State v. Huennekens

• Decision Date: 23 November 1966
• Citation: 420 P.2d 384,245 Or. 150
• Parties: The STATE of Oregon, Appellant, v. Richard Lee HUENNEKENS, Respondent.
• Court: Oregon Supreme Court

Page 384

420 P.2d 384

245 Or. 150

The STATE of Oregon, Appellant, v. Richard Lee HUENNEKENS, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted Oct. 4, 1966.

Decided Nov. 23, 1966.

Jacob B. Tanzer, Deputy Dist. Atty., Portland, argued the cause for appellant. On the brief were George Van Hoomissen, Dist. Atty., and George M. Joseph, Deputy Dist. Atty., Portland.

William E. Hurley, Portland, argued the cause for respondent. On the brief were Bernard, Bernard & Hurley, Portland.

Before McALLISTER, C.J., and PERRY, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.

SLOAN, Justice.

Defendant was charged in an indictment which contained two counts as follows:

"COUNT I.

"RICHARD LEE HUENNEKENS is accused by the Grand Jury of the county of Multnomah and the State of Oregon, by this indictment of the crime of RAPE committed as follows:

"The said RICHARD LEE HUENNEKENS on or about the 24th day of March, A.D. 1966, in the County of Multnomah and State of Oregon, did unlawfully and feloniously forcibly ravish one Delores Marie Andersen, a female, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.

"COUNT II.

"Further, for and as a part of the same act and transaction alleged and hereinabove set forth in Count I of this indictment and connected therewith, he, the said RICHARD LEE HUENNEKENS, is accused by the Grand Jury of the County of Multnomah and State of Oregon, by this indictment, as hereinafter set forth in this said count, of the crime of SODOMY committed as follows:

"The said RICHARD LEE HUENNEKENS on or about the 24th day of March, 1966, in the County of Multnomah and State of Oregon, did unlawfully and feloniously sustain osculatory relations with the private parts of one Delores Marie Andersen, contrary to the Statutes, in such cases made and provided, and against the peace and dignity of the State of Oregon."

Defendant demurred to the indictment. The trial court held that the two counts were improperly joined and sustained the demurrer. The state appeals, contending that the statute (ORS 132.560) permits the joining.

Before 1933 the statute restricted an indictment to one crime. Since an amendment of that date the statute has read:

'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.'

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. The Washington court, where the statute uses more liberal language of joinder than ours, has stated the idea as directly and simply as any by saying that 'They must be held * * * (as) part of the same transaction where evidence of one includes evidence of the other.' State v. Winters, 1951, 39 Wash.2d 545, 236 P.2d 1038, 1042. This language is approved and repeated in State v. Courville, 1963, 63 Wash.2d 498, 387 P.2d 938, 940. In Pointer v. United States, 1894, 151 U.S. 396, 14 S.Ct. 410, 413, 38 L.Ed. 208, at 212, a case involving a Federal statute, also more liberal than our own, the court said 'There was such close connection between the two killings in respect of time, place, and occasion that it was difficult, if not impossible, to separate the proof of one charge from the proof of the other.' In Drew v. United States (1964), 118 U.S.App.D.C. 11, 331 F.2d 85, at page 90 (Footnote), after reviewing the purpose and hazards of joinder and of the rules relating to evidence of other crimes in separate trials as...