State v. Fitzgerald

Decision Date13 December 1973
Citation267 Or. 266,516 P.2d 1280,98 Or.Adv.Sh. 171
PartiesSTATE of Oregon, Respondent, v. Jeffrey Edward FITZGERALD, Appellant.
CourtOregon Supreme Court
John K. Hoover, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen.

McALLISTER, Justice.

Defendant was charged in a single indictment with escape from custody and with the unauthorized use of a vehicle. His timely attempts to have the two offenses severed for trial were denied and he was convicted on both counts and sentenced to a five-year prison term for each The evidence concerning the escape established that at about 4:30 a.m. on June 6, 1972, defendant escaped from the Yamhill County jail in McMinnville where he was being held in custody. At about 9 o'clock, a.m., a jailer discovered the absence of defendant and one Gerald Cooley, who had escaped with him. The men had sawed the bars of their cell and climbed to the roof through a ventilating duct. The escape was completed when the men jumped from the roof and left the vicinity.

offense. The sole issue on appeal is whether the two offenses were properly joined for trial.

The evidence concerning the unauthorized use of the vehicle established that an MGB vehicle owned by Sue Ann Sayers was taken without her consent from in front of her home in Newberg sometime after 11 p.m. on June 6. At about 6 o'clock, a.m., on June 7, the owner of the Flying M Ranch in Yamhill county saw the car driven onto his ranch and parked near his horse corral. He later saw defendant asleep in the driver's seat of the car with Cooley asleep beside him. The rancher called the police who took the two men into custody.

The indictment charged the defendant with both offenses in separate counts as follows:

INDICTMENT

ORS 162.155

ORS 164.135

'COUNT I

'The said Jeffrey Edward Fitzgerald, on or about the 6th day of June, 1972, in the County of Yamhill, State of Oregon, then and there being, did then and there knowingly and unlawfully escape from the Yamhill County Jail, a correctional facility; said act of defendant being contrary to the statutes in such cases made and provided and against the peace and dignity of the State of Oregon.

'COUNT II

'As part of the same transaction as contained in Count I herein, the said Jeffrey Edward Fitzgerald, on or about the 7th day of June, 1972, in the County of Yamhill, State of Oregon, then and there being, did then and there knowingly and unlawfully operate and ride in a vehicle, to-wit: a 1965 MGB, Oregon License No. JBX--035, the property of Sue Ann Sayers, without the consent of the owner thereof, the said Sue Ann Sayers; said act of defendant being contary to the statutes in such cases made and provided and against the peace and dignity of the State of Oregon."

This case is controlled by ORS 132.560, which reads as follows:

'The indictment must charge but one crime, and in one form only, except that:

'(1) Where the crime may be committed by the use of different means, the indictment may allege the means in the alternative.

'(2) When there are several charges against any person or persons for the same act or transaction, instead of having several indictments, the whole may be joined in one indictment in several counts; and if two or more indictments are found in such cases, the court may order them to be consolidated."

Defendant originally demurred to the indictment on the ground that it charged more than one crime contrary to ORS 132.560(2) in that the separate charges were not "for the same act or transaction". The demurrer was overruled.

At the outset of the trial the defendant moved for a mistrial because of the alleged misjoinder and in the alternative that the state be required to elect between Count I and Count II of the indictment. Both motions were denied. After the state had rested, the motion for a mistrial was renewed and again denied. The overruling of the demurrer and the overruling of the motion to elect and the motions for a mistrial are all assigned as error by defendant.

Prior to 1933, ORS 132.560 permitted an indictment to charge but one crime, and in one form only. Section 2 of ORS 132.560 as quoted above was added by Chapter 40, Oregon Laws 1933, and permits the joinder of several charges 'for the same act or transaction.'

It may be well to point out that our legislature, in adopting section two of ORS 132.560 clearly intended to narrowly limit the circumstances under which joinder would be allowed. The original bill, House Bill 277, was broadly drawn to permit joinder:

'* * * when there are several charges against any person, or persons, for the same act or transaction, [DELETED: or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses which may be properly joined,] instead of having several indictments, the whole may be joined in one indictment in several counts; and if two or more indictments are found in such cases, the court may order them to be consolidated. * * *' (Emphasis added.)

The language italicized above, which is common in the statutes of other states, was deleted and the act passed in the narrow form quoted supra.

According to Appendix A, Standards Relating to Joinder and Severance, ABA Project on Minimum Standards for Criminal Justice (Approved Draft, 1968), only two other states have rules as narrow as Oregon's 'same transaction.' Iowa Code Ann. § 773.37 (1966) allows joinder of 'compound offenses where in the same transaction more than one offense has been committed.' Illinois Ann.Stat. c. 38, § 111--4 (1963) allows joinder of offenses based on "two or more acts which are part of the same comprehensive transaction."

The Oregon approach then is not to join whenever possible and then sever if prejudicial to the defendant, but, rather, to strictly limit joinder in the first place.

State v. Huennekens, 245 Or. 150, 420 P.2d 384 (1966), was the first case dealing with ORS 132.560, as amended in 1933. The holding in that case decided only that the court did not err in overruling defendant's demurrer to the indictment. The court said:

'This is the first multiple count indictment case to reach this court since the statute was amended. And in this case it is only necessary to decide if the demurrer should have been sustained. Consequently, it is not necessary now to attempt to answer the more abstract question of the definitional limits of 'the same act or transaction.' The decisions indicate it is not possible, in any given case, to find an ultimate definition.

'For our immediate purpose here it is sufficient to say that the idea permeates the cases that to be joined the charges must relate to conduct or acts that are concatenated in time, place and circumstances and that the evidence of one charge would be relevant and admissible with the evidence of other charges. * * *' 245 Or. at 152, 420 P.2d at 385.

Unlike Huennekens, it is necessary in this case to determine the meaning of 'the same act or transaction,' at least as applied to the...

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