows:
ORS 132.520:
'The indictment * * * shall contain:
'* * *
'(2) 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.'
'The indictment must be direct and certain as to the party charged, the crime charged and the particular circumstances of the crime charged when such circumstances are necessary to constitute a complete crime.'
ORS 132.540:
'(1) The indictment is sufficient if it can be understood therefrom that:
'* * *
'(f) The act or omission charged as the crime is clearly and distinctly set forth in ordinary and concise language, without repetition, in such a manner as to enable a person of common understanding to know what is intended and with such a degree of certainty as to enable the court to pronounce judgment, upon a conviction, according to the right of the case * * *.'
The question raised is whether that part of the indictment setting forth the means allegedly employed by defendant in causing the death expressed those means sufficiently to enable defendant to prepare her defense.
'* * * 'The purpose of an indictment is to clearly and definitely apprise a person of the crime with which he is charged, in order that he may prepare his defense' * * *.' State v. Schriber, 185 Or. 615, 636, 205 P.2d 149, 158 (1949).
is sufficiently clear to advise the accused of the acts or failures to act which the state would attempt to prove. The quoted language above is taken from ORS 419.476(1)(e) relating to children within the jurisdiction of the juvenile court. It furnishes no guidelines as to what conduct on the part of a mother is necessary for the physical, the mental or the emotional well-being of her child. Charging a crime in the language of the statute has been upheld but the Supreme Court of Oregon has made clear that when it speaks of statutory recitals in indictments it is referring to recitals from the statute under which the defendant is charged. State v. Smith, 182 Or. 497, 188 P.2d 998 (1948). Defendant in this case was charged under ORS 163.010, the first degree murder statute.
In Smith, supra, the indictment charged defendant did
'* * * wilfully and unlawfully by force, threats and intimidations endeavor to prevent one Mike Rose from continuing and performing his work * * *.' 182 Or. at 499--500, 188 P.2d at 999.
The court stated generally that:
'* * * It is not sufficient * * * that the indictment undertake to describe the crime by the use of mere generic terms; it must 'descend to particulars' * * *.' 182 Or. at 502, 188 P.2d at 1000.
The indictment against defendant in no way descends to particulars. It does not state what omissions the state would attempt to prove as a proximate cause of the child's death. Defendant could be held accountable for every act or omission since the birth of the child which the jury might find came within the open-ended charge. It provides defendant with little help in making her defense without speculation and guesswork and little, if any, guidance for the trial court in determining what matters were or were not embraced by the charge.
The Supreme Court of Oregon has permitted indictments otherwise fatally indefinite to stand against the demurrer if the grand jury cannot charge more specifically. State of Oregon v. Dougherty, 4 Or. 200 (1871). But the grand jury must recite its inability in the indictment. State v. Schwensen, 237 Or. 506, 392 P.2d 328 (1964). The grand jury made no such recital in the present case.
In determining whether the indictment is sufficient against the demurrer, the state urges that this court should consider how the case progressed at trial. It is conceded that defendant was well represented and met all issues raised by the evidence introduced by the state. But that is not the test. Upon demurrer the validity of an indictment cannot be tested by what may happen at the trial but solely by what it charges within its four corners at the time it is considered by the court. The statute requires a statement of 'the particular circumstances of the crime charged when such circumstances are necessary to constitute a complete crime.' ORS 132.530. The indictment in this case did not meet this test. The demurrer filed herein specifically challenged the indictment under the above section and it was error to have overruled it.
Because this case must be sent back for further proceedings, if indicated, it seems important to discuss the other assignment of error which challenges the instruction on second degree murder. The court instructed as follows:
'A specific intent to kill is not a material element of the crime of second degree murder, but it is necessary to prove beyond a reasonable doubt that there was an intent and a purpose to pursue a specific course of conduct, and that the course of...
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State v. House
...evidence on the hearing of such a demurrer. State v. Green, supra. The principal case upon which the defendants rely is State v. Davis, 1 Or.App. 285, 462 P.2d 448 (1969). In that case the mother of the deceased child was charged with first degree murder for deliberately and maliciously "fa......
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State v. House
...by the majority of that court (at p. 1004, 485 P.2d 33, 35) in support of that contention is its previous decision in State v. Davis, 1 Or.App. 285, 462 P.2d 448 (1969), in which the mother of a child was charged with murder for 'failing and refusing to secure and provide (her child) with t......
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State v. Mitchell
...there was a new indictment. In deciding this question our inquiry is limited to the four corners of the indictment. See State v. Davis, 1 Or.App. 285, 462 P.2d 448 (1969). An indictment is presumed to have been duly returned by the grand jury. State v. Guse, 237 Or. 479, 392 P.2d 257 In all......
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State v. Mathie
...trial court is bound by the terms of the accusatory instrument. State v. Norton, 9 Or.App. 595, 497 P.2d 680 (1972); State v. Davis, 1 Or.App. 285, 462 P.2d 448 (1969). We are not here dealing with a problem of merging convictions. The indictment charged two crimes, not one. Apparently the ......