State v. Pachmayr

• Citation: 344 Or. 482,185 P.3d 1103
• Decision Date: 08 May 2008
• Docket Number: (CC C032969CR; CA A126620; SC S055206).
• Parties: STATE of Oregon, Petitioner on Review, v. Nathan Donovan PACHMAYR, Respondent on Review.
• Court: Supreme Court of Oregon

185 P.3d 1103

344 Or. 482

STATE of Oregon, Petitioner on Review,

v.

Nathan Donovan PACHMAYR, Respondent on Review.

(CC C032969CR; CA A126620; SC S055206).

Supreme Court of Oregon, En Banc.

Argued and Submitted January 8, 2008.

Decided May 8, 2008.

On review from the Court of Appeals.^*

David B. Thompson, Assistant Attorney General, Salem, argued the cause and filed the briefs for petitioner on review. With him on the briefs were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Bronson D. James, Chief Deputy Public Defender, Salem, argued the cause and filed the briefs for respondent on review. With him on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services, Legal Services Division.

WALTERS, J.

This is a criminal case in which the trial court allowed the district attorney to amend an indictment at the close of the state's case-in-chief. On appeal from that decision, the Court of Appeals held that Article VII (Amended), section 5, of the Oregon Constitution mandated that the grand jury, rather than the district attorney, make that amendment. We conclude that the indictment was defective in form only, and that the trial court correctly permitted the district attorney to amend it. We reverse the decision of the Court of Appeals and affirm defendant's conviction.

Defendant drove a car over a highway median and into another car, injuring the two occupants of the other car as well as a passenger in his car. Based on that incident, the grand jury charged defendant with, among other things, three counts of assault in the second degree — one count for each victim. ORS 163.175(1)(c) defines the relevant crime:

"A person commits the crime of assault in the second degree if the person:

"* * * * *

"(c) Recklessly causes serious physical injury to another by means of a deadly or dangerous weapon under circumstances manifesting extreme indifference to the value of human life."

(Emphasis added.)

Counts 1 and 3 of the indictment alleged that defendant had committed assault in the second degree by means of a "dangerous weapon." Count 2 alleged that defendant had committed assault in the second degree by means of a "deadly weapon." All three counts described the pertinent weapon as "to wit: an automobile."

At trial, the state presented evidence that defendant drove the car recklessly and thereby caused physical injury to all three victims. At the close of the state's case-in-chief, defendant moved for a judgment of acquittal on Count 2, arguing that the state had failed to present evidence from which the jury could find that he had used a deadly weapon. A deadly weapon is distinguished from a dangerous weapon by ORS 161.015:

"(1) `Dangerous weapon' means any weapon, device, instrument, material or substance which under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or serious physical injury.

"(2) `Deadly weapon' means any instrument, article or substance specifically designed for and presently capable of causing death or serious physical injury."

The state acknowledged that it had not adduced evidence that the car was a deadly weapon, but argued that the use of the term "deadly weapon" in Count 2 was merely a "scrivener's error." The state sought permission of the trial court to amend Count 2 to match Counts 1 and 3 and allege that the car was a dangerous weapon. The trial court allowed the amendment, and the jury convicted defendant on all three counts.

Defendant appealed his conviction on Count 2, arguing that the amendment was not merely a matter of form because it had materially altered the indictment, and that the Oregon Constitution requires that the grand jury make such amendments. The Court of Appeals held that the amendment was one of substance, not form, and reversed. State v. Pachmayr, 213 Or.App. 665, 162 P.3d 347 (2007). We allowed the state's petition for review.

Article VII (Amended), section 5, of the Oregon Constitution provides, in part:

"(3) Except as provided in subsections (4) and (5) of this section, a person shall be charged in a circuit court with the commission of any crime punishable as a felony only on indictment by a grand jury.

"(4) The district attorney may charge a person on an information filed in circuit court of a crime punishable as a felony if the person appears before the judge of the circuit court and knowingly waives indictment.

