State v. Ewing

Citation149 P.2d 765,174 Or. 487
PartiesSTATE <I>v.</I> EWING
Decision Date01 May 1944
CourtSupreme Court of Oregon
                  Evidence of other crimes in prosecution for sex offense, note
                63 A.L.R. 610. See, also, 48 Am. Jur. 552
                  22 C.J.S., Criminal Law, § 682
                

Before BAILEY, Chief Justice, and BELT, LUSK, BRAND and HAY, Associate Justices.

Appeal from Circuit Court, Grant County.

ROBERT M. DUNCAN, Judge.

Leland Stanford Ewing was convicted of sustaining osculatory relations with the private parts of a male person, and appeals.

REVERSED.

Charles W. Swan, of Vale, for appellant.

Blaine Hallock, of Baker (I.H. Van Winkle, Attorney General and J.M. Blank, District Attorney, of Canyon City, on the brief), for respondents.

BRAND, J.

The defendant was tried, found guilty, and sentenced upon an indictment, the charging part of which is as follows:

"`The said Leland Stanford Ewing on the 15th day of September, A.D., 1941 in the said County of Grant and State of Oregon, then and there being, did then and there unlawfully and feloniously and against the order of nature, have a certain venereal affair with a human being, to-wit: W.L. Miller, the said W.L. Miller being a male person, and the said Leland Stanford Ewing, did then and there sustain osculatory relations with the private parts of the said W.L. Miller, and so the said Leland Stanford Ewing did in the manner and form aforesaid, commit and perpetrate the detestable crime of sodomy, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.'"

Before the trial, the defendant had demurred to the indictment upon the alleged ground that more than one crime was charged therein. The overruling of that demurrer forms the basis upon which defendant makes his first assignment of error in this appeal.

BRAND, J.

1. The defendant contends that the indictment charges three distinct crimes: sodomy, sex perversion, and osculatory relationship. The assignment is without merit. The preliminary allegation in the indictment that on the 15th day of September the defendant did "have a certain venereal affair with a human being" et cetera, does not sufficiently allege any crime listed in our statutes. The only specific charge is to be found in that portion of the indictment which alleges that the defendant did "then and there" (referring to the time and place of the alleged "venereal affair") "sustain osculatory relations" with W.L. Miller, as more particularly set forth. The indictment continues "and so" (italics ours) the defendant did "in the manner and form aforesaid, commit * * *" the crime of sodomy. It is clear that the phrase, "in the manner and form aforesaid," refers to the specific charge which precedes it and cannot be construed as charging any other offense.

Whether the offense which was specifically charged comes within the common law definition of sodomy is immaterial. The statute provides:

"Sodomy. If any person shall commit sodomy or the crime against nature, or any act or practice of sexual perversity, either with mankind or beast, or sustain osculatory relations with the private parts of any man, woman or child, or permit such relations to be sustained with his or her private parts, such person shall upon conviction thereof, be punished by imprisonment in the penitentiary not less than one year nor more than fifteen years." O.C.L.A. § 23-910.

The indictment charges but one act which is within the specific prohibition of the statute. If the act charged was inaccurately called sodomy, the mistake is immaterial. However, in the case of State v. Start, 65 Or. 178, 132 P. 512, it was held...

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41 cases
  • Antoine v. Taylor
    • United States
    • Supreme Court of Oregon
    • November 24, 2021
    ......'s claims about inadequate notice should not have been raised in a demurrer and, instead, that petitioner "could have moved to discover the state's election of the specific criminal acts that the state would prosecute at trial, in time for [him] to tailor his defense to those specific ...Ewing , 174 Or. 487, 496, 149 P.2d 765 (1944) (so holding). That is, when read in context, the quoted statement from Hale could easily be seen as ......
  • State v. Dennis
    • United States
    • Supreme Court of Oregon
    • June 12, 1945
    ...... State v. Sullivan, 139 Or. 640, 11 P. (2d) 1054; State v. Evans, 143 Or. 603, 22 P. (2d) 496; State v. Christiansen, 150 Or. 11, 41 P. (2d) 442; State v. Gillis, 154 Or. 232, 59 P. (2d) 679; State v. Garner, 166 Or. 1, 108 P. (2d) 274; State v. Ewing, 174 Or. 487, 149 P. (2d) 765. .         16. The receipt in evidence of two photographs showing the position of the body of the deceased when found by the officers is assigned as error. This is another attempt to establish a rule for the exclusion of so-called "gruesome" evidence. It must ......
  • State v. Long
    • United States
    • Supreme Court of Oregon
    • May 21, 1952
    ...... State [195 Or. 113] v. Gillis, 154 Or. 232, 236, 59 P.2d 679; State v. Dennis, supra, 177 Or. 73, 124, 159 P.2d 838, 161 P.2d 670; State v. Ewing", 174 Or. 487, 497, 149 P.2d 765. This court has repeatedly quoted with approval the classic statement of Justice Brewer in State v. Adams, 20 Kan. 311, 319 as follows: . '* * * A party cannot, by multiplying his crimes, diminish the volume of competent testimony against him. * * *' .      \xC2"......
  • Antoine v. Taylor
    • United States
    • Supreme Court of Oregon
    • November 24, 2021
    ...by the state may be required when the evidence at trial shows multiple acts that could be the basis for the conviction); State v. Ewing, 174 Or. 487, 496, 149 P.2d 765 (1944) (so holding). That is, when read in context, the quoted statement from Hale could easily be seen as responsive to th......
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