State v. Gilbert
| Decision Date | 31 January 1978 |
| Citation | 574 P.2d 313,281 Or. 101 |
| Parties | STATE of Oregon, Respondent, v. James W. GILBERT, Petitioner. |
| Court | Oregon Supreme Court |
William F. Frye, Eugene, argued the cause and filed briefs, for petitioner.
John W. Burgess, Asst. Atty. Gen., Salem, argued the cause, for respondent. With him on the briefs were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.
The trial court dismissed indictments for theft on the ground that prosecution of the defendant was barred because of state and federal constitutional prohibitions against putting one in jeopardy twice for the same offense. The Court of Appeals reversed with a dissent by the Chief Judge. 27 Or.App. 1, 555 P.2d 31 (1976). We granted review and affirm.
The defendant was indicted for theft in six separate indictments. Indictment 75-2601 read:
"The above named defendant is accused by the Lane County Grand Jury of the crime of THEFT IN THE FIRST DEGREE committed as follows: The defendant on or about the 26th day of March, 1975, in the county aforesaid, did knowingly and unlawfully commit theft of an Inland brand .30 caliber rifle, a firearm, owned by Lawrence H. Kane; contrary to statute and against the peace and dignity of the State of Oregon."
The other five indictments were identical, including the date, except the firearm described and the owner of the firearm were different in each indictment.
Pursuant to the suggestion made in State v. Bishop, 16 Or.App. 310, 314, 518 P.2d 177 (1974), and adopted in State v. Boyd, 271 Or. 558, 533 P.2d 795 (1975), the state moved to consolidate the indictments for trial. The defendant opposed the motion. At argument on the motion, the trial court stated that if the state were going to proceed on the theory that the defendant's criminal conduct consisted of theft by withholding stolen property; that is, withholding all of the firearms at one common time and place, then it would grant the motion to consolidate. But if the state were going to proceed on the theory that the defendant's criminal conduct consisted of theft by receiving the firearms at various times, the court indicated it would not consolidate. The state did not desire to elect between theories. However, in view of the trial court's position, the state elected to proceed on the theory that the defendant's criminal conduct consisted of theft by withholding all the firearms at the same time and place. The trial court then denied the motion to consolidate. The trial court's reason for changing its decision is not clearly stated in the record; however, it appears that it decided that the defendant had the option of having separate trials.
The defendant went to trial on the indictment quoted above. The evidence showed that the police obtained a search warrant and seized all of the firearms named in the six indictments on one occasion at the defendant's home. The defendant did not contend they had not been stolen. His defense was that he purchased them without knowledge that they had been stolen. The evidence was that defendant purchased the firearms named in the six indictments on different dates.
The jury acquitted the defendant. We have no record of the trial other than the defendant's testimony. We do not have the instructions and do not know on what theory the case was submitted to the jury.
In the present case the defendant contends: The state made the election to proceed with all six indictments on the theory that the criminal conduct was withholding the firearms and the withholding occurred at the same time and place. This conduct constitutes but one offense. The defendant was acquitted of the charge of withholding the one firearm specified in the indictment. The prohibition against putting a defendant in jeopardy twice bars further prosecution for the possession of the other firearms because their withholding was part of the same offense for which defendant was acquitted.
The state answers that the withholding of six different firearms belonging to six different persons constitutes six different offenses.
The state also contends the elections made by the state that it would proceed on the withholding theory was made only because the trial court said it would consolidate the indictments for trial if the state proceeded on that theory. The trial court denied consolidation and the state is therefore not bound by its election. Assuming that the case in which there was an acquittal was tried on the basis of withholding, the state is now at liberty to try the remaining indictments on the basis of receiving. The defendant admitted he received the firearms at different times and each receipt constitutes a separate offense.
Before attempting to analyze the problems raised, we believe this area of the law is so complex that we should state what is not involved. We do not confront the problem of whether the defendant's conduct constituted one "criminal episode" or was one "transaction." Therefore, we do not have a compulsory joinder problem. ORS 131.515(2). State v. Brown, 262 Or. 442, 497 P.2d 1191 (1972), and State v. Boyd, supra (271 Or. 558, 533 P.2d 795), are not involved. The state properly averted this problem by moving to consolidate. 1
In 1971, the legislature drastically changed the Oregon law on the illegal taking and holding of property. Formerly Oregon had statutes making larceny, embezzlement, etc., separate crimes. ORS 164.015 was enacted. It provides:
The legislature defined in detail certain kinds of theft referred to in ORS 164.015(2)-(5) above. For example, ORS 164.095 provides:
At the same time the legislature provided, "conduct denominated theft under ORS 164.015 constitutes a single offense." ORS 164.025(1). The same section provides that an indictment is sufficient if "it alleges that the defendant committed theft of property of the nature or value required for the commission of the crime charged without designating the particular way or manner in which the theft was committed." ORS 164.025(2). The reasons for the changes and more detail on the changes are found in State v. Jim/White, 13 Or.App. 201, 508 P.2d 462 (1973).
As stated, the prosecution contends that even if the state is bound by its election to try the remaining indictments on the theory that the defendant committed theft by withholding, they charge offenses different from that for which defendant was acquitted. This poses the initial question, does conduct of the accused consisting of having withheld at the same time and place six different firearms, stolen from six different persons, constitute one offense of theft by withholding or six different offenses.
This court and others have stated that whether a single act can constitute several offenses depends upon what the legislature intended. 3 Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955). State v. Welch, 264 Or. 388, 390, 505 P.2d 910 (1973) (multiple punishments). That was the approach taken by the Court of Appeals in this case. The intent of the legislature is seldom obvious. Therefore, when the court thinks it would be unfair to permit the defendant's conduct to be divided into several offenses, the court will not approve the division unless the legislature has clearly provided that it can be divided. State v. Welch, supra (264 Or. at 394, 505 P.2d 910).
Oregon, like most jurisdictions, has held that an act of larceny by stealing the property of several persons, committed at the same time and place, constitutes but one offense. State v. Clark, 46 Or. 140, 80 P. 101 (1905); 37 A.L.R.3d 1407, Annotation, "Single or Separate Larceny Predicated Upon Stealing Property from Different Owners at the Same Time." Based upon these decisions it has also been held that the withholding at the same time and place of the property of different persons would also constitute only one offense of theft. State v. Clark, 9 Or.App. 530, 533-535, 497 P.2d 1210 (1972). The California Supreme Court has so held under a unified theft statute similar to that adopted in Oregon. People v. Bauer, 1 Cal.3d 368, 82 Cal.Rptr. 357, 461 P.2d 637, 37 A.L.R.3d 1398 (1969), cert. den. 400 U.S. 927, 91 S.Ct. 190, 27 L.Ed.2d 187 (1970).
The state contends, however, that the rule of State v. Clark, supra (46 Or. 140, 80 p. 101), including its extension to the crime of withholding, has been changed by statute. ORS 131.505 of the new Code of Criminal Procedure, passed in 1973, provides:
The act of withholding the six guns at the same time and place constitutes "the same conduct."
The withholding of...
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Jones v. State
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