State v. Mathie
| Decision Date | 08 October 1979 |
| Docket Number | No. 18-989B,18-989B |
| Citation | 600 P.2d 961,42 Or.App. 571 |
| Parties | STATE of Oregon, Appellant, v. Michael Allen MATHIE, Respondent. ; CA 14693. |
| Court | Oregon Court of Appeals |
Robert C. Cannon, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.
Howard R. Lonergan, Portland, argued the cause for respondent. With him on the brief was A. I. Bernstein, Portland.
Before JOSEPH, P. J., and LEE and RICHARDSON, JJ.
The state appeals from an order allowing defendant's demurrer to an indictment which charged conspiracy to commit burglary in the first degree in Count I and "as part of the same act and transaction alleged in Count I" conspiracy to commit custodial interference in the first degree. The trial court found that the indictment did not conform to ORS 132.560 1 and ordered the indictment resubmitted to the grand jury.
We reverse and remand for trial.
In passing upon the validity of an indictment, the trial court is bound by the terms of the accusatory instrument. State v. Norton, 9 Or.App. 595, 497 P.2d 680 (1972); State v. Davis, 1 Or.App. 285, 462 P.2d 448 (1969). We are not here dealing with a problem of merging convictions. The indictment charged two crimes, not one. Apparently the trial court assumed that the indictment charged only one conspiracy, whereas by its terms it charged two separate and distinct conspiracies. The demurrer was improperly allowed. State v. Huennekens, 245 Or. 150, 154, 420 P.2d 384 (1966); State v. Tucker, 252 Or. 597, 451 P.2d 471 (1969); State v. Fitzgerald, 267 Or. 266, 516 P.2d 1280 (1973).
Reversed and remanded for trial.
To continue reading
Request your trial
-
State v. Livingston
...the face of the second indictment before us. We must review the indictment solely on the basis of the facts alleged. State v. Mathie, 42 Or.App. 571, 600 P.2d 961 (1979), rev. den. 277 Or. 253 (1980). The indictment shows on its face that it was filed after the period of limitation. It is s......
-
State v. Bovee
...Or.App. 551, 555, 699 P.2d 1131 (1985): " * * * We must review the indictment solely on the basis of the facts alleged. State v. Mathie, 42 Or App 571, 600 P2d 961 (1979), rev den 288 Or 253 (1980). The indictment shows on its face that it was filed after the period of limitation. * * * The......
-
State v. Powell
...of an indictment, a court is bound by the terms of the instrument. State v. Sweet, 46 Or.App. 31, 610 P.2d 310 (1980); State v. Mathie, 42 Or.App. 571, 600 P.2d 961 (1979), rev. den. 288 Or. 253 Defendant next assigns error to the admission in evidence of numerous civil complaints and judgm......