State v. Elkins

• Citation: 216 Or. 509,339 P.2d 715
• Parties: STATE of Oregon, Appellant, v. James B. ELKINS, H. E. Ferguson, Thomas E. Maloney and Joseph P. McLaughlin, Respondents.
• Decision Date: 27 May 1959
• Court: Supreme Court of Oregon

Page 715

339 P.2d 715

216 Or. 509

STATE of Oregon, Appellant, v. James B. ELKINS, H. E. Ferguson, Thomas E. Maloney and Joseph P. McLaughlin, Respondents.

Supreme Court of Oregon, In Banc.

Argued and submitted May 21, 1959.

Decided May 27, 1959.

Arthur G. Higgs, Asst. Atty. Gen., argued the cause for appellant. With him on the brief was Robert Y. Thornton, Atty. Gen.

Walter H. Evans, Jr., Portland, filed a brief for respondents Elkins and Ferguson.

Howard R. Lonergan, Portland, filed a brief for respondent Maloney.

David H. Fertig, Portland, filed a brief for respondent McLaughlin.

Before McALLISTER, C. J., and LUSK, WARNER, PERRY, SLOAN, O'CONNELL and MILLARD, JJ.

O'CONNELL, Justice.

This is an appeal by the state from a judgment of the circuit court for Multnomah County sustaining demurrers to the indictments returned against defendants in nine separate cases which were consolidated on appeal. All of the indictments charged the defendants with the same crime. The charging part of the indictment reads as follows:

'The said James B. Elkins, H. E. Ferguson, Thomas E. Maloney and Joseph P. McLaughlin, on or about the 23rd day of August, 1955, in the City of Portland, County of Multnomah and the State of Oregon then and there being, did then and there, and in conjunction with each other and with other persons to the Grand Jurors unknown, wilfully, wrongfully and unlawfully commit an act which grossly disturbed the public peace, openly outraged public decency, and was injurious to public morals of the people of the City of Portland, by then and there wilfully, wrongfully and unlawfully setting up and operating for gain an illegal bootlegging establishment known as the 829 Club at 829 Southwest Third Avenue, one of the public thoroughfares of said city, in which establishment persons congregated for the purpose of unlawfully drinking intoxicating liquors to the common nuisance and annoyance of all good citizens, contrary to the statutes in such cases made and provided and against the peace and dignity of the State of Oregon.'

The caption of the indictments contained a notation indicating that they were framed under ORS 161.310 which reads as follows:

'If no punishment is expressly prescribed for the act by the criminal statutes any person who willfully 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.'

It is conceded by the state that the indictment is insufficient to charge a crime under ORS 161.310. This concession is made because it is recognized that ORS 161.310 was designed to cover offenses against the public peace, health and morals not elsewhere made punishable under our statutes and which offenses were known at common law as 'indictable nuisances.' Barnett v. Phelps, 1920, 97 Or. 242, 191 P. 502, 11 A.L.R. 663. The state admits that the crime charged in the indictment was not an 'indictable nuisance' at common law. The state also admits that ORS 161.310 is not applicable because elsewhere in our statutes 'punishment is expressly prescribed for the act' alleged in the indictment.

The state argues that the reference to ORS 161.310 in the caption is not a fatal defect because the sufficiency of an indictment is determined by the averments in the charging part of the indictment and not the caption, and that the indictment before us charges a crime under ORS 471.620.

We have held, as the state contends, that an indictment may be good in spite of the error in designating the offense in the caption. State v. Briggen, 1924, 112 Or. 681, 231 P. 125; State v. Emmons, 1910, 55 Or. 352, 104 P. 882, 106 P. 451; State v. Jarvis, 1890, 18 Or. 360, 23 P. 251. This assumes, of course, that the charging part of the indictment so clearly alleges facts constituting a crime that the defendants would not reasonably be confused by the erroneous designation of the crime in the caption. State v. Doud, 1950, 190 Or. 218, 225 P.2d 400; State v. Smith, 1948, 182 Or. 497, 188 P.2d 998; State v. Coffman, 1943, 171 Or. 166, 136 P.2d 687.

ORS 132.530 commands that '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' and the indictment must be framed 'in such manner as to enable a person of common understanding to know what is intended.' ORS 132.520.

We must consider, then, whether the indictment sufficiently designates the crime which the state now alleges was committed in violation of ORS 471.620. That section reads as follows:

'Any room, house, building, boat, structure or place of any kind where alcoholic liquor is sold, manufactured, bartered or given away in violation of the law, or where persons are permitted to resort for the purpose of drinking alcoholic beverages in violation of the law, or any place where such beverages are kept for sale, barter or gift in violation of the law, and all liquor or property subject to confiscation under ORS 471.610 kept and used in such place is a common nuisance. Any person who maintains or assists in maintaining such common nuisance or knowingly...