State of Oregon v. Dewey

496 September January

Argued 14, 1955, 18, petition affirmed rehearing denied March STATE OF OREGON DEWEY P. 2d 799 argued Levenson, Leo Portland, the cause and filed Appellants. brief deputy attorney Christ, Robert M. district for Mult- County, argued nomah Portland, the cause for Re- spondent. On the brief B. were John McCourt, district attorney County, Raymond for Multnomah Charles E. Kennedy, deputy attorneys and James J. district County, Multnomah Portland.

Before Warner, Chief and Justice, Tooze, Rossman, Lusk and Latourette, Justices.

LUSK, J. appellants, Dewey, Dr. R. H. Doris Hofstra (spelled indictment) Hoffstra in the and Johanna jointly and Eizema, others, indicted of the crime “committing grossly disturbing public of on act peace openly outraging public decency and health, and injurious morals,” to have been com- mitted as follows: Dewey, “The said Dr. H. Dr. R. Kenneth E.

Dewey, Hoffstra, Doris Johanna Doe, whose true name whose true Doe, and Jane unknown, name is day April, A. D. unknown, on the 30th of Oregon, County then and of of Multnomah State unlawfully being and then and con- and there there confederating agreeing spiring, and with each other county day and the said in the said thereto, did on wilfully wrongfully up, equip, furnish and set state, continuously apparatus, until the and thence with 26th day keep time, and ever since said June, of public place, maintain a certain known as and Dewey City Alisky Building, in Clinic, county Portland, state, said and with the intent of Dewey, purpose Dr. said Dr. H. them, and Kenneth R. Dewey, Hoffstra, Doe, E. Doris Johanna unknown, Doe, whose true name is and Jane whose wilfully, wrongfully and unknown, true name is unlawfully procuring committing, producing and upon pregnant public place, women abortions said having equipped, up, child, furnish, set with kept and so public place intent and maintained said with the purpose H. R. and for the the said Dr. aforesaid, Dewey, Dewey, Dr. Hoffstra, Kenneth whose Doris Jo- E. Doe, unknown, hanna true name is and Jane on the 25th Doe, unknown, whose true name is did day public place June, 1951, in the said known wilfully Dewey county state, in said and Clinic wrongfully produce commit and abortion and Cowles, then one Ila the said Ila Cowles, she, being pregnant child, and and there woman with day April, the 30th did then and there between day 1951, and ever since June, 1951 and the 26th said wilfully wrongfully pro- and time, commit pregnant duce women then and there are child, to the of which women the names numbers contrary Jury abortions unknown, Grand provided, made and in such cases Statutes against peace dignity of the State Oregon.” charges 161.310, a violation of ORS The indictment generally v. “Nuisance Statute.” State known as the 46 P Nease, 433, 440, Or 80 897.

500 first con-

The defendants hereinabove named were charged appealed victed have from the conse- quent sentence. questions by the first con- raised defendants’ that the indictment does not state facts suf-

tention, vis., because the statue under crime, ficent to constitute brought vague- prosecution is void for which the was charges for ness and because the indictment acts which punishment expressly provided by the are Code, by Elliott, at rest our recent decision in set State (rendered P2d after the briefs in 206 Or 277 754 82, filed), present which reaffirmed case 102 P Atwood, doctrine of State v. Or decision in the Elliott case P 195. Because for the contention learned counsel defendants waived argument. at the oral assignment error the defendants a second

As committed reversible error assert the court objections overruling defendants’ to the admission incompetent testimony claimed certain judicata estoppel judg- under the rules of res of the acts in the indictment was ment. One “wilfully the defendants did 25,1951, on June wrongfully produce commit and an abortion one Cowles, said Ila then and there Cowles, she, Ila pregnant being Ila child.” Cowles was woman with state. Before she called as a witness testified attorney prosecuting informed the court that the Dewey, along R. the defendants, H. defendant, Dr. had been indicted Eizema, Doris Hofstra and Johanna manslaughter by performed abortion the crime Dewey separately had been Ila and that Cowles point charge acquitted. At a later on the tried record in that case received in evi- the trial the was returned the indictment dence. It showed July judgment acquittal 6, 1951, and a of the de- Dewey, Dr. H. E. fendant, entered December 1951. 17, The indictment in case now under consideration July also returned 6, but the 1951, trial was not commenced until 1, June 1953. having

After advised the court of this situation, prosecuting attorney purpose stated that testimony given by to be Ila Cowles towas show arrangements made with the defendants connection performing with their business of unlawful abortions. appropriate objections Over of counsel for the de- permitted testify fendants the court the witness to following to the effect: She stated that her home was Eugene, that she was a married woman with two pregnant and that children, on June she good day with child and health, on that went Dewey (the to the Clinic name under which the de- Dewey, Dr. operated) fendant, E.H. to have an abor- tion. She saw the defendant, Doris Hofstra, slip paper, whereupon office and showed her a Doris Hofstra said: yes, anything give “Oh, there isn’t to it. We only abortions all the time. We’re the ones that give nothing it anesthetic. There to it. girls

