State v. Foss

• Decision Date: 16 May 1962
• Citation: 230 Or. 579,371 P.2d 564
• Parties: STATE of Oregon, Respondent, v. William Chester FOSS and Erwin Wayne Speers, Appellants.
• Court: Oregon Supreme Court

Page 564

371 P.2d 564

230 Or. 579

STATE of Oregon, Respondent, v. William Chester FOSS and Erwin Wayne Speers, Appellants.

Supreme Court of Oregon, Department 1.

Argued and Submitted March 9, 1962.

Decided May 16, 1962.

Elliott B. Cummins, McMinnville, argued the cause for appellant Erwin Wayne Speers.

Francis E. Marsh, McMinnville, argued the cause for appellant William Chester Foss.

On the brief for appellants were Francis E. Marsh and Elliott B. Cummins, McMinnville.

James E. Craig, Dist. Atty., for Yamhill County, McMinnville, argued the cause and submitted the brief for respondent.

Before McALLISTER, C. J., and ROSSMAN, PERRY, and GOODWIN, JJ.

ROSSMAN, Justice.

These are appeals, one each, by the defendants, William Chester Foss and Erwin Wayne Speers, from judgments which the circuit court entered against them after each had entered a plea of not guilty to the indictment, which we will presently quote, and a jury had returned a verdict of guilty against each of them. The indictment charged each of the defendants with the crime of burglary not in a dwelling, as proscribed by ORS 164.240. The defendants have consolidated the two appeals.

The defendants' single assignment of error reads:

'The court erred in denying defendants' motion for a judgment of acquittal at the close of the plaintiff's case and after the defendant had rested, and erred in denying defendants' motion in arrest of judgment finding that the indictment stated facts sufficient to constitute a crime.'

The defendants presented no evidence and their counsel no argument.

The joint brief filed by the two defendants states:

'This appeal presents but one question for decision, namely, does the indictment allege sufficient facts to constitute a crime. The sufficiency of the indictment involves certain subsidiary questions. They are as follows:

'1. Does the indictment allege the character of the building allegedly entered as a dwelling or as a building other than a dwelling?

'2. Does the indictment sufficiently locate or identify said building?

'3. Is the failure of the indictment to allege the ownership of said building fatal?'

The indictment charged:

'William Chester Foss and Erwin Wayne Speers are accused by the Grand Jury of Yamhill County, State of Oregon, by this indictment of the crime of burglary committed as follows:

'The said William Chester Foss and Erwin Wayne Speers on the 20th day of March, 1961, in the County of Yamhill, State of Oregon, then and there being, and then and there acting jointly and cooperating together, did then and there unlawfully and feloniously break and enter, by forcibly breaking in the back door, a certain building other than a dwelling known as Inloes Motor Building, situated on Portland Road, near Newberg, Yamhill County, Oregon, in which said building there was at said time kept certain personal property, with the intent then and there on the part of them, and each of them, to steal therein and to commit the felony of larceny therein, contrary to the statutes and such cases made and provided and against the peace and dignity of the State of Oregon.'

ORS 164.240, which was Oregon Laws 1959, Chapter 99, page 12, proscribes the crime which is charged in the indictment; it follows:

'Any person who breaks and enters any building within the curtilage of any dwelling house, but not forming a part thereof, or breaks and enters any building or part thereof, booth, tent, railroad car, vessel, boat, or other structure or erection in which any property is kept and which is not a dwelling house, with intent to steal or to commit any felony therein, is guilty of burglary and shall be punished upon conviction by imprisonment in the penitentiary for not more than 10 years.'

ORS 164.230 confines itself to the crime of burglary committed in 'any dwelling house.'

It will be noticed from the indictment, which we quoted, that it charges that each defendant broke into and entered 'a certain building other than a dwelling' and that the building into which they entered was 'known as Inloes Motor Building.' Further, it avers that the building which the defendants entered was situated in Yamhill County 'near Newberg' and 'on Portland Road.'

Neither of the defendants challenged the indictment by demurrer; nor did either of them seek further particulars as may be done under ORS 135.630(2). Neither employed any plea except one of not guilty. The transcript of evidence makes no intimation that either defendant experienced any difficulty during the trial with the indictment. Neither made any claim that the indictment gave him insufficient information to enable him to defend himself. The indictment sufficiently identifies the crime to render it impossible for a second prosecution to occur.

In State v. Wright and Allen, 19 Or. 258, 24 P. 229, the indictment for the crime of burglary did not mention the name of the owner of the structure; the latter was a granary. After their conviction the defendants moved in arrest of judgment on the ground that an indictment for burglary must disclose the name...