State v. Sanders
Jurisdiction | Oregon |
Parties | STATE of Oregon, Respondent, v. John Calvin SANDERS, Petitioner. |
Citation | 280 Or. 685,572 P.2d 1307 |
Court | Oregon Supreme Court |
Decision Date | 28 December 1977 |
Stephanie A. Smythe, Salem, argued the cause for petitioner. On the briefs were Gary D. Babcock, Public Defender, Paul J. DeMuniz, Deputy Public Defender, and Patrick B. Gilmore, certified law student, Salem.
Donald L. Paillette, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.
The question is, in an indictment for burglary, must the state specify the crime it charges the defendant intended to commit when he allegedly unlawfully entered the building?
The indictment in this case charged that the defendant, "did * * * unlawfully * * * enter a building * * * with the intent to commit a crime therein * * *." The defendant demurred on the ground the indictment was not definite and certain as required by ORS 135.630(6). No constitutional ground was urged at any stage of the proceeding. The demurrer was overruled, the defendant pleaded not guilty, was tried, convicted and appealed. The defendant contends the trial court erred in overruling his demurrer. The Court of Appeals affirmed. 28 Or.App. 141, 558 P.2d 1276 (1977). We granted review and reverse.
ORS 164.215(1) provides:
"A person commits the crime of burglary in the second degree if he enters or remains unlawfully in a building with intent to commit a crime therein." 1
ORS 132.550 provides:
In State v. Smith, 182 Or. 497, 500, 188 P.2d 998, 999 (1948), we stated:
" * * * The objects 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. * * *."
In that case we also recognized that in determining the sufficiency of indictments we should consider Art. I, § 11 of the Oregon Constitution. That section provides that persons accused of crimes have the right to "demand the nature and cause of the accusation against him."
We also observed in that case:
* * *. * * *." (Citations omitted.)
For many years the Oregon practice with burglary statutes of various forms has been to specify the particular crime intended at the time of the breaking and entering.
For years there was a crime, "If any person shall break and enter any dwelling house in the night-time, in which there is at the time some human being, with intent to commit a crime therein * * *." OCLA 23-511. The intent required was the same as that required in the present statute, "intent to commit a crime."
Also, for years there was legislation stating acceptable forms of indictments. OCLA 26-705. The form for the crime of breaking and entering a dwelling house in the night-time in which there is a human being, after stating the other elements, stated, " * * * with intent to commit larceny (or other crime, describing it generally) therein * * *." Form No. 13, Appendix to ch. 26, OCLA. 2
Prior to the adoption of the Criminal Code in 1971 there was another crime of burglary which consisted of breaking and entering a building other than a dwelling "with intent to steal therein, or to commit any felony therein." OCLA 23-513. Indictments for this crime also customarily specified the felony which the defendant was charged with intending to commit at the time he broke and entered. State v. Tovrea, 123 Or. 231, 261 P. 431 (1927); Barber v. Gladden, 210 Or. 46, 60-61, 298 P.2d 986, 309 P.2d 192 (1957), cert. den. 359 U.S. 948, 79 S.Ct. 732, 3 L.Ed.2d 681 (1959); State v. Foss and Speers, 230 Or. 579, 581, 371 P.2d 564 (1962).
We have been cited 14 jurisdictions with statutes comparable to the one here involved which have decided that the intended crime must be specified in the indictment. United States v. Thomas, 144 U.S.App.D.C. 44, 444 F.2d 919 (1971), so holds and cites the decisions from the other jurisdictions. Bayless v. United States, 381 F.2d 67 (9th Cir. 1967), decided to the contrary; however, it so decided because of an applicable Washington statute which is not part of Oregon's law.
The state has not pointed out any way in which it would be prejudiced by requiring it to continue to specify the crime it charges the defendant intended to commit, other than having placed upon it the usual burden of alleging and proving each element of the crime charged. 3
The state contends its position is supported by the American Law Institute comments to the Model Penal Code proposing a burglary statute also providing, "with intent to commit a crime therein." Model Penal Code § 221.1, pp. 59-60 (Tent Draft No. 11 1950):
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