We do it all the time for from California they go home in about four hours.” Acting under the instructions of the defendant, put hospi- Doris Hofstra, the Ila witness, Cowles, on gown tal and waited for about an hour a small room in the defendants’ suite. defendant, Dr. H. E. Dewey, finally pelvic came and made a examination pregnant. and told her she was three months She said pregnant. that she was two months After that charge Mrs. Hofstra told her that the would be $310.00, but the witness said that she did not have that much price

money, her Mrs. Hofstra then came down in that she have The witness said wonld $210.00. accompanied had her to mother-in-law, her see who waiting Engene for her in the Portland from and was Mrs. Hofstra said there would automobile. charge examination. The witness $10.00 sought paid her mother-in-law, and, this amount, out finding they $180.00, of them had that between two money, they Dewey both Clinic with the went Dewey (one paid defend- Kenneth E. to Dr. ants), to him her wrist demand, at his delivered and, payment remaining Dr. to $30.00. watch secure Dewey required also and her Kenneth E. witness sign concerning printed form which mother-in-law law, outside of the said, know, he “You this is protect anything you sign us if should have this happen.” did not know what words witness Thereupon, printed witness, form on the were. Dewey’s acting instructions, Dr. E. under Kenneth put hospital room and on a into the same little went sleep gown, if could. told to lie down she and was on visit further testified that a second The witness Dewey she several little rooms with Clinic saw in which there was an and another room cots them you stirrups operating on side that table testified that When Dr. could and lower. She raise Dewey pelvic examination had tools H. R. made the he testimony far as the like doctor. This is as concerning experience went her witness, Cowles, Ila Dewey with the Clinic. Ila Cowles,

Mrs. the mother-in-law of Brown, Clara she had first-hand the latter insofar as corroborated knowledge Ila testified. the facts to which Cowles given relating to this issue was

Additional evidence by and Bobert Ila, Arthur husband of Cowles, Donald police They Vernon a former officer. both Mollett, testified to a conversation on former’s home July between and the Doris 2,1951, defendants, Cowles Hofstra Eizema, and Johanna and which was over- by listening Mollett, heard who in another room by to phone voices were carried means of a micro- purpose. that had been installed for that Accord- ing testimony they to this the named defendants said Dewey. were nurses for Dr. Cowles testified: “They ‘you type said, know the of business we grapevine. irony do. It is over the And the of it all is policemen that we do district and court house wives and ” attorney’s office.’ Mollett testified he heard the defendant, Jo- hanna Eizema, make statement: probably

“Well, she mentioned that he had type thing they grape- heard of did actually vine and didn’t name it she name ex- cept deal point great at one she did mention there awas irony commotion in Portland and that the thing they they of the whole was that did, had as patients police people the wives of officers and from the court house at Portland the same sort thing.” prosecuting attorney stipulated that the fore- going testimony of Ila Mrs. Cowles, Clara Brown, Donald Arthur Cowles and Mollett in was substance given by them in the trial of the Dr. defendant, R.H. Dewey, manslaughter by for abortion.

Although inadmissibility foregoing urged is on of evidence behalf all the defendants, the objection any in can no event be available to of them Dewey, acquitted R. other H. alone than Dr. he was manslaughter charge by abortion. argument pro The of counsel for the defendants upon assumption every ceeds that fact erroneous directly prosecution in the former issue was neces-

504 by acquittal.

sarily That determined the verdict of Oregon this not the law either in or elsewhere we is readily think can be demonstrated. parties agreed of res

The are that the doctrine judicata estoppel by judgment applicable in is Judgments (5th ed) 2 on criminal cases. See Freeman Oppenheirmer, § 242 85, US 648; 1364 United States v. Erwin, v. 516; 61 L 3 ALR 161, 68, ed S Ct State In 120 P2d annotation 147 ALB 992. 285; Utah by it is so declared statute. 43-160 state OBS provides: only judgment, “That determined a former is appears upon its to have decree or order which face actually

been determined or and neces- so which was sarily therein or thereto.” included foregoing provision, always enacted in has The part been of the Code Evidence this state. See Deady’s Oregon, § p 315, 726. General Laws applicable to is made criminal cases section reads: 136.510,which OBS ‘‘ also the in civil of evidence actions law proceedings, actions and law of criminal evidence provided specially except in the stat- as otherwise procedure.” relating to crimes and criminal utes subject this court, In its consideration uniformly made a between like has others, distinction action is the same claim eases in which the second upon it is as the those which first, or demand In former case the claim or demand. different judgment, bar and if absolute merits, privies parties and their concludes the actually litigated every but as matter might litigated. any But have been other matter issue the latter case is essential first issue in the action material second Beezley City necessarily determined therein.

505 177, 126 269 P 60 ALR 504. Astoria, 188-190, 216, Or in v. Vincent, 212, As we said 152 52 205, State Or judgment superior operates “the in P2d action 203, estoppel as an as to those in matters issue or points upon determination controverted of which finding or verdict rendered.” also, was See, & Bank v. Davis, Fruit Growers’ 93 655, Farmers Or Boring P Roots v. 665, 666, 184 275; Co., Junction Lum. 50 92 P P 298, 811, Or 94 Heilner v. 182; Smith, 49 Or 88 P La 42 14, 299; Mitchell, Follett v. 465, 472, Or 471, Rep 69 P 95 Am St 780. 916, Beezley quoted approval

In the case we following by statement the rule Mr. Justice Field L Place, Russell 94 24 606, v. US ed 214: undoubtedly judgment “It is settled that a law competent jurisdiction, upon ques- of a court of directly tion to that parties. it must involved in one is suit, conclusive in another suit between the same operation judgment But to this appear, either the face of the record precise or be shown extrinsic evidence, question was raised and determined former any uncertainty If suit. there be on this head example, appear if record,—as, that sev- may litigated, upon eral distinct matters have been judgment may passed, one or more of which the have indicating litigated, without which of them thus judgment which the rendered,—the subject-matter large, whole of the action will at open to a new contention, unless uncer- tainty showing be removed extrinsic evidence precise point ap- involved and determined. To ply judgment, give adjudication effect actually when the record leaves matter made, doubt, such evidence admissible.” v. L See, Sickles, 580, Packet 72 18 also, Co. US County, ed L ed v. Sac 94 US 24 550; Cromwell 195. Savage, Wagner decision

