State v. Stover

• Decision Date: 30 January 1975
• Citation: 75 Or.Adv.Sh. 324,271 Or. 132,531 P.2d 258
• Parties: STATE of Oregon, Respondent, v. John Franklin STOVER, Petitioner.
• Court: Oregon Supreme Court

Page 258

531 P.2d 258

271 Or. 132

STATE of Oregon, Respondent, v. John Franklin STOVER, Petitioner.

Supreme Court of Oregon.

Argued and Submitted Sept. 6, 1974.

Decided Jan. 30, 1975.

Donald D. Yokom of Walton & Yokom, Pendleton, argued the cause and filed a brief for petitioner.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen., Salem.

Before O'CONNELL, C.J., and McALLISTER, HOLMAN, TONGUE, HOWELL, BRYSON and SLOPER, JJ.

HOWELL, Justice.

The defendant was convicted of criminally negligent homicide in the circuit court for Umatilla County. The conviction was upheld by the Court of Appeals. We granted review.

On May 4, 1972, the defendant was involved in a one-car accident in which a child passenger was killed. The investigating officer saw empty beer cans in the car and suspected that the defendant was under the influence of intoxicating liquor.

The defendant was taken to a hospital and while en route the officer radioed ahead and requested the hospital take a sample of the defendant's blood. At the hospital the sample was taken.

The defendant was cited four days later for the crime of driving with .15% Or more by weight of alcohol in his blood. ORS 483.999. Approximately two months later a secret indictment was returned by the grand jury charging the defendant with criminally negligent homicide, ORS 163.145, in the death of the child. On December 14, 1972, the charge of driving with .15% Or more by weight of alcohol in the blood was dismissed upon motion of the district attorney.

At trial the defendant entered a plea of former jeopardy, alleging that the dismissal of the misdemeanor charge was a bar to further prosecution for crimes arising out of the same transaction. The trial court denied his plea and the defendant was convicted of criminally negligent homicide. The conviction was affirmed by the Court of Appeals, State v. Stover, 14 Or.App. 559, 513 P.2d 537 (1973).

This court granted review to consider (1) the effect of a dismissal of a misdemeanor charge on a subsequent felony prosecution for a crime arising out of the same transaction, and (2) the interpretation of the Oregon Implied Consent Law, ORS 483.634 et seq., and its application to a prosecution for criminally negligent homicide.

The defendant contends that our decision in State v. Brown, 262 Or. 442, 497 P.2d 1191 (1972), as well as the provisions of ORS 134.140(2), would prohibit a trial for criminally negligent homicide when a prior charge of driving with .15% Or more by weight of alcohol in the blood was dismissed on application of the district attorney. We must first determine if the dismissal was proper in this case.

In a recent case both this court and the Court of Appeals, by dicta, questioned whether a misdemeanor not initiated by indictment could ever be dismissed upon application of the district attorney. State v. Leverich, 14 Or.App. 222, 511 P.2d 1265 (1973), aff'd 99 Or.Adv.Sh. 331, 522 P.2d 1390 (1974). This court stated:

'But ORS 134.160 provided:

'The entry of a nolle prosequi is abolished, and the district attorney cannot discontinue or abandon a prosecution for a crime, except as provided in ORS 134.150.'

'And ORS 134.150 provided:

'The court may, . . . upon the application of the district attorney, and in furtherance of justice, order an action, After indictment, to be dismissed; . . .'

'* * *

'Under 134.160 and 134.150 the prosecution of the reckless driving charge (there having been no indictment) could not have been dismissed on application of the district attorney, and it would not seem that a dismissal for the purpose of consolidating the misdemeanor charge with the felony charge in the circuit court could reasonably be held to be an exception to the statutory prohibition. * * * (Emphasis in original, footnote omitted.) 99 Adv.Sh. at 334--335, 522 P.2d at 1393.

The Court of Appeals, interpreting the same two statutes, said:

'* * * If these two statutes, which date back to Deady's Code of 1864, are read literally, it is impossible for a district attorney to move to dismiss a criminal action in district court based on a complaint, as distinguished from an indictment. * * *' 14 Or.App. at 228, 511 P.2d at 1268. ¹

At first glance these statutes seem to support the proposition that an action could not be dismissed unless it was instituted by means of an indictment. However, a careful examination of the legislative history of ORS 134.150 and 134.160 ² does not support this interpretation.

