State v. Humphreys

CourtSupreme Court of Oregon
Writing for the CourtMOORE, C.J.
Citation70 P. 824,43 Or. 44
PartiesSTATE v. HUMPHREYS.
Decision Date15 December 1902

70 P. 824

43 Or. 44

STATE
v.
HUMPHREYS.

Supreme Court of Oregon

December 15, 1902


Appeal from circuit court, Marion county; George H. Burnett, Judge.

A.M. Humphreys was convicted of larceny, and appeals. Affirmed.

[43 Or. 45] W.H. Holmes and S.T. Richardson, for appellant.

J.N. Hart, Dist. Atty., and J.H. McNary, Dep. Dist. Atty., for the State.

MOORE, C.J.

The defendant, A.M. Humphreys, was accused by the district attorney of the crime of larceny of bailee, alleged in the information to have been committed as follows: "The said A.M. Humphreys, on the 30th day of March, 1901, in the county of Marion and state of Oregon, then and there being the bailee with hire of 204 bushels of wheat, the same being then and there the personal property of one E.T. Hall, of the value of $102, did then and there wrongfully, unlawfully, and feloniously [70 P. 825] fail, neglect, and refuse to keep or account for the said wheat according to the nature of his trust, the said wheat having been theretofore delivered and intrusted to the said A.M. Humphreys, as such bailee, by the said E.T. Hall, as bailor, by then and there wrongfully, unlawfully, and feloniously taking, stealing, and carrying away, and embezzling and converting said wheat to his, the said A.M. [43 Or. 46] Humphreys, own use, contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Oregon." A demurrer on the following grounds: "First, that the information in this cause does not substantially conform to the requirements of chapter 8 of the Criminal Code of the State of Oregon; second, that more than one crime is charged in this information; third, that the facts stated in the information in this cause do not constitute a crime; fourth, that the information in this cause contains matter, which, if true, would constitute a legal justification and excuse of the crime charged and other legal bar to the action,"--having been interposed and overruled, the defendant entered a plea of not guilty, and, a trial being had, he was found guilty as charged, and sentenced to imprisonment in the penitentiary for the term of two years, from which judgment he appeals.

The information having alleged that the defendant "did then and there wrongfully, unlawfully, and feloniously fail, neglect, and refuse to keep or account for the said wheat," it is contended by his counsel that the use of the word "or" in the language quoted violates section 1273, Hill's Ann.Laws Or., which provides that the indictment must charge but one crime, and in one form only. The statute which the defendant is charged with violating, so far as deemed applicable herein, is as follows: "If any bailee, with or without hire, shall embezzle, or wrongfully convert to his own use, or shall secrete, with intent to convert to his own use, or shall fail, neglect, or refuse to deliver, keep, or account for, according to the nature of his trust, any money or property of another delivered or intrusted to his care or control, and which may be the subject of larceny, such bailee, upon conviction thereof, shall be deemed guilty of larceny, and punished accordingly." Hill's Ann.Laws Or. § 1771. If the information contained no other averments[43 Or. 47] of the facts constituting the commission of the alleged crime, the legal principles insisted upon would probably be applicable, for the rule is nearly universal that, when a statute enumerates several acts in the alternative, the doing of any of which is subjected to the same punishment, all such acts, when not repugnant to each other, may be charged cumulatively as one offense, by using the copulative "and" where "or" appears in the statute; but where the latter word is so used in the sense of "to wit," or as indicating that the terms preceding and following are synonymous, it is unnecessary to observe the distinction in the manner of enumerating the several acts constituting the alleged crime, in which case the disjunctive "or" may be used in the information or indictment in the same manner as it appears in the statute. 10 Enc.Pl. & Prac. 490, 536; State v. Carr, 6 Or. 133; State v. Bergman, Id. 341; State v. Dale, 8 Or. 229. Our statute prescribing the method of alleging facts constituting the commission of crimes contains the following provisions: "All the forms of pleading in criminal actions heretofore existing are abolished: and hereafter, the forms of pleading, and the rules by which the sufficiency of pleadings is to be determined, are those prescribed by this code." Hill's Ann.Laws Or. § 1266. "The indictment must contain,--*** 2. A statement of the acts constituting the offense, in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended." Id. § 1268. "The indictment must be direct and certain, as it regards,--1. The party charged; 2. The crime charged; and, 3. The particular circumstances of the crime charged when they are necessary to constitute a complete crime." Id. § 1271. In applying these liberal rules to the method of charging the acts constituting the commission of crimes, it is [43 Or. 48] quite well settled that an allegation in an indictment, which is not necessarily descriptive of the offense, may be regarded as surplusage, and rejected, without vitiating the pleading, if enough remains to constitute a valid charge. 10 Enc.Pl. & Prac. 530; Burchard v. State, 2 Or. 78; State v. Horne, 20 Or. 485, 26 P. 665; State v. Lee, 33 Or. 506, 56 P. 415. Applying this rule to the averments of the information, we believe that the following part thereof was not descriptive of what was legally essential to the charge, and might properly be stricken therefrom as surplusage, without vitiating the pleading, to wit: "Did then and there wrongfully, unlawfully, and feloniously fail, neglect, and refuse to keep or account for the said wheat according to the nature of his trust;" the remaining averments being descriptive of the acts constituting a violation of the statute, the material part of which, so far as this information is concerned, is as follows: "If any bailee *** shall embezzle, or wrongfully convert to his own use, *** any *** property of another delivered or intrusted to his care or control, *** such bailee, upon conviction thereof, shall be deemed guilty of larceny, and punished accordingly." Hill's Ann.Laws Or. § 1771. It will be observed that the parts of the statute last quoted enumerate several acts in the alternative, the doing of any of which is deemed larceny, and a conviction thereof subjects the offender to the punishment prescribed for the commission of that crime. It will be remembered that, omitting the surplus words [70 P. 826] of the information, it charges the commission of embezzlement and conversion of the wheat delivered to the defendant as bailee cumulatively as one offense, but, the pleader having adopted the copulative "and" where the disjunctive "or" occurs in the statute, the information conforms to the rule prescribed.