Our most recent 161, 244 P2d where the was whether 128, Or specific in a for a decree for the suit defendant, convey performance agreement of an oral to upon oper- plaintiff property death, defendant’s his subsequent assump- estoppel in a action of ated as to of the same serv- sit recover the reasonable value plaintiff in suit the had ices which the first agreement. for the consideration the oral constituted per- findings specific for As there were no in the suit merely equi- recited that the formance and the decree against plain- defendants and ties were with the prejudice; as and, the suit with tiff and dismissed or a different claim demand the second case involved way therefore, no first, was, from the and there determining upon of the several issues made which by pleadings had its we decree, the court based judicata plea not sustained. held that of res v. Ruckman Counsel for the defendants relies Railway P 69 LRA Co., 578, 581, 748, 45 Or Union Wagner Bisaillon, 153 Or 480; case; Winters 968, 104 ALR all of 57 P2d 509, 513, 514, 1095, language that, used the effect where from claim or demand action another second except judgment bar, is not a “the former first, directly actually questions or determined as language may be found in other The same issue.” 105 Or Runnells v. Leffel, of our decisions. See P207 867. though even that, seems to be The contention claim or demand a different action involves second by plead- put in issue matters first, from the ing all conclusively to have been deter- deemed must be anything to not there is show mined whether or they necessarily actually determined. either were theory. not bear out decisions, however, do Wagner example, for not have case, could been sound, decided as it was counsel’s contention be- cause there one of the facts in issue the rendition of the services recover the value which the second brought. from action was Yet held an examination we of the record before us that that issue had been necessarily Although determined first suit. judgment Winters v. Bisaillon the in the first action estoppel was held to be available as an second, upon any the decision was not based such view of judicata doctrine res is contended defendants. The case arose out a collision between an ambulance driven Winters and an automobile by driven Bisaillon. first Winters sued to recover personal injury, jury for and a trial in a resulted sought verdict for the He defendant. then in another damages injury action to recover for to his ambulance plea by estoppel judgment. was met with of plea particular was sustained because of the cir- injury cumstances in the first neither case proximately nor the fact that it was caused dispute; collision was in the second case, therefore, jury necessarily was held that the verdict of the negli- determined either the defendant was not gent plaintiff guilty contributory or that the was of negligence. plaintiff And, since the could not recover in the second action both unless issues, these involv- ing they as did the same accident, were decided in his estopped he favor, was to maintain the action. The governing quoted principle 2 Freeman on from Judgments (5th ed) §693 1465 as follows: by necessary “Matters which follow and in- adjudication evitable inference from because the

judgment could not have been rendered without 508 determining effectually them are as concluded there- adjudicated.” though specifically as terms rule no different in criminal cases. Where prosecution “the offense, is for another second judgment

previous is conclusive to those actually in fact issue and matters adjudicated. acquittal necessarily Thus an adjudicate charge of seduction does not although that one of the intercourse sexual acquittal might have been case, issues since other essential to the failure establish due facts Judgments (5th ed) 2 on conviction.” Freeman to a Dangel, § Harris See, also, 351; Criminal Law 1365 648. ALR State, 573, 980; 193 17 SE2d 147 109, v. Ga P2d v. 234, 63; v. 5 Wash2d 105 Barton, State Sealfon L 68 S States, 180, 237; 332 US ed Ct United Meyerson, 24 855; v. F2d United States States United Erwin, v. 101 Utah Morse, 24 F2d State 1001; v. State, Coblentz, v. 57 Md 108; 120P2d Bell State v. 285; Md A 159, 180 266. Meyerson and United v. States United States appli- supra, afford illustrations both Sealfon, In the former case a defendant cation of the rule. acquitted charge Katz been us- named had executing ing purpose mails for the scheme prosecuted under an He was thereafter to defraud. conspiracy violate section of the indictment charge involving Bankruptcy Act, National alleged in the first indictment. same fraud On as acquittal quash of court held that motion to charge a bar to the second Katz on the first was prosecution. however, not from determined, This was inspection and verdict two indictments a bare of the acquittal from an examination in first but case, case, in that which included of the trial of the record acquittal directing ruling a verdict court a of the conclusively ground determined which conspiracy party been a to not have Katz could Similarly, indictment. second acquitted was Sealfon, defendant, case the Sealfon charging conspiracy to defraud upon an indictment convicted of afterwards States, but was the United first indict- involved the substantive offense Supreme conviction was set aside ment. The Douglas, opinion by in an Mr. Justice court, Court. conspiracy to offense and that the substantive said separate offenses, distinct commit are judicata “operates matters to conclude those res though the offenses determined issue the verdict which jury’s verdict in the con- “the be different.” Whether peti- spiracy a determination favorable trial was to conviction of the sub- tioner of the facts essential depended “the facts adduced offense” stantive jury instructions under which the at trial and the each From an verdict at the first trial”. arrived at its particular and in matters, of these examination “keyed given on the first trial instruction particular found that case”, facts of the court necessarily acquittal determined that the verdict agreement an did not enter into with agree- the defendant a certain letter, another defendant write prosecution’s in each case ment “the core” case. supra, Barton, where hand, the other in State v.

On acquitted crime was at first the defendant degree in the course of committed murder the first robbery robbery later indicted for the same judgment guilty, held that found the court operate estoppel guilty in the first case did not notwithstanding con- the defendant’s in the second, 510

tention first verdict was based on defendant’s defense alibi, and, therefore, claimed, as was con- clusively present determined that he not was participated robbery. could not in have The court said: prosecution appellant’s

“In the murder de- fense of fact set out alibi the various related matters special plea in detail in his amended actually necessarily adjudicated, were not or nor ap- limited, can it be said that the issues were pellant information Every contends. material of the placed by appellant’s was issue guilty, plea of not and the state had the burden beyond possible proof reasonable doubt. It not is jurors to determine whether the returned a verdict they testimony acquittal of support because credited the appellant’s alibi, or for reason that they found the state’s insufficient as to evidence essential elements of one more the offense They utterly disregarded charged. could have all testimony appellant of the adduced his yet have returned verdict of defense not judgment guilty. The verdict and the based thereon judicata appellant’s not, therefore, res as to were They any particular alibi, nor as to other fact. judicata as to the ultimate fact that res guilty appellant of the crime of he was which accused.” was state of facts different result similar