ORS 134.150 and 134.160, passed in 1864, were originally codified in Deady's Code, Code of Criminal Procedure, ch. XXXI, §§ 323 and 324. ³ The Code of Criminal Procedure dealt with procedure in circuit courts of the state and provided that no person could be tried for the commission of a crime except by indictment. Deady's Code, Code of Criminal Procedure, ch. I, § 5. Except for those tried in justice court, all misdemeanors had to be initiated by indictment. Thus, it seems that when the legislature passed a statute providing that an action may be dismissed after indictment, it was referring merely to the formal initiation of the charge against the defendant. As a defendant may now be charged by complaint in a district court (which did not exist at the time of the passage of ORS 134.150), we interpret ORS 134.150 to mean that the court may order an action to be dismissed after the formal institution of the action, whether that be by indictment or by complaint.

Our conclusion is also supported by reference to other statutes. ORS 134.020, relating to the compromise of crimes, provided:

'134.020 Satisfaction of injured person; discharge of defendant. If the party injured appears before the court at which the defendant is bound to appear, at any time Before trial on an indictment for the crime, and acknowledges in writing that he has received satisfaction for the injury, the court may, in its discretion, on payment of the costs and expenses incurred, order all further proceedings to be stayed upon the prosecution and the defendant to be discharged therefrom; but the order and the reasons therefor must be entered in the journal.' (Emphasis added.)

ORS 134.120, dealing with speedy trials, provided:

'Delay in bringing defendant to trial. If a defendant Indicted for a crime, whose trial has not been postponed upon his application or by his consent, is not brought to trial within a reasonable period of time, the court shall order the Indictment to be dismissed.' ⁴ (Emphasis added.)

These statutes were also first codified in Deady's Code, Code of Criminal Procedure, ch. XXX, § 316 and ch. XXXI, § 320. To hold that a misdemeanor may be dismissed due to compromise or due to delay only if it was instituted by indictment would do great harm to the legislative intent. Indeed, the statutes dealing with dismissal for compromise are applicable only to misdemeanors, ORS 134.010 (renumbered ORS 135.703), and we take notice of the fact that the vast majority of misdemeanor prosecutions in this state are not instituted by indictment.

Finally, our decision that a misdemeanor initiated by other than an indictment may be dismissed upon application of the district attorney is supported by the requirements of sound judicial administration. There are many cogent reasons why a district attorney would wish to move for the dismissal of a misdemeanor complaint. To require these unwanted and perhaps unjustified complaints to either remain on the docket in perpetuity or await a motion to dismiss by the defendant would create a substantial congestion in our courts. We do not believe that the legislature intended this result. ⁵

Therefore, in the instant case we hold that the charge of driving with .15% Or more by weight of alcohol in the blood was properly dismissed upon application of the district attorney. ⁶ The defendant, however, contends that such a dismissal in district court bars the state from prosecuting the defendant in circuit court for the crime of criminally negligent homicide. He cites State v. Brown, 262 Or. 442, 497 P.2d 1191 (1972), in support of this contention. However, in Brown we were presented with the situation where the defendant was subjected to two trials for crimes arising out of the same criminal transaction. Jeopardy does not attach until the jury is sworn or, if the judge is the trier of fact, until the first witness is sworn, or until the defendant is convicted on a plea of guilty. See State v. Buck, 239 Or. 577, 398 P.2d 176, 399 P.2d 367 (1965); State v. Leverich, supra. See also Sigler, Double Jeopardy 83 (1969); Annot., 49 A.L.R.3d 1039 (1973). This court stated in State v. Reinhart, 26 Or. 466, 38 P. 822 (1895):

'* * * By all the authorities, the mere commencement of a criminal proceeding does not put the defendant in jeopardy while there is no jury to decide the question of guilt, and therefore the dismissal or discontinuance of such a proceeding before jeopardy attaches cannot be pleaded in bar of another prosecution for the same offense, unless by the provisions of some statute to that effect: (Citing authority).' 26 Or. at 472--473, 38 P. at 824.

When a prosecution is dismissed prior to trial, jeopardy does not attach, and Article I, Section 12 of our constitution does not bar a subsequent trial for a crime arising out of the same criminal transaction.

The defendant also asserts that his trial for criminally negligent homicide is barred by ORS 134.140(2) which provided:

'An order for the dismissal of a charge or action, as provided in ORS 134.010 to 134.160, is a bar to another prosecution for the same crime if the crime is a misdemeanor; but is not a bar if the crime charged is a felony.' ⁷

He contends that the dismissal of ORS 483.999, a misdemeanor, was a bar to any further prosecution arising out of the same transaction.

We do not feel the defendant's interpretation of the statute is...