State v. McDonald

• Decision Date: 18 October 1961
• Citation: 365 P.2d 494,231 Or. 48
• Parties: STATE of Oregon, Respondent, v. Levi Sarfield McDONALD, Appellant.
• Court: Oregon Supreme Court

Page 494

365 P.2d 494

231 Or. 48

STATE of Oregon, Respondent, v. Levi Sarfield McDONALD, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted June 5, 1961.

Decided Oct. 18, 1961.

William B. Murray, Portland, argued the cause and filed briefs for the appellant.

William E. Schumaker, Dist. Atty., and Donald B. Bowerman, Deputy Dist. Atty., Oregon City, argued the cause for respondent. With them on the brief was Robert Y. Thornton, Atty. Gen.

Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN, and LUSK, JJ.

PERRY, Justice.

The defendant Levi Sarfield McDonald, a former employee of the Oregonian Publishing Company, was convicted by a Clackamas county jury of the crime of maliciously damaging personal property by explosives, and prosecutes this appeal to reverse the judgment of conviction.

There are sixteen assignments of error. All assignments except three are identical in fact and nature with those considered to be without merit in the case of State v. McDonald, Or., 361 P.2d 1001. The decision in that case is determinative of the thirteen assignments of error in the present case and, although reconsidered by the court, our reasoning will not be again reiterated in this opinion.

The remaining assignments of error are directed to the refusal of the trial court to submit to the jury for its consideration defendant's attempted plea of former jeopardy.

The basis of defendant's contention of former jeopardy lies in the fact he was convicted on an indictment returned by the grand jury of Multnomah county, which reads as follows:

'Levi McDonald is accused by the Grand Jury of the County of Multnomah and State of Oregon by this indictment of the crime of Injury To Property By Explosives committed as follows:

'That said Levi McDonald on the 31st day of January, A. D. 1960 in the County of Multnomah and State of Oregon, then and there being, did then and there unlawfully and feloniously, purposely and maliciously, set off and explode a quantity of dynamite with intent then and there on the part of the said Levi McDonald to then and there injure: one 1954 White truck, one 1955 International truck, one 1956 International truck, and one 1957 International truck the personal property of another, to-wit: The Hertz Corporation, contrary to the Statutes in such cases made and provided and against the peace and dignity of the State of Oregon.

'Dated at the City of Portland, in the County aforesaid, this 24th day of February A. D. 1960.

'Charles E. Raymond, District Attorney

'By Glenn A. Guerts, Deputy.

'Witnesses examined before the Grand Jury: William Howard McGill, Francis Edgmon, Caryl Forbish, Earl C. Adams, Dwight Gordon, Eugene Wymore, Marcus William Brooks, Oran Lyle Hull, Jane Snyder, Ruth Alys Snyder, Janis Buis'

The indictment returned against defendant by the grand jury of Clackamas county reads as follows:

'Levi Sarfield McDonald is accused by the Grand Jury of the County of Clackamas, State of Oregon, by this indictment of the crime of Injury To Property By Explosives committed as follows:

'The said Levi Sarfield McDonald on or about the 31st day of January, A. D., 1960, in the said County of Clackamas and State of Oregon, then and there being, did then and there purposely, maliciously, feloniously and with intent to injure the property of another, to-wit: six (6) van type trucks, owned by Eugene D. Wymore, set off and explode dynamite, said act of defendant being, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.

'Dated at Oregon City in the County aforesaid, this 18th day of February, A. D., 1960.

'Witnesses examined by the Grand Jury and for the State of Oregon: Eugene D. Wymore, Niel C. Doane, George Fatham, Francis C. Edgmon, Caryl R. Forbish, Wm. Brooks, Bernice Lee, Oran Lyle Hull, E. Lloyd Holt, Jane Snyder, Ruth Alys Snyder.

'(sgd) Winston L. Bradshaw

District Attorney.'

At his arraignment in the circuit court for Clackamas county, the defendant entered a plea of not guilty and also (as authorized by ORS 135.830(3)) the plea that he had already been convicted of the crime charged in the indictment, setting forth the judgment of conviction rendered in the circuit court for Multnomah county.

The trial court at first accepted the pleas as made and then on motion of the State struck the plea of former jeopardy, the effect of the trial court's action being to reject the plea of former jeopardy.

Whether or not the trial court properly rejected the defendant's plea of former jeopardy depends upon whether or not each indictment on its face discloses as a matter of law a separate and distinct offense. '* * * All the writers seem to concur that a plea of former conviction or acquittal must be 'upon a prosecution for the same identical act and crime.' 4 Bl.Comm.

Page 336

' State v. Howe, 27 Or. 138, 140, 44 P. 672, 673.

Crimes to be identical must be the same in law and in fact. State v. Sly, 4 Or. 277.

In State v. Weitzel, 157 Or. 334, 340, 69 P.2d 958, 961, and State v. Stewart, 11 Or. 52, 53, 238, 4 P. 128, we quoted with approval the following from Morey v. Commonwealth, 108 Mass. 433, 434:

"A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other."

Thus, to constitute a valid plea of former jeopardy, two distinct factors at least must be shown to concur--the same act and the same statutory offense.

An examination of the indictment discloses that the same identical crime in law is charged in each indictment so we must consider whether or not the same act or acts is charged.

In identifying whether or not the act or acts charged constitute single or multiple crimes, the courts apply two tests. The first, and prevailing rule in the majority of jurisdictions, is known as the 'same evidence test.'

'* * * For instance, it is often said, and stated as a test, that a conviction or acquittal upon one indictment is a bar to a subsequent prosecution upon another, when the facts alleged in the second indictment would, if given in evidence, have warranted a conviction on the first; and this is the rule principally relied upon by the defendant in this case. But it must be accepted with some qualification, and as only true in a general sense. Thus if, after a conviction of assault and battery, the injury resulted in death, the defendant, it is held, may be prosecuted for manslaughter or murder, although under the facts set out in the second indictment, he might have been convicted of the crime charged in the first. 1 Bish.New Cr.Law, § 1059. So, too, in prosecutions for the unlawful sale of intoxicating liquors, each sale constitutes a separate offense, and although both indictments charge a sale to the same person, and the prosecution could support either by the same evidence, inasmuch as the date is immaterial, yet a prosecution on one would not be a bar to the other, unless it was for the same act of selling. State v. Ainsworth, 11 Vt. 91. So, also, where each obstruction of a highway by a railway company constitutes a distinct offense, an acquittal on...