State v. Parr

• Decision Date: 20 July 1909
• Citation: 54 Or. 316,103 P. 434
• Parties: STATE v. PARR et al.
• Court: Oregon Supreme Court

103 P. 434

54 Or. 316

STATE v. PARR et al.

Supreme Court of Oregon

July 20, 1909

Appeal from Circuit Court, Umatilla County; H.J. Bean, Judge.

Joseph Parr and Samuel Gaston were convicted of assault and robbery with dangerous weapons, and appeal. Affirmed.

Will M. Peterson, for appellants.

G.W Phelps, Dist. Atty., for the State.

MOORE C.J.

The defendants, Joseph Parr and Samuel Gaston, were, with another party, jointly charged with the crime of assault and robbery while being armed with dangerous weapons, "to wit pistols." The crime was alleged to have been committed as follows: "The said Joseph Parr, Samuel Gaston, and John Doe, acting together on the 3d day of November, A.D.1908, in the county of Umatilla and state of Oregon, then and there being and acting together, did then and there with intent, if resisted, to kill or wound one Peter Willox, assault him, the said Peter Willox, they the said Joseph Parr, Samuel Gaston and John Doe so acting together being then and there armed with dangerous weapons to wit: pistols, and they, the said Joseph Parr, Samuel Gaston, and John Doe so acting together, did then and there unlawfully and feloniously rob, steal and take from the person of him, the said Peter Willox, sixty dollars, gold coin, being three twenty dollar gold pieces, each of the value of twenty dollars, lawful money of the United States the personal property of him, the said Peter Willox, said money being so stolen and taken at the time of said assault and while Joseph Parr, Samuel Gaston, and John Doe were so armed with such dangerous weapons as aforesaid, contrary to the statute in such cases made and provided and against the peace and dignity of the State of Oregon." Parr and Gaston were jointly tried; and, having been found guilty as charged, they appeal from the judgment which followed. Their counsel contend that because the indictment did not allege that the pistols were then and there "loaded with gunpowder and lead bullets," or aver that the money was taken from the prosecuting witness, "and against his will," the written accusation was insufficient, and that the demurrer which called attention to these defects was erroneously overruled. The statute asserted thus to have been violated is as follows: "If any person being armed with a dangerous weapon shall assault another with intent, if resisted, to kill or wound the person assaulted, and shall rob, steal, or take from the person assaulted any money or other property which may be the subject of larceny, such person, upon conviction thereof, shall be punished," etc. B. & C.Comp. § 1768. The indictment herein follows the express wording of the enactment on which it is based, but enlarges upon the language quoted by averring in the phrase, "to wit: pistols," the kind of dangerous weapons with which the defendants were armed when the assault and robbery were committed. The model prescribed for that part of an indictment which charges a transgression of the statute hereinbefore set forth is as follows: "Being armed with a dangerous weapon, did commit an assault upon one C.D., with intent, if resisted, to kill or wound the said C.D., and then and there feloniously took a gold watch (or as the case may be) from the person of the said C.D., and against his will." Forms of indictment No. 10, 1 B. & C.Comp. p. 750. In the model thus recommended it will be observed that the phrase "and against his will" is employed. In preparing the written accusation in the case at bar the district attorney did not attempt to follow the form appointed, but patterned the formal charge after the statute. B. & C.Comp. § 1768. That enactment contains a statement of all the essential elements of robbery required by the rules of the common law, except a provision that the personal property taken was that of the person who was assaulted; and this averment, though not required when the form prescribed is used ( State v. Dilley, 15 Or. 70, 13 P. 648; State v. Eddy, 46 Or. 625, 81 P. 941, 82 P. 707), appears in the indictment herein. The language employed in an indictment need not correspond with the pattern suggested, or with the words of a statute, unless the expression used in the formal charge is necessary to the validity of the accusation. 22 Cyc. 340. Thus a text-writer, discussing the subject of robbery, observes: "It is not essential to charge the taking as 'against the will' if the larceny is otherwise sufficiently charged." 1 McClain, Crim.Law, § 480. To the same effect, see, also, 2 Bishop, New Crim.Proc. § 1006, sub. 2; Clark & Mar.Law of Crimes (2d Ed.) § 377.

In the case at bar the larceny from the person of Peter Willox is sufficiently charged; and, this being so, the failure to aver in the indictment "and against his will" did not render the written accusation ineffectual. People v. Riley, 75 Cal. 98, 16 P. 544; State v. La Chall, 28 Utah, 80, 77 P. 3. From an inspection of the form of an indictment as hereinbefore set forth, it is manifest that the character of the dangerous weapon with which the party charged was armed is not specified. The allegation that a person accused of an assault and robbery was armed with a dangerous weapon, without designating its kind, does not violate a provision of our statute which declares that the indictment must be direct and certain, as it regards the particular circumstances of the crime charged when they are necessary to constitute a complete crime. B. & C.Comp. § 1306. The statute contains the further provision, to wit: "The manner of stating the act constituting the crime, as set forth in the appendix to this Code, is sufficient in all cases where the forms there given are applicable." Id. § 1305. As form No. 10, hereinbefore quoted, does not specify the kind of weapon used, it is therefore unnecessary to aver its character in an indictment. Burton v. State, 3 Tex.App. 408, 30 Am.Rep. 146. To prove whether or not the weapon was dangerous evidence of its kind and character is rendered admissible by the mere statement in the written accusation that the assault was committed by a person who was then and there armed with a dangerous weapon. Although the designating in the indictment before us of the dangerous weapons as, "to wit: pistols," may individualize them, such specification was not necessarily descriptive of the offense; and the qualifying clause was properly rejected as surplusage. State v. Horne, 20 Or. 485, 26 P. 665; State v. Lee, 33 Or. 506, 56 P. 415; State v. Humphreys, 43 Or. 44, 70 P. 824. The indictment being sufficient, no error was committed in overruling the demurrer.

It is insisted by defendants' counsel that an error was committed in charging the jury as follows: "I instruct you that a revolver or a pistol loaded with powder and ball is a dangerous weapon." The testimony given by the witnesses who appeared for the state tended to show that on November 3, 1908, Willox was in a saloon at Pendleton with others drinking "near" beer; that, after several bottles of such refreshment had been consumed and paid for by others, some more of the malt liquor was brought to the tables at which people were sitting, and...