Under Georgia court v. State, in Harris reached preferred supra. decisions is to be of these "Which importance they at both moment; a matter of no principle which we have heretofore for the stated stand recognized by all text on writers and which majority subject great Ap of the decisions. and the general parently opposed rule are United States v. Rachmil, States Clavin, 985, 272 Fed United v. acquittal upon that an both of which hold 869, 270 Fed conspiracy subsequent is a bar to a an indictment

511 offense prosecution of the substantive for commission conspiracy. object As stated Supp de F these Holbrook, United States ’’ ‘‘ majority cases. with the are out of line cisions Jeopardy and Res Lugar, Double Law, Criminal See LIa Rev 337. Judicata, of present a different is for indictment first indictment than that fense alleges the nuisance that an incident of case. It produced wrongfully committed defendants being pregnant upon a she woman Cowles, Ila abortion permitted to introduce the state The court child. with arrangements Ila made Cowles with of evidence of circumstances indica abortion, for an defendants arrangements, perhaps, fact of and of the such tive, pregnant a at the time woman. Ila was Cowles manslaughter by abortion, the crime of elements of Dewey, acquitted, H. R. Dr. defendant, of which administering pregnant (1) to a with child woman are drug any or the use of substance, or other medicine, of thereby intent to means, or other with an instrument destroy (2) the same is unless child; such (3) preserve the death of the mother; the life of the fol 163.060. The indictment the mother. ORS child or language and the burden was statute, of lowed the beyond prove a reasonable doubt all the state to prove any allegations. one Failure so its essential guilty. of not authorize verdict We of them would part the record in the former case us no have before except question pertinent consideration, under guilty, plea of not and the verdict. indictment, testimony knowledge concerning given on Our stipulation from the that case comes trial of attorney, referred, we have to which the district testimony four heretofore summar- witnesses, given inwas substance on the other ized, trial. The impossible not here. is, instructions are It therefore, say ground acquittal what the verdict of or whether the based, state failed to one or all being of the essential elements the crime. There no extrinsic evidence to aid in a determination of the question, subject-matter “the whole of the action” is, supra, as Mr. Justice Field said in Russell Place, large” “open “at to a new contention.” The ver- therefore, was not a conclusive dict, determination of question objected the facts and the evidence to was properly admitted. they further

The defendants contend that were en- acquittal titled to directed verdict the reason “openly acts but done,” privacy physician’s rather office. This likewise is foreclosed the decisions in the quoted Elliott and cases. In Atwood the former we following approval the from the Atwood case: “* # * They openly outrage public do de injurious cency, public and are to morals, and such charged, though is the effect of the even acts ’’ place, public public. in a or in done view of the

The evidence in the at case bar shows that the Dewey spread fame the Clinic had as far as Cali and had from fornia attracted customers that state. Its notoriety engage to was such as the attention of Susan investigator attorney an for the district for Oester, County; of Multnomah Miss Maris Patricia a Lillie, reporter police and Rolla for officer; Crick, Oregon Dewey two Journal. first visited the Clinic purpose obtaining They repre for the evidence. pregnant, pretended sented themselves to de arrangements sire and made to that end. abortions testimony was in substance much like Their that o.f represented to Crick, Eolia witness, Ila Cowles. Dewey, “had that he E. Dr. Kenneth defendant, baby have couldn’t girl that we trouble, friend obtaining about information after and, at this time,” operation proposed cost, and its of the method day appointed bring on the agreed the clinic her to previously having As purpose an abortion. for the any state’s no contradiction there was stated, testimony impossible without to read It is evidence. en- reaching that the defendants conclusion operating mill”, “abortion which gaged a full-scale decency public open within affront constituted meaning decisions. See and our of the statute NY People aff. 189 103 NYS 1000, Hoffman, NE 1130. argued, the state failed to however, that

It is corpus that the delicti because there is no evidence any an abortion woman committed defendants pregnant child. with prose- are under which

The statute defendants reads: 161.310and cuted is OES expressly prescribed punishment for “If no any person statutes, the criminal who act willfully wrongfully any commits act which injures person property grossly or of another, public grossly peace health, or or or which disturbs decency openly outrages public injurious conviction, shall morals, county jail by imprisonment punished in the for months, nor than than month more six one not less nor more than fine not less than $200.” $50 supra, Elliott, in State v. The indictment language the indictment here save identical necessary changes places, dates and we names, charge gravamen “the there said unlawfully keeping maintaining and a indictment 514

public place purpose producing illegal for the abor- grossly public tions, peace which act disturbed the openly outraged public decency, and health being and injurious public allegations morals. The in the in- respecting conspiracy, dictment abortions, etc., were merely elements, incidents, means or circumstances by which the substantive crime was committed and not the substantive crime itself.” People supra,

As the court said in v. Hoffman, “The thing. maintaining abortion is one offense That of premises open public purpose for the of con- summating separate is another and crime offense against peace good and order of the state.” necessary prove

If, however, it was for the state to actually Dewey that abortions were committed at the ample there is Clinic, evidence from which this fact People could inferred. v. Curtis, NYS aff. NE 206 NY 1131, was an indictment for the committing maintaining offense of and nui- by keeping maintaining building sance for the purpose committing performing unlawful there- charging abortions, unlawful that such abor- performed Testimony police therein. tions of a officer similar to that Eolia witness, Crick, in acting case and of two women as detectives similar of Mrs. Oester and Miss Lillie, was cor- held, rectly “a think, as we to make it of fact as actually place opera- to whether was not where performed persons tions were harbored as ’’ in the indictment. It performed

indictment that the defendants an abortion suggested, allega- on Ila has been If, Cowles. description tion constituted an essential element in the particular charged, proof nuisance without

515 maintaining np setting the offense which parity reason- then, out, not made nuisance was alleged were that abortions ing, had indictment if the naming pregnant them, performed women, 10 or 100 on charges any would prove or more of such one failure per- are not case. "We fatal to state’s been have is the law. that this suaded supra, a con- is cited as Atwood, v. which

In State only question trary in- was whether decision, to constitute a crime. facts sufficient stated dictment sufficiency question p no There was at 529. 54 Or proof. to the one indictment was similar present that and the defendant contended case, among others, for the reason, insufficient was any showing allege unlawful abor- facts it did rejected The court this conten- committed. tions were saying: tion, charge is that the house was maintained “The willfully, wrongfully purpose of intent and unlawfully producing abortions. not the It was charge purpose that the inten- of the indictment to commit the crime of defendants was tion of the

killing producing under 1748, abortions Section they conducting Comp., a busi- B. but that & C. decency outraged openly public ness that injurious and the business morals, was charged clearly comes are the defendants with which pp at 536. terms.” 54 Or those within court further said: allegations Mahala of abortion “The do not state facts and other women Roberts B. & under C. crime Section constitute only allega- Comp., are not intended but to, and are purpose performance of the done in the tions of acts charged, are elements and intent charge separate offense: and do not of the nuisances (97 46).” Waymire, Pac. v. 281 Or. State charged against The court concluded that the acts per defendants constituted a nuisance se. The court was not called to decide whether a failure to specific abortion would amount to proof though a failure of even there substantial actually performed by evidence that abortions were place defendants in the described and that the house purpose. was maintained for that No such presented. The decision, therefore, not a con- trolling precedent here. Waymire,

In State cited in the case, Atwood nuisance consisted defendants, acts two designed accomplish a man and a woman, which were purpose exposing mayor city their of the public disgrace seemingly engaged Portland to as one attempt in an to ravish the defendant. The woman outcry woman defendant a was make loud and the lying who in man, wait, was would then break and supposed shatter the door of the office in being attempted, attracting crime was a thus “con- course of the citizens.” The defendants had their each separate parts play carrying conspiracy, in out their and combined acts of both were essential order to produce respect the intended result. But entirely at is different, and, case bar had there been at all Ila no evidence about there still Cowles, would charged. have been sufficient evidence of the offense governed by here is not the rule that for an where the indictment is offense which is local larceny building, burglary, in a nature, its such as or liquor maintaining allegation a nuisance, to as place necessary part description a of the proved and must be laid. 2 Wharton, as Crimi- offense (11th ed) § An nal 1862 1062. Evidence illustrative charge State, case is Dennis v. 91 Ind 291, where the slaughter maintaining a nuisance, to-wit, a was Josephy Noble Loehr, “near the residence house, being alleged it that the Scott,” Warrum Rufus slaughter-house, etc., from the smells offensive quoted phrase named individuals and others. The regarded by description, the court matter of was “as although alleged unnecessarily, and it was was a material affidavit and information, averment in the yet, having alleged, proved, it must be under the been precisely charged, court, decisions of this as variance held that will be fatal.” Therefore was referring an instruction to the location of which, slaughter-house, omitted the name of one of the phrase three individuals mentioned in the we have quoted erroneous. Fulk v. State, 19 Ind application simliar Both decision. cases involve “Where there is which de rule qualifies, or scribes, defines, limits matter to be charged, descriptive it is taken as a averment, general proved rule obtains that it must be as laid, though particularity description such even is un necessary.” op. Among §1090. 2 Wharton, eit., 1911 money other cases cited the author are several where unnecessarily to have been stolen was described “money proof failing in this U.S.”, and, the particular, p. the conviction reversed. See 17. A similar note was involved State v. though P Neilon, 168, 174, 321, 43 Or 73 the court found unnecessary to decide it. Upon subject surplusage in the indictment says: Bishop Mr. necessary unnecessarily “If a is made description, satisfy proof minute must descriptive part, main as well as since the one is identity Thus,— essential to the of the other. adjective, prefixed “A needless to essential

518 being descriptive rejected,

noun, of what cannot be proved must malicious mischief to if also; as, be the indictment is for trees, ‘white-oak’ or for lar- ceny by aof horse described its sex or or color particulars things, wholly brand, these un- unecessary proved, to stated, must be or the Bishop’s 2 variance will be fatal.” New Criminal (2d ed) p. Procedure 401. any ques are concerned in We not this case with place object. of identification of or tion The nuisance setting up maintaining place, specifi consisted of cally designated, together necessary equip performing for the ment, abortions and the actual place. performing things of abortions All these amply proved. There are numerous classes of cases in which it is prove alleged failure to all held that is way not stand in the of a indictment will conviction. may prosecutions charging these be mentioned Of conspiracy, prove in which it not all (Short alleged v. States, acts United 91 F2d overt 969); contributing 112 ALR. indictments for delinquency of a minor in it is which sufficient one or more of the acts of misconduct (State 455); Moore, Or P2d 232, 240, obtaining money prosecutions property by or false falsity proof pretenses one or more of required pretenses alleged (22 is all that is Am Jur 99). § False Pretenses argued in effect that cases of this kind It are pertinent prosecution to a under the nuisance stat- jury grand attorney or the district ute de- where the complaint. fines the crime the indictment But power legislature has to define a crime. prosecution brought under which this The statute language against cover intended its offenses “was

519 and the public public health, peace, morals, not elsewhere made by the punishable Code, and which at common were known law as ‘indictable ” State nuisances.’ Waymire, supra, v. 52 at Or p 285; are, therefore, “We to required resort the com- mon law to ascertain act what ‘grossly outrages public decency contrary good morals,’ as applied to criminal Id. prosecutions.” indictment states but the as the charge, court, Waymire case suffi- ciently shows, determines whether the facts alleged constitute a crime as defined legislature.

It cannot be said that without of an abortion on Ila Cowles the grand jury would not have found the defendants’ activities to abe violation of the A statute. contention of that kind was considered by the court and rejected in People Haynes, Wend 557. The indictment (NY) was for obtaining property by false pretenses, and defendant argued that proof of all the pretenses was essential support conviction, the reason that “the indictment shows that the grand found the jury goods were trusted the faith of all the false pretenses set forth, and that without the existence and falsehood of all, we must presume would not have been found; and to a conviction permit proof only part them, would abe conviction of an offense different from the (cid:127)one contained the indictment.” con- Answering this tention the court said: “* * * These reasons were urged against position of the false part pretenses need be if proved, sufficient themselves to convict.

If all were material to constitute the offence charg- ed, the argument would be and it sound, would follow that all should be else proved, conviction would unjust; be but the position need part only be assumes proved, they may must suffi- be bring statute; eient in law to the case witbin the possible I am and then unable to discover how it is injustice prisoner can if done convicted. all that in know indictments declara- “We only many not are often em- tions, counts added bracing more offence, the same and that or two the sometimes set forth in distinct offences are same of proof count, caution; from abundant but the always the in one authorizes So conviction. objection grand perceive no case. We can jury any pretences, setting false out number of may any them for which there greater if be evidence before specifically; negativing and each caution, traverse, the turn on that there were it should out true, laid than or material to establish more rejected they may surplusage, and offence, the proved. that not be The result would not show .need prisoner offence, different was convicted of charged by grand jury, one but from the jury grand had found in the indictment more offence. than was to constitute the matter essential prisoner have notice the offence would something charged against and more.” him, (NY) People Townsend, v. Hill said in 3 So it was erecting and main- was for 479, where the indictment vegetable taining and sub- caused animal a dam which large pond quantities to accumulate stances making corrupting it dam, made water always and offensive: “It noxious prove every indictment, contained averment twenty ways prosecutor different and if had stated a have been nuisance, would in which the dam became injury any one of arose in sufficient ways.” those for

In Me the indictment was Beal, State maintaining erecting a a certain nuisance, to-wit, public highway. in- piazza a obstructed particularity piazza described the with dictment however, showed, metes and The evidence bounds. part piazza part was without street in- and the defendant contended that as the within, piazza that the nuisance dictment whole there a fatal variance between rejected. recog- proof. This contention was The court thing necessary person nized rule “that or when in an indictment is described even be mentioned with unnecessary particularity, all the circumstances proved; they description must be for are all made indentity, 1 essential to the G-reenleaf on Evidence, particulars proof § and a variance 65; fatal, proof identity may depend upon preciseness description.” The court continued: “ * * * complaint But in this case no is made exceptions argument piazza

either that with particulars proved described was not suf- particularity; complaint ficent but all is that piazza proved the the so and described was not within another, And and, street. this raises we think, question, a different and that is, does the failure prove the of an offense to extent charged tion and laid down Mr. Wharton allega- in a result fatal variance between necessarily. proof. We think not It is by in his work on Criminal prove allegations § Evidence, 145, that failure to quantity magnitude in number, their en- tirety tanto pro proof a is not fatal where the variance, supports charge. think case And we this principle piazza falls within of that rule. The charged wholly in this case a nuisance, to be description, sought to the limits of the and the state prove prove that fact. If the failed to it to state extent, the full true, is not the less admitted as argument, piazza parts in If one were placing it be reasonable that in a was nuisance. by creating a nuisance log twenty long a street, feet in the would prosecution must hold that the appear fail if it that of one should six inches end beyond line? think it of it extended the street We log not. And what would be true of would true of a piazza. requires nicety no The law such By holding, right pleading. so no even criminal jeopardized. His defendant is defense is thereby or uncertain.” made more difficult ample foregoing authority think We that the although that, our In the court held effect, decision. prosecution charged a nuisance had more extensive proved, proved if constituted a than it what it still, questioned that was sufficient. It cannot be nuisance, proved in case constituted a nuis- that what was this proof the abortion on Ila ance, without Cowles. allegations respecting indictment abor- unnecessary do not fall the rule that tions descriptive within proved, as was said but, averments must be “merely incidents, case, elements, the Elliott are crime means circumstances which substantive was committed.” it is established com

We conclude where petent that the case, as it was defend evidence, up place ants set maintained purpose performing illegal equipment for the abor pregnant women, tions there is evidence from found that such it could be were ac abortions tually objection performed, nuisance has proven charged, not been because failure to alleged, particular abortion is without sub stance. arguments support brief defendants’

Other proof corpus of their claim there no lacking clearly they are in merit that do deliciti so not call for discussion. judgment error in the record and the is

There no affirmed. dissenting.

TOOZE, J., majority I dissent from the result reached judgment opinion. I am convinced that the of convic- as to all defendants tion in this case should be reversed and remanded for a trial. new opinion, assuming purposes I am

For the of this majority’s interpretation application of estoppel by judgment applies doctrine of as it to the Dewey although upon defendant based correct, (1), logical might 136.620 effect OES decision be contrary. Proceeding, upon rendered to the however, assumption my solely I shall direct attention stated, light the result should what rights must not We overlook the fact that the thereof. other are involved here, two defendants as well as rights Dewey. the defendant Those defendants, manslaughter charge, have not who been tried on the way are in no concerned here in the of res doctrine judicata.

It is conceded that trial of the instant ease attempt prove the state did not nor that an performed upon unlawful abortion was one Ila charged an essential Cowles, as element of the crime my opinion the indictment. It is that this amounted to proof to failure as to material crime constituted a fatal and, therefore, vari- ance. specifically alleged

It is in the indictment: “* * * Dewey, E. the said Dr. H. Dr. Ken- Dewey, Hoffstra, neth E. Doris Johanna Doe, whose true name is unknown, and Jane Doe, whose true day unknown, on 25th June, name is in the said in did public place Dewey known as the Clinic county wilfully wrongfully and state, said produce commit and abortion one Ila Ila then and there Cowles, Cowles, the said she, being pregnant and did then child, with woman day April, 1951 and the 30th of and between there day and ever since said June, 1951, time, 26th of the wilfully produce upon wrongfully and commit and pregnant which child, and there the the then women names and numbers of women are to * * Jury *.” abortions unknown, Grand majority prove to “It not The states: allegation of indictment defendants the the my opinion, performed Ila In an abortion on Cowles.” long established that statement is in direct conflict with proof elementary pleading in rules of in and, fact, elementary under those same criminal cases. And specifi- pleading proof, had the indictment rules sug- charged particular cally abortions, as 10 or 100 majority opinion, gested have in the state would every required of them. one each been absurdity suggested lie in situation does original requirement proof, in in- as to but charges specific in indictment. Such sertion of the unnecessary particularization to state is, course, fully but statute, nuisance a crime under so-called it its then is bound case, elects so to state if the state alleged. prove any it is case, criminal a conviction To warrant by proof beyond upon state to establish incumbent every essential element each and reasonable doubt any charged; or if it to establish one the crime fails prove its case. it has failed to of such elements, more premise. agreement majority opinion on this is respecting the abortion Therefore, if the part the crime a material Ila is Cowles that there has been a then it obvious case, is proof. failure the instant case under which statute 161.310,

ORS being is provides: prosecuted, prescribed no punishment expressly

“If any who statutes, person the act criminal commits act which willfully any and wrongfully another, or property grossly injures person or health, grossly public peace disturbs decency outrages or which openly public morals, injurious conviction, shall county jail punished imprisonment month nor more than six for not less than one by more than or not less than nor months, fine $50 (Italics mine.) $200.” which is no statute this state specifically

There of or alleged nuisance crime acts as a the public defines case. in the indictment in the instant 161.310, ORS is any not crime. It sort supra, specific does define cover all of a catch-all criminal acts statute, designed and not defined specifically prohibited otherwise It no nor yardsticks by law. contains standards are to weighed, acts alleged wrongful except generalization: “any grossly injures broad act which or of or which dis property another, grossly the person or or which out peace health, openly turbs the public ’? injurious public morals. public is rages decency under it Therefore, statute, every prosecution left or district grand jury is necessarily act or attorney particular to determine what initially nuisance within combination acts constitutes public jury its expresses the law. meaning grand in an the district indictment; attorney, determination indictment, In in an information or its complaint. which it the conditions jury portrays charges grand or health peace openly outrage disturb public the public and are decency injurious the public it act or combination acts morals. The particular charges particular in the indictment constitutes the prepared nuisance which the defendant must be against; particular to defend it is the nuisance proved by returning must be the state. In an indict exclusively province grand jury it is ment, alleged to so describe nuisance. It its cloth cuts according to its own measurements; builds and the house, house must be maintained and sustained might alleged public as erected. The that it have fact particularization, nuisance with less the omission particular charged, wholly one or more acts is thing incorpo immaterial. The material that it did alleged part rate the acts in the indictment charged, alleged public nuisance it and that is the something before nuisance us consideration, not different.

If the in the instant indictment concern- ing abortion Ila is not a Cowles mate- allegation, necessary proved, rial to be then it must- surplusage, be immaterial and issue in the case. If it is not an issue in the then all the case, dis- majority opinion concerning cussion found in the estoppel by judgment unnecessary doctrine of may surplusage. be considered as likewise as I But, point allegation shall out, later the is not immaterial, may surplusage; contrary, nor it be treated as on the particular an is essential element of the nuisance charged pending in a material indictment, the issue required in the case, and the state it in justify order a That conviction. the an essential element of the nuisance is estab- by lished our own decisions. v. Atwood,

State 54 102 P 104 P 526, 295, Or involving is the first of our a decisions situation similar to that in the case All at bar. our later decisions have upon even as ease, and the Atwood followed been based constitutionality itself. the statute to the nuisance allegations instant indictment are appear case indictment Atwood same as the later indictment in case State and also in the names and course, 277 P2d 754. Of Elliott, 82,Or are in different, but otherwise indictments dates are language. and form same charged: the indictment In the Atwood case * * “* having up, set furnished, and so kept equipped, house and and maintained said place purpose the said aforesaid, the intent and with day and Atwood, H. 4th Atwood and C. on the C.H.T. public September, in the said house ‘maternity place, hospital’ known as the aforesaid county wrong- willfully and state, in the said and did fully produce upon one commit and abortion Roberts, Roberts, then she, the said Mahala Mahala being pregnant child, a with and there woman and day there, and said 1st of Jan- did then between uary, day November, 1908, 1st 1908, and the said willfully wrongfully produce commit and pregnant child, then there women names and numbers of which women

are to grand jury contrary abortions, unknown, * * (Italics mine.) statutes directly assign- raised But one “ in- ‘that the case; error i.e., ments of Atwood arraigned dictment which defendants were not facts to constitute convicted does state sufficient crime’ ”, misdemeanor urging, first, “defendants the acts were acts, and a manner were not exercised such lawful injurious decency, openly outrage public or be as to pur- public morals; intent second, to pose charged, public does act, followed unless that no nuisance; constitute third, facts alleged showing are an abortion; fourth, unlawful produce unnecessary that it is not unlawful quick abortion, the woman unless with child. De- alleged fendants’ counsel insists that the facts do not crime, constitute a because it is not quick the abortions were committed women contending producing child, with that otherwise argument abortions is lawful. Much of his based assumption, and he assumes that a neces- sary element m a violation Section B. & C. Comp., defining manslaughter by producing abor- quick tion, is that the woman be with child, and this quite prevalent. question view seems to be This has never been before this court for decision, and the opinion accept writer of this is not able to defend- question ants’ It seems to be an view. unsettled producing whether an abortion anwas offense at quick except commonlaw, when the mother was child.” proceeded

The court then to discuss thorouarhlv the whether was to constitute the manslaughter by crime of abortion that the woman pregnant quick Deeming with child. a determination particular question unnecessary of that to its decision the court case, continued with its discussion deciding without it. It then said: attempt charge “The indictment does not any procuring violation of statute in the of abor- tions.”

