State v. Moyer
| Decision Date | 01 June 1915 |
| Citation | 149 P. 84,76 Or. 396 |
| Parties | STATE v. MOYER. |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Malheur County; Dalton Biggs, Judge.
George F. Moyer was convicted of arson, and he appeals. Reversed and remanded.
The defendant was indicted for the crime of setting fire to and burning a stable. The portion of the indictment important here is as follows:
"The said Geo. F. Moyer, on the 21st day of March, 1914, * * * did then and there wrongfully, unlawfully, feloniously willfully, and maliciously, in the nighttime, set fire to and burn a stable, to wit, the Jordan Valley Livery Stable * * *"
To this indictment the defendant demurred, for the reason that it did not state facts sufficient to constitute a crime. The court after argument, sustained said demurrer, and allowed the district attorney to amend the indictment without submitting the matter to another grand jury; such permission being authorized by section 18, article 7 of the Constitution, as amended in June, 1908, by the clause:
"Provided however, that any district attorney may file an amended indictment whenever an indictment has, by a ruling of the court, been held to be defective in form."
Section 18 of article 7 of the Constitution originally provided:
The defendant filed a motion asking an order of the court directing that the amendment be not allowed, and that the indictment be quashed for the reason that it had not been returned by any grand jury of Malheur county, Or., which motion was by the court overruled, and the amended indictment was filed by the district attorney. The ground of the objection to the original indictment was that it charged the burning of a stable, namely, the Jordan Valley Livery Stable and did not name the owner of the stable. The amended indictment sets forth that he burned a stable, to wit, the Jordan Valley Livery Stable, being then and there the property of another, to wit, the Jordan Valley Hotel Company, a corporation. Defendant was tried upon the said indictment and found guilty, from which sentence he appeals.
Julian Hurley, of Vale (Geo. W. Hayes, of Vale, on the brief), for appellant. George M. Brown, Atty. Gen., W. H. Brooke, Dist. Atty., of Ontario (R. W. Swagler, of Ontario, on the brief), for the State.
EAKIN, J. (after stating the facts as above).
Section 1932, L. O. L., provides:
"If any person shall willfully and maliciously burn in the nighttime any church, court house, * * * or any * * * mill, barn, stable, shop, or office of another, * * * such person shall be deemed guilty of arson."
Therefore, it was necessary to allege the owner of the barn as a part of the description of the offense. Its omission from the charge was fatal to a demurrer, and the amendment of the indictment is authorized only by the Constitution itself in this state, which provides that it may be amended as to matter of form merely. We have no statute authorizing such amendments, or any legislation upon the subject, other than the amendment by the clause in the Constitution. By our Constitution the defendant is entitled to be tried upon an indictment found by a grand jury who act under oath, and amendment of the indictment in matters of substance is unauthorized. The authorities seem to all agree that such an amendment is unauthorized, unless approved by the grand jury, or that such an amendment is authorized by statute. In Welty v. Ward, 164 Ind. 457, 73 N.E. 889, 3 Ann. Cas. 556, the court, after citing cases from the state of Massachusetts and the ruling of the Supreme Court of the United States, states that the rulings in those cases are not recognized in Indiana, because in those instances there was no statute authorizing the amendment of the indictment. However, the court says:
Our Constitution contains the only provision which authorizes such an amendment, but only as to form; and there seems to be a well-recognized distinction between matters that are purely matters of form and matters that go...
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State v. Haji
...a case decided not long after its 1908 enactment. This court's interpretation of Article VII (Original), section 18, in State v. Moyer , 76 Or. 396, 149 P. 84 (1915), provides helpful context. See Stranahan v. Fred Meyer, Inc. , 331 Or. 38, 61, 11 P.3d 228 (2000) (stating that contextual ......
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State v. Fair
...for us to repudiate some of our previous decisions, for example, State v. Russell, 231 Or. 317, 372 P.2d 770 (1962) and State v. Moyer, 76 Or. 396, 149 P. 84 (1915).2 For a more specific treatment of the problem, see Mooreland, Modern Criminal Procedure, ch. 19 (1959); Orfield, Criminal Pro......
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State v. Wimber
...whenever, by ruling of the court, an indictment or information is held to be defective in form." (Emphasis added.) See State v. Moyer, 76 Or. 396, 399, 149 P. 84 (1915) (Oregon Constitution authorizes amendment of indictment as to form; 19 amendment as to substance is unauthorized unless ap......
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State of Or. v. WILLIAMS
...without resubmitting it to the grand jury, then, turns on whether the amendment pertained to a matter of “form.” In State v. Moyer, 76 Or. 396, 399, 149 P. 84 (1915), the Supreme Court observed that there is a “well-recognized distinction between matters that are purely matters of form and ......