State v. Schriber

• Decision Date: 05 April 1949
• Citation: 205 P.2d 149,185 Or. 615
• Parties: STATE <I>v.</I> SCHRIBER
• Court: Oregon Supreme Court

185 Or. 615

205 P.2d 149

STATE

v. SCHRIBER

Supreme Court of Oregon.

Argued March 17, 1949.

Affirmed April 5, 1949.

Criminal law — Statute — Creating offense — Certain

1. A statute which creates an offense which was not a crime at common law must be sufficiently certain to show what the Legislature intended to prohibit.

Criminal law — Judicial notice — Medical and other scientific facts

2. Courts take judicial notice of medical and other scientific facts relating to human life and health.

Criminal law — Judicial notice — Actual knowledge of judge — Dictionaries, etc.

3. Since judicial cognizance may extend to matters beyond actual knowledge of judge, in criminal prosecution the judge may properly resort for information to dictionaries, encyclopedias, learned treatises, and the like.

Criminal law — Judicial notice — Matters familiarly known to the person familiar with the particular matter

4. Matters familiarly known to the persons familiar with particular matter in question may be judicially noticed by judge in criminal prosecution.

Criminal law — Judicial notice — Notorious facts — Disease and injuries of animals

5. Notorious facts concerning disease and injuries of animals are judiciously noticed in criminal prosecution.

Criminal law — Judicial notice — Matters known generally in ordinary experience — Matters generally accepted as true

6. Matters which court may judicially notice in criminal prosecution fall into one of two classes, those matters which come to knowledge of men generally in course of ordinary experience of life, and are therefore in mind of trier, and those which are generally accepted by mankind as true and are capable of ready demonstration by means commonly recognized as authoritative.

Criminal law — Dictionary definition — Not complete — Acceptable meaning

7. Fact that a dictionary definition failed to disclose completely and accurately all manifestations of Bang's disease, did not justify conclusion that name borne by the disease had no accepted and commonly understood meaning, so as to justify holding that act relating to control and eradication of Bang's disease in cattle, and making violation of act a misdemeanor, was invalid

for indefiniteness because of lack of accepted meaning of the term "Bang's disease". Laws 1945, c. 355, § 1 et seq.

Criminal law — Judicial notice — Bang's disease — Contagious — Infectious

8. Judicial notice would be taken that Bang's disease is an infectious and contagious disease of cattle. Laws 1945, c. 355, § 1 et seq.

Criminal law — Act relating to Bang's disease — Not invalid for indefiniteness — No accepted meaning

9. The act relating to control and eradication of Bang's disease in cattle, and making violation of act a misdemeanor, is not invalid for indefiniteness on ground that there is no accepted meaning of the term "Bang's disease". Laws 1945, c. 355, § 1 et seq.

Indictment and information — Averments must show affirmatively an offense — Exceptions afford matter of excuse merely, matters of defense

10. An indictment must contain such averments as show affirmatively an offense, and, where exceptions or provisos are a material part of description of offense, the indictment must aver that act charged does not come within the exception or proviso; but, when exceptions afford matter of excuse merely, they are matters of defense and need not be negativated in indictment.

Indictment and information — Act to control and eradicate Bang's disease — Exceptions — Limitation in application of act

11. Under act relating to control and eradication of Bang's disease in cattle and making violation of a misdemeanor, provision excepting beef animals, or animals kept principally for beef purposes, from requirement that every female bovine animal be tested for Bang's disease once every twelve months, is merely a limitation in application of act and is not part of description of offense, nor a necessary ingredient of its definition, so that indictment for violation of act was not required to negative the exception. Laws 1945, c. 355, § 1 et seq.

Administrative law and procedure — Animals — Rules of state department of agriculture — Bang's disease — Scope of expressed general purpose

12. Rules of state department of agriculture requiring owner of bovine animal which has reacted to official test for Bang's disease to have animal slaughtered within 15 days after date of appraisal of animal following test, and authorizing an extension of time in prescribed circumstances not to exceed 30 days from appraisal, is within scope of expressed general purpose of act relating to control and eradication of Bang's disease in cattle, is valid, and has effect of law. Laws 1945, c. 355, § 1 et seq., and § 14, as amended by Laws 1947, c. 588. Animals — Indictment — Violation of Bang's disease act — Demurrable

13. Indictment charging violation of act relating to control and eradication of Bang's disease in cattle, and of regulation promulgated thereunder, by failure of defendant owner of cattle to cause or permit slaughter of cattle which had been found by test to be infected with Bang's disease, was demurrable in absence of charge that defendant's cattle had been appraised and that time prescribed by regulation after appraisal in which cattle were required to be slaughtered had lapsed. Laws 1945, c. 355, § 1 et seq., and § 14, as amended by Laws 1947, c. 588.