It is urged in defendant's behalf that the information charges the commission of three distinct offenses, to wit; [43 Or. 49] larceny by bailee, embezzlement, and simple larceny, and that, having interposed a demurrer on the ground of the duplicity, the court erred in overruling it. If it be assumed that these several crimes are charged by the information, they are generic in character, and differ only in degree of aggravation, in which the greater necessarily includes the less, and, as each is deemed larceny by the statute, and a bailee convicted thereof punished accordingly, and, as the value of the property alleged to have been taken, embezzled, and converted, is stated, it follows that a verdict of guilty as charged in the information renders the offender subject to the punishment prescribed for the commission of grand larceny. State v. Hanlon, 32 Or. 95, 48 P. 353; State v. Savage, 36 Or. 191, 60 P. 610, 61 P. 1128. In State v. Thompson, 28 Or. 296, 42 P. 1002, the defendant having been charged as "bailee and trustee" of certain property, which it was alleged he feloniously embezzled and unlawfully converted to his own use, in violation of Hill's Ann.Laws Or. § 1771, it was contended in his defense that the indictment charged two offenses, to wit, larceny by bailee and conversion by trustee; but it was held that the point insisted upon was without merit, Mr. Chief Justice Bean saying: "The objection to the indictment is untenable. It is in the language of the statute, and does ont charge more than one crime." In the case at bar it was not alleged that the compensation which the defendant was to receive for his care of the property had been paid or tendered; but, as he was charged as bailee of wheat for hire, it is contended that the information does not state facts sufficient to constitute a crime, and that, a demurrer having been interposed on that ground, the court erred in not sustaining it. In overruling the demurrer the court must have treated as unnecessary that part of the information hereinbefore adverted[43 Or. 50] to as surplusage, and, this being so, the averment that defendant was a bailee for hire became immaterial, and might also have been rejected for the same reason. If the gravamen of the action had been an alleged failure to account for the wheat of which the defendant was the bailee for hire, an averment of the payment or tender of the compensation agreed upon for its care might possibly have been necessary; but the information having alleged that he feloniously took, stole, carried away, embezzled, and converted said wheat to his own use, it was unnecessary to allege a payment or tender of the compensation which he was to have received. Thus, in State v. Rieger, 59 Minn. 151, 60 N.W. 1087, it was held to be unnecessary to allege in an indictment a tender of a warehouse receipt, or to aver a demand for the return of the grain for the...

