State v. Nussbaum

• Decision Date: 15 December 1971
• Parties: STATE of Oregon, Appellant, v. Carolyn Abby NUSSBAUM et al., Respondents.
• Court: Oregon Supreme Court

Page 1013

491 P.2d 1013

261 Or. 87

STATE of Oregon, Appellant, v. Carolyn Abby NUSSBAUM et al., Respondents.

Supreme Court of Oregon, In Banc.

Argued and Submitted Nov. 3, 1971.

Decided Dec. 15, 1971.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for appellant. On the brief were Lee Johnson, Atty. Gen., Jacob B. Tanzer, Sol. Gen., and James L. Carney, Asst. Atty. Gen., Salem.

Stanton F. Long, Eugene, argued the cause for respondent Harris. With him on the brief were Johnson, Johnson & Harrang, Eugene.

Robert L. Ackerman, Springfield, was on the brief for respondents Nussbaum, Nussbaum, Howe, Gratz, Zerzan, Dolan, Freed and Murphy. With him on the brief were Babcock & Ackerman, Springfield.

Terence J. Hammons, Eugene, was on the brief for respondents Lothian, Viera, Chase and Husted.

TONGUE, Justice.

This case presents the question whether an indictment for the crime of rioting, in violation of ORS 166.040(1), is insufficient on demurrer if it fails to allege the names of three co-rioters or that the names of the other co-rioters are unknown to the grand jury. ¹

Eight of the defendants were charged with participating in a riot at the Reserve Officers Training Corps building on the University of Oregon campus in Eugene, in the course of which that building was set on fire and burned. The remaining five defendants were charged with participating in another riot in Lane County.

Both the State and the defendants have filed petitions for review of a decision by the Court of Appeals, in an opinion by a divided court, Or.App., 93 Adv.Sh. 16, 487 P.2d 669 (July 21, 1971). That decision affirmed judgments of the trial court, which had sustained demurrers by the defendants to separate indictments charging them with '* * * wilfully participat(ing) in a riot by acting together * * * with three or more persons * * *,' but without naming the co-rioters or alleging that their names were unknown. ² The Court of Appeals directed, however, that the cases should be resubmitted to the grand jury for the correction of that defect. ³

The State contends that the Court of Appeals erred in relying on the 'questionable rationale' of its prior decision in State v. House, Or.App., 92 Adv.Sh. 1001, 485 P.2d 33 (1971), which held that ORS 132.530 ⁴ and 132.540(1)(f) ⁵ were adopted by the framers of our penal code 'in lieu' of a statute providing for a bill of particulars, as used in some other jurisdictions. The State also contends that the Court of Appeals erred in failing to hold that this case was analogous to, if not controlled by, the decision of this court in State v. Rood, 234 Or. 196, 202, 380 P.2d 806 (1963).

We granted the petitions for review because this is a question of first impression in Oregon and because after the decision by the Court of Appeals in this case we reversed its prior decision in House. State v. House, 93 Or.Adv.Sh. 571, 489 P.2d 381 (1971).

It would appear from an examination of the opinion of the Court of Appeals in this case that it is indeed based upon the rationale of its previous decision in House that ORS 132.530 and 132.540(1)(f) were intended to serve the same function as would be served by bills of particulars in some other jurisdictions. Thus, the Court of Appeals held (93 Adv.Sh. at p. 20, 487 P.2d at p. 671):

'There being no bill of particulars in criminal cases in Oregon, the demurrer provided by ORS 135.630(2) is a safeguard designed to allow a defendant, where necessary, to protect his right to be fully informed of the nature of the charge against him.' ⁶

However, in State v. House, Supra, we said (at p. 574, 489 P.2d at p. 383):

'* * * (T)he purpose of a bill of particulars is not to inform the defendant of the charge against him (as is the test to be applied in determining the sufficiency of an indictment on demurrer). Instead, its purpose is to provide the defendant with further information respecting the charge so as to enable him to prepare his defense and avoid prejudicial surprise at the trial. Annot. 5 A.L.R.2d 447, 448 (1949). * * *'

In support of their contention that an indictment for the crime of rioting must allege the names of three co-rioters or state that they are unknown, defendant cites the following decisions by courts of three other states: State v. McDonald, 12 S.C.L. 532, 10 Am.Dec. 691 (S.C.1822); Martin v. State, 115 Ga. 255, 41 S.E. 576 (1902); Loomis v. Edwards, 80 Ga.App. 396, 56 S.E.2d 183 (1949); and Craig v. State, 195 Ark. 925, 114 S.W.2d 1073 (1938). While these cases may also be distinguished on their facts, we consider them to be contrary to the established rule in Oregon relating to the purpose of an indictment and the requirements which must be satisfied in order to constitute a valid indictment in Oregon.

It has always been the general rule in Oregon that an indictment in the language of a statute is good on demurrer. State v. Tracy, 246 Or. 349, 354, 425 P.2d 171 (1967). In Oregon the common law in criminal cases was abolished with the adoption of the Deady Code in 1864. In its place, a criminal code and system of code pleading was adopted. ⁷

This same rule is applicable to the crime of rioting. Thus, in State v. Mizis, 48 Or. 165, 175, 85 P. 611, 615, 86 P. 361 (1906), this court held that:

'Whatever the definition of a 'riot' may be at common law or in other jurisdictions, it is thus settled here by statute.'

See also State v. Stephanus, 53 Or. 135, 138, 99 P. 428 (1909), and State v. Ausplund, 86 Or. 121, 131, 167 P. 1019 (1917).

Defendants also contend that the effect of ORS 135.630(2), 132.520(2) and 132.530 is to provide for a 'special demurrer' by which, in this case, they are entitled to demand that the indictment must allege the names of the three co-rioters or that the names of the other co-rioters are unknown and that this practice was recognized in State v. Smith, 182 Or. 497, 188 P.2d 998 (1948).

In State v. Goodall, 82 Or. 329, 333, 160 P. 595, 596 (1916), this court held that '* * * special demurrers, as known to the common law, are now abolished * * *.'

It is true, however, as also contended by defendants, that in State v. Smith, Supra, this court held (182 Or. at p. 507, 188 P.2d 998) that the permissible grounds for demurrer to an indictment in Oregon include not only the ground that the facts alleged do not constitute a crime (ORS 135.630(4)), but also the ground that the indictment does not conform to the requirements of definiteness and certainty as set forth in what is now ORS 132.520, 132.530 and 132.540(1) (f). See also State v. Holland, 202 Or. 656, 666, 277 P.2d 386 (1954). The reason stated in Smith (182 Or. at p. 507, 188 P.2d 998) for these additional requirements, however, was to enable a criminal defendant to exercise his constitutional right to demand the nature and cause of the accusation against him. It does not necessarily follow, however, that the defendants in this case are entitled to demand that the indictments allege facts such as those demanded by them.

In Smith we held (at pp. 500--501, 188 P.2d at p. 999) that the purposes of an indictment are:

'* * * (1) to inform the accused of the nature and character of the criminal offense with which he is charged with sufficient particularity to enable him to make his defense, (2) to identify the offense so as to enable the accused to avail himself of his conviction or acquittal thereof in the event that he should be prosecuted further for the same cause, and (3) to inform the court of the facts charged so that it may determine whether or not they are sufficient to support a conviction. * * *'

That decision is consistent with the more recent decision of the Court of Appeals for the Ninth Circuit in Barber v. Gladden, 327 F.2d 101, 103 (9th Cir. 1964), which defined the constitutional requisites of an indictment as follows:

'* * * due process under the Fourteenth Amendment, as concerns an indictment or information, requires only that it state a public offense, and give sufficiently reasonable notice and information of the specific charge to enable the person charged to make his defense, and to plead his conviction or acquittal thereof as a bar to a subsequent prosecution for the same offense. * * *'

Defendants contend that the indictments must allege the names of the three co-rioters, or that the names of the other two were unknown, because of defendants' 'right to know what they must defend against.' Defendants also contend that the indictments must allege such facts because each defendant has the right to be informed sufficiently to 'enable him to make his defense,' apparently by showing that 'their participation was not riotous.'

In considering these contentions the language of the statutes relied upon in support of such contentions is significant. Thus, ORS 132.520(2) requires that an indictment must contain a statement of 'the acts constituting the offense' in language sufficiently concise so as to enable a person of ordinary meaning to know what is intended. ORS 132.540(1)(f) is quite similar and states substantially the same requirement in terms of 'the act or omission charged as the crime.' Similarly, ORS 132.530 requires that the indictment must be direct and certain 'as to the crime charged' and the circumstances 'necessary to constitute a complete crime.'

If, on trial, the State must establish the names of at least three co-rioters as one of the acts 'constituting the offense' or 'crime' or as a fact 'necessary to constitute a complete crime' it might follow that defendants may be entitled to demand that the indictments allege the names of at least two co-rioters or that their names were unknown to the grand jury. If, however, the State need not prove on trial the names of the co-rioters it would appear that defendants would have no basis for the contention that they are entitled to demand that the indictments allege such facts because of their 'right to know what they must defend against.'

After considering the...