Indictment and information — Statute — Crime — Disjunctively — Single count — "and" — "or" — Uncertainty

14. Where statute makes it a crime to do several things disjunctively, indictment may generally embrace the whole in a single count, but indictment must use the conjunctive "and" where "or" occurs in statute, or indictment is defective for uncertainty.

Indictment and information — Disjunctive — Conjunctive

15. In prosecution for failure of owner to slaughter cattle found by test to be infected with Bang's disease, indictment properly used disjunctive rather than conjunctive in charging that defendant unlawfully failed and refused to slaughter infected cattle "or" cause or permit them to be slaughtered. Laws 1945, c. 355, § 1 et seq.

Indictment and information — Matters of inducement — Averment

16. Matters of inducement need not be averred in indictment with degree of minuteness which is requisite in setting out material allegations which constitute and give character to the offense charged.

Criminal law — Judicial notice — Provisions of statute

17. Judicial notice would be taken of provisions of statute for violation of which prosecution was brought.

Indictment and information — Judicial notice — Averred in indictment

18. Generally, matters of which court can or will take judicial notice need not be averred in indictment.

Indictment and information — Purpose

19. The purpose of an indictment is to clearly and definitely apprise a person of the crime with which he is charged in order that he may prepare his defense.

Indictment and information — Liberal rules applicable

20. Liberal rules are particularly applicable in favor of indictments charging statutory misdemeanors. Indictment and information — Conclusion of law — Owner definitely apprised of misdemeanor

21. In prosecution for failure of owner to cause or permit cattle to be slaughtered which had been found by test to be infected with Bang's disease, indictment would not be held to be insufficient on ground that allegation that cattle had been tested as required by statute with a conclusion of law, where owner was definitely apprised of misdemeanor with which he was charged. Laws 1945, c. 355, § 1 et seq.

Administrative law and procedure — Animals — State department of agriculture — Order — Test by county veterinarian

22. Order of state department of agriculture, under which official tests to be used in determining whether cattle are infected with Bang's disease, so as to require their slaughter under act relating to control and eradication of Bang's disease in cattle, are to be made by United States Bureau of Animal Industry laboratory, is valid as being within provision of act that a test performed by United States Department of Agriculture veterinarian is equivalent to test made by county veterinarian who has duty under statute to make tests once each year. Laws 1945, c. 355, §§ 1 et seq., 2.

Statutes — Carelessness in draftmanship — Legislative intent

23. Carelessness in legislative draftsmanship of criminal statute should not close eyes of a court to obvious legislative intent.

Criminal law — Sections referred to by number — Not vague

24. Section of act relating to control and eradication of Bang's disease in cattle, providing that appraisal, procedure, and court order for payment of cattle, required under act to be slaughtered because infected with Bang's disease, shall be as provided by sections referred to by number, refers to statutes dealing with appraisal and indemnity in case of animals slaughtered because affected with tuberculosis and paratuberculosis, and section is not void for vagueness on ground that the document, book, or administrative order to which section refers cannot be determined. Laws 1945, c. 355, § 1 et seq., and § 14, as amended by Laws 1947, c. 588; O.C.L.A. §§ 32-307, 32-308.

Indictment and information — Not required to aver that defendant's cattle were subject to act

25. All cattle in state are subject to act relating to control and eradication of Bang's disease in cattle and requiring slaughter of cattle found by test to be infected with Bang's disease, and fact that cattle in a particular county had been excepted under section of act authorizing county court to discontinue required testing program for a year is matter of defense in prosecution for violation of act, and indictment for violation of act was not required to aver that cattle of defendant's county were subject to act. Laws 1945, c. 355, §§ 1 et seq., 7, 16. Criminal law — Conviction not reversed — Time element

26. Conviction for...