To continue reading

Request your trial
28 practice notes
  • State v. Haji, CC 16CR02527 (SC S066254)
    • United States
    • Supreme Court of Oregon
    • May 7, 2020
    ...cited cases holding that surplusage does not render an indictment insufficient. Id . at 493, 185 P.3d 1103 (citing State v. Humphreys , 43 Or. 44, 48, 70 P. 824 (1902), and State v. Horne , 20 Or. 485, 486, 26 P. 665 (1891) ).4 A hypothetical illustrates the problem: If a grand jury finds t......
  • State v. Jackson
    • United States
    • Supreme Court of Oregon
    • October 19, 1960
    ...defendant. State v. Du Bois, 1944, 175 Or. 341, 153 P.2d 521; State v. Dormitzer, 1927, 123 Or. 165, 261 P. 426; State v. Humphreys, 1902, 43 Or. 44, 70 P. 824. While ORS 167.150(1) makes use of the various descriptive terms 'obscene,' 'indecent' and 'immoral,' we think that they express bu......
  • State v. Waterhouse
    • United States
    • Supreme Court of Oregon
    • February 13, 1957
    ...overruled. State v. Dormitzer, 123 Or. 165, 169, 261 P. 426; State v. Emmons, 55 Or. 352, 358, 104 P. 882, 106 P. 451; State v. Humphreys, 43 Or. 44, 48, 70 P. 824. However, in those cases there was no discussion as to whether the surplusage was in truth prejudicial, and in none of them cou......
  • State v. Laundy
    • United States
    • Supreme Court of Oregon
    • February 28, 1922
    ...380-382; State v. White, 48 Or. 416, 421, 87 P. 137; State v. Dale, 8 Or. 229, 232; State v. Bergman, 6 Or. 341, 345; State v. Humphreys, 43 Or. 44, 47, 70 P. 824; Cranor v. Albany, 43 Or. 144, 147, 71 P. 1042; State v. Emmons, 55 Or. 352, 356, 104 P. 882, 106 P. 451; State v. Bilyeu, 64 Or......
  • Request a trial to view additional results
28 cases
  • State v. Haji, CC 16CR02527 (SC S066254)
    • United States
    • Supreme Court of Oregon
    • May 7, 2020
    ...cited cases holding that surplusage does not render an indictment insufficient. Id . at 493, 185 P.3d 1103 (citing State v. Humphreys , 43 Or. 44, 48, 70 P. 824 (1902), and State v. Horne , 20 Or. 485, 486, 26 P. 665 (1891) ).4 A hypothetical illustrates the problem: If a grand jury finds t......
  • State v. Jackson
    • United States
    • Supreme Court of Oregon
    • October 19, 1960
    ...defendant. State v. Du Bois, 1944, 175 Or. 341, 153 P.2d 521; State v. Dormitzer, 1927, 123 Or. 165, 261 P. 426; State v. Humphreys, 1902, 43 Or. 44, 70 P. 824. While ORS 167.150(1) makes use of the various descriptive terms 'obscene,' 'indecent' and 'immoral,' we think that they express bu......
  • State v. Waterhouse
    • United States
    • Supreme Court of Oregon
    • February 13, 1957
    ...overruled. State v. Dormitzer, 123 Or. 165, 169, 261 P. 426; State v. Emmons, 55 Or. 352, 358, 104 P. 882, 106 P. 451; State v. Humphreys, 43 Or. 44, 48, 70 P. 824. However, in those cases there was no discussion as to whether the surplusage was in truth prejudicial, and in none of them cou......
  • State v. Laundy
    • United States
    • Supreme Court of Oregon
    • February 28, 1922
    ...380-382; State v. White, 48 Or. 416, 421, 87 P. 137; State v. Dale, 8 Or. 229, 232; State v. Bergman, 6 Or. 341, 345; State v. Humphreys, 43 Or. 44, 47, 70 P. 824; Cranor v. Albany, 43 Or. 144, 147, 71 P. 1042; State v. Emmons, 55 Or. 352, 356, 104 P. 882, 106 P. 451; State v. Bilyeu, 64 Or......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT