State v. Howard

• Decision Date: 19 November 1958
• Citation: 331 P.2d 1116,214 Or. 611
• Parties: STATE of Oregon, Respondent, v. Harold Kipling HOWARD, Appellant.
• Court: Oregon Supreme Court

Page 1116

331 P.2d 1116

214 Or. 611

STATE of Oregon, Respondent, v. Harold Kipling HOWARD, Appellant.

Supreme Court of Oregon.

Argued and Submitted Oct. 1, 1958.

Decided Nov. 19, 1958.

William Huey and Clarence Barrett, Jr., Eugene, argued the cause and filed a brief for appellant.

George J. Woodrich and Kenneth A. Morrow, Deputy Dist. Attys. for Lane County, Eugene, argued the cause for respondent. With them on the brief was Eugene C. Venn, Dist. Atty. for Lane County, Eugene.

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

O'CONNELL, Justice.

On December 6, 1957 an indictment was returned by the grand jury of Lane County against the defendant, charging him with the crime of sodomy in violation of ORS 167.040. The indictment charged that on September 27, 1957 the defendant sustained osculatory relations with the private parts of Robert Allen Jewell. The defendant pleaded 'not guilty.' When the cause came on for trial the defendant moved that the State be required to elect a specific day upon which the alleged offense occurred. The State elected to prove that the crime occurred on August 1, 1957. Jewell testified that the last time the offense had been committed was three or four weeks prior to September 7, 1957; that similar acts had occurred ten or twelve times during the preceding four years; that the act had occurred three times in 1957 and that these acts occurred from two to four months apart. He testified that during the investigation he had stated that the act charged in the indictment had occurred on September 27, 1957 but that this act did not amount to sodomy because there was no penetration. He then stated that the act charged in the indictment had occurred 'around the first of August', and on further questioning stated 'it was pretty close to the first, I would say about the first week. It was pretty close to the first of the month.' Later in the trial counsel objected to the testimony of James Lovewell, a deputy sheriff, on the ground that the State had not established a definite date for the commission of the act charged. The objection was sustained and the State's attorney was called upon by the trial court to make an election, in response to which he elected to stand on 'a time at the first of August.' Later, outside of the presence of the jury the State's attorney stated that he elected to prove that the act complained of occurred during the first week of August.

Lovewell testified that the defendant admitted orally that the last time he committed sodomy with Jewell was in 'July or August, I don't remember.' At the conclusion of the State's case the defendant moved for a directed verdict of acquittal on the ground that the plaintiff's election to stand on the first week in August 1957 as the date upon which the offense was committed was not a valid election for the reason that the election must be of a definite day; that the period elected was too far removed from the date of the indictment; and that there was no competent evidence that the crime charged in the indictment occurred during the first week in August 1957. The motion was denied. The cause was submitted to the jury which returned a verdict finding the defendant guilty of the crime charged in the indictment. The defendant then moved for a judgment notwithstanding the verdict, or in the alternative an order granting the defendant a new trial.

As grounds for this motion the defendant alleged that the date elected by the State did not conform to the date alleged in the indictment; that the variation between the date elected and the date in the indictment was excessive; and that as a result of the State's failure before trial to apprise the defendant of the date elected the defendant was deprived of an opportunity to prepare his defense adequately. The motion was denied.

The defendant assigns as error the trial court's refusal to grant the motions requested. The defendant relies upon the rule that when time is an essential ingredient of a crime the precise time at which the crime was committed must be laid with exactness in the indictment and must be proved as laid. Clark, Criminal Procedure, 2d Ed., § 95. There is no doubt that this is a correct statement of the law. But this rule is applicable only if time is a material ingredient of the crime. ORS 132.610 makes this clear:

'The precise time at which the crime was committed need not be stated in the indictment, but it may be alleged to have been committed at any time before the finding thereof and within the time in which an action may be commenced therefor, except where the time is a material ingredient in the crime.'

We hold that time is not a material ingredient of the crime of sodomy within the meaning of the statutory exception. The exception relates to those crimes in which time is a significant factor, i. e., where the act is a crime if committed at one time but not if committed at some other time. Thus if a statute should make it a crime to sell liquor on Sunday, time is a material ingredient, because a sale at any other time does not constitute a violation of the statute. See State v. Goddard, 1914, 69 Or. 73, 133 P. 90, 138 P. 243. But sodomy is sodomy, irrespective of the precise time when the act is committed. In this respect it is similar to the crime of rape, and it has been held that time is not a significant part of the latter crime. State v. Goddard, supra.

Since time is not an essential ingredient of the crime of sodomy the State was not required to prove that the act of sodomy relied upon as a violation of ORS 167.040 was committed on September 27,...