State v. Dormitzer
Decision Date | 29 November 1927 |
Citation | 261 P. 426,123 Or. 165 |
Parties | STATE v. DORMITZER. |
Court | Oregon Supreme Court |
In Bank.
Appeal from Circuit Court, Coos County; John H. Stevenson, Judge.
Paul Dormitzer was convicted of embezzlement, and he appeals. Affirmed.
See also, 261 P. 428.
I. H Van Winkle, Atty. Gen., and J. B. Bedingfield, Dist. Atty of Bandon, for the State.
The defendant appeals from a conviction of the crime of embezzlement, and brings before the court the single question of the sufficiency of the indictment to charge a crime. The case has been submitted upon briefs, and the defendant states his grounds for appeal as follows:
Section 11, art. 1, Oregon Constitution, guarantees to every person accused of crime the right to "demand the nature and cause of the accusation against him, and to have a copy thereof." This provision of the fundamental law is peremptory; but such guarantee does not prevent the simplification of a criminal pleading by the abolition of verbiage and the technical forms of the ancient law.
What constitutes a sufficient indictment?
Section 1440, Oregon Laws, reads:
The foregoing sections are in fullest harmony with the above constitutional mandate.
Was the defendant fully advised of the offense charged, and does the indictment as drawn enable the court to pronounce judgment upon the defendant's conviction of embezzlement and to protect the defendant's right upon a second prosecution for the same offense? This question requires an examination of the statute defining the crime of embezzlement and of the language of the indictment charging a violation of that statute.
The offense of embezzlement was unknown to the common law, and is of statutory creation. State v. Coleman, 119 Or. 430, 249 P. 1049. For the reason that the statutes of some jurisdictions differ from ours, it is necessary to look to our own Code to determine the constituent elements of that offense. 20 C.J., § 2, Embezzlement. That portion of our statute applicable to the offense charged by the indictment reads:
"If any * * * agent, * * * of any person, * * * shall embezzle or fraudulently convert to his own use, * * * any money, * * * belonging wholly or in part to such person, * * * and which shall have come into his possession, * * * by virtue of such employment, such * * * agent * * * shall be deemed guilty of larceny." Or. L. § 1955.
This statute sets forth every fact essential to constitute the offense of embezzlement; and an indictment charging embezzlement which follows its language is sufficient. State v. Scott, 63 Or. 444, 128 P. 441, and cases there noted; 8 Stand. Encyc. of Proced. p. 221.
The indictment in question appears to have been hurriedly drawn, and contains many surplus words. Shorn of surplusage, the charging part thereof reads:
"The said Paul Dormitzer, on the 24th day of March, 1927, in the county of Coos and state of Oregon, then and there being, * * * and then and there being an * * * agent of Ben Brown, there did then and there come into his possession, * * * by virtue of his employment as such * * * agent, * * * lawful money of the United States of America, * * * a more particular description * * * of which * * * being to the grand jury unknown, * * * of the value of $100, all being the property of the said Ben Brown, the said Paul Dormitzer, then and there so having in his possession, * * * as such * * * agent, * * * the said property of the said Ben Brown, did then and there unlawfully and feloniously embezzle and fraudulently convert the same to his own use."
Stripping an indictment of surplus words does not vitiate the charge contained therein. This has been the holding of our court from early times to the present day. Burchard v State, 2 Or. 78; State v. Abrams, 11 Or. 169, 8 P. 327; State v. Tom...
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Smallman, Application of
...§ 43, p. 175. The defendant cites State v. Branton, 49 Or. 86, 87 P. 535; State v. Rosasco, 103 Or. 343, 205 P. 290; State v. Dormitzer, 123 Or. 165, 261 P. 426; State v. Burke, 126 Or. 651, 269 P. 869, 270 P. 756. These cases merely set forth the rule as established by constitution and sta......
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State v. Waterhouse
...and sufficient allegations remain to sustain a conviction, then the demurrer to the indictment is properly overruled. State v. Dormitzer, 123 Or. 165, 169, 261 P. 426; State v. Emmons, 55 Or. 352, 358, 104 P. 882, 106 P. 451; State v. Humphreys, 43 Or. 44, 48, 70 P. 824. However, in those c......
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State v. Jackson
...may be disregarded since it plainly did not mislead the defendant. State v. Du Bois, 1944, 175 Or. 341, 153 P.2d 521; State v. Dormitzer, 1927, 123 Or. 165, 261 P. 426; State v. Humphreys, 1902, 43 Or. 44, 70 P. While ORS 167.150(1) makes use of the various descriptive terms 'obscene,' 'ind......
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State v. Taylor
...or 76-17-7, U.C.A.1953. 1 Utah Constitution, Art. I, Sec. 12. See also Boynton v. Sacks, Ohio, 184 N.E.2d 377 (1962); State v. Dormitzer, 123 Or. 165, 261 P. 426 (1927); State v. Courtney, 10 Utah 2d 200, 350 P.2d 619 (1960); and State v. Myers, 5 Utah 2d 365, 302 P.2d 276 (1956).2 For disc......