"* * * * *

"(6) An information shall be substantially in the form provided by law for an indictment. The district attorney may file an amended indictment or information whenever, by ruling of the court, an indictment or information is held to be defective in form."

(Emphases added.)

To determine whether the district attorney was permitted to make the amendment in this case, we must determine whether the indictment was defective in "form." We begin with an examination of the text and history of the constitutional provision permitting district attorneys to amend indictments and the case law concerning that provision. Priest v. Pearce, 314 Or. 411, 415-16, 840 P.2d 65 (1992).

The constitutional text provides that only the grand jury may indict a defendant for a crime punishable as a felony, unless the defendant waives indictment, in which case the district attorney may bring the charge on information. Or. Const, Art. VII (Amended), § 5(3) and (4). The trial court may permit the district attorney to amend either an indictment or an information, but only if it is defective in "form." Id. at § 5(6).

The current version of Article VII (Amended), section 5, of the Oregon Constitution was adopted in 1974. It is substantially similar to former Article VII (Original), section 18, of the Oregon Constitution, which was amended in 1908 to permit the district attorney to amend indictments held to be defective in "form."¹ Neither the 1974 nor the 1908 version defines the terms "defective in form" or "form." However, the Oregon statutes that were in place at the time that the 1908 provision was enacted did use substantially similar terms. Those statutes distinguished between the allegations in an indictment that were necessary to make the indictment sufficient to charge a crime and other defects or imperfections that did not affect the sufficiency of the indictment. Those statutes referred to the latter as "matters of form."

Section 1314 of the statutes that were in effect in 1908 provided the requirements for a sufficient indictment:

"The indictment is sufficient if it can be understood therefrom:

"1. That it is entitled in a court having authority to receive it, though the name of the court be not accurately stated;

"2. That it was found by a grand jury of the county in which the court was held;

"3. That the defendant is named, or if his name can not be discovered, that he is described by a fictitious name, with the statement that his real name is to the jury unknown "4. That the crime was committed within the jurisdiction of the court, except where, as provided by law, the act, though done without the county in which the court is held, is triable therein;

"5. That the crime was committed at some time prior to the finding of the indictment, and within the time limited by law for the commencement of an action therefor;

"6. That the act or omission charged as the crime is clearly and distinctly set forth, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended;

"7. That the act or omission charged as the crime is stated with such a degree of certainty as to enable the court to pronounce judgment, upon a conviction, according to the right of the case."

The Codes and Statutes of Oregon, title XVIII, ch. VIII, § 1314 (Bellinger & Cotton 1901).

Section 1315 of those statutes provided that an indictment was not insufficient if it was defective in form:

"No indictment is insufficient, nor can the trial, judgment, or other proceedings thereon be affected by reason of a defect or imperfection in matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits."

Thus, those statutes drew a distinction between the substantive aspects of an indictment that were required to render the indictment sufficient and the formal aspects of an indictment, and provided that defects in the formal aspects of an indictment were defects that did not prejudice the defendant or affect the sufficiency of the indictment. The 1891 Black's Law Dictionary, which was in general use in 1908, recognized the same distinction in defining the word "form," and explained as follows:

"The distinction between `form' and `substance' is often important in reference to the validity or amendment of pleadings. If the matter of the plea is bad or insufficient, irrespective of the manner of setting it forth, the defect is one of substance. If the matter of the plea is good and sufficient, but is inartificially or defectively pleaded, the defect is one of form."

Black's Law Dictionary 510 (1st ed. 1891).

The 1908 constitution also used the words "defective in form," and we have no reason to believe that it used those words in a different sense than that in which they were used in common parlance and contemporaneous statutes. Therefore, the constitution prohibited the district attorney from amending an indictment that was insufficient to charge the crime — an indictment that was defective in substance — in order to make it sufficient, but allowed the district attorney to correct other defects — defects in form.

The first case to consider the district attorney's authority to amend indictments after the constitution was amended in 1908 confirms that interpretation. In State v. Moyer, 76 Or. 396, 149 P. 84 (1915), the defendant demurred to an indictment that alleged that he had set fire to a stable, but did not allege that the...