Immediately following that statement, the court up took its discussion of the nuisance statute. ORS supra. 161.310, It then stated: clearly complained “And the acts in this in- injurious public are dictment morals, and we conclude that such acts nuisance, constitute a al- though performed public place, may in a or peace quiet community not disturb or public. They [the charged] acts of abortion do injurious decency, openly outrage are acts public effect of the and such is the morals, to place, though public charged, or done in a not even (Italics mine.) public.” in view conclusively that foregoing statement shows The charged in the acts of abortion court deemed the public very nuisance essence of indictment to be the alleged. making foregoing the court statement,

After said: allege that the acts “It of producing done in abortions were defendants cases operations procurements or were where

unnecessary. to a business relates offense authorizing pro- If had a condition. we statute might curing cases, in certain of abortions necessary, this, in an in such ease indictment negative exceptions, have no such such but we to statute.” (Italics mine.) importance again stressed the Here the court allegations specific in the abortions contained as to indictment.

Commencing page Or, 535 of 54 at the bottom of further: the court said charge maintained that the house “The willfully, wrongfully purpose the intent and

with unlawfully producing It not the abortions. was charge that the inten- purpose the indictment the crime was to commit tion defendants hilling by producing under Section abortions 163.060—manslaughter Comp. [OBS B. 1748, & C. conducting they a business statute], but decency outraged public openly and was that injurious which defendant and the business morals, clearly comes within are (Italics mine.) terms.” those referred to of ac- business business tually performing alleged in unlawful abortions as indictment. foregoing

After discussion the court, we then following unequivocal, positive- find the clear, language opinion: allegations

“The of abortion Mahala Hub- [Ila Cowles] erts and other women do not state facts that constitute crime under Section Comp., B. & C. and are not intended but are to, only allegations performance of acts done purpose charged, and intent which are neces- sary separate charge- nuisances, and do not elements Waymire, offenses: State Or. 281 (97 46).” (Italics mine.) Pac. any positive? statement be clearer or Could more allegation emphatically The court stated that the re- specting upon “a the abortion Mahala Roberts is neces- sary charged, of nuisance” element the as well as the performance upon about the of abortions other women. majority positive

The meets this declaration the following law with the statement: supra, Atwood, “In cited as State v. is contrary question the decision, was whether the indictment stated sufficient to constitute facts question p a sufficiency 529. There no crime. 54 Or at was * * * proof. the The court was upon not called to decide whether failure to prove specific alleged amount to the abortion would proof though even was substan- failure there actually performed tial evidence that abortions were place described and that the defendants purpose. for that No house maintained was question presented. decision, The there- such was ’’ controlling precedent here. fore, not a quoted opinion From I have from the what Atwood it is that in that case the court above, obvious considering question us. In the exact now before case court was called determine Atwood just alleged constituted the crime in the indict- what directly allegations respect- and it said that ment, ing “necessary elements” the unlawful abortions were particular charged. pre- nuisance Is that not cisely question court? same now before this proposi-

Moreover, the decision does stand for the tion that it was essential for the state to un- alleged. lawful abortions as When the court said alleged “necessary abortions elements” of charged, saying tantamount to crime they proved. Upon proposition, must be this crime any case from involved is no different other elementary every It is that in criminal case the crime. necessary essential elements the crime proved must be or there can be no lawful conviction. requirement proof as to arises as the language result used the court. point I

Furthermore, as shall later out, decision in the Atwood ease under dis- now strictly keeping cussion is fundamental rules governing pleading proof in criminal actions. Waymire,

In 97 P there 281, 286, State Or prosecution was involved a under the nuisance statute. lengthy charges indictment rather a con- spiracy, together specific acts in furtherance injure good reputation and to name of the thereof, mayor city Portland. As one of the acts then of alleged, charged: the indictment “ * * * Padding, pursuance E. in the said E. * * * conspiracy of said did then and there, hearing outcry Way- upon the said of the said Belle Harry mire, said break shatter door * * * building office in said

Lane’s Referring to this indictment, speaking through court, Chief Justice S. Robert Bean, said: charges claimed indictment more

“It is that the alleges crime, than one because it that the defendant Radding prose- broke and shattered a door of the cuting merely witness’ but this was an act office; pursuance general purpose in committed the conspiracy furtherance constitut- thereof, ing part charged, the crime not inde- (Italics ours.) pendent one.” majority gives satisfactory explanation no language applicable is not its claim that the above the instant case. It contents itself with the statement: respect entirely “But this the case at bar is dif- at had there been no evidence all ferent, and, about Cowles, Ila there still would have been sufficient evi- charged.” (Italics mine.) dence of offense That begs question. applying a reason not As Waymire simply gives rule in ulti- case, its own upon dispute. mate conclusion in this case the matter in charge that an abor- the instant indictment upon (in performed Ila tion was Cowles the Atwood Roberts), charge Mahala was not of an case, simply part independent crime, but “constituted charged.” Upon proposition the crime this there nois matter difference whatever between the under discus- Waymire case and that sion now under dis- why cussion and that here, Atwood case Waymire support court cited the decision in quoted. statement above given Justice Robert S. Bean

Chief language. the use loose He was noted for clear his every In concise statements matters of law. implied. precisely In he what his. words case meant distinguished jurists occupied long this who the line of occupied years, the former Justice bench in Bean opinion position. That concensus foremost is the this state. When he said the of the and bar of bench part alleged specific a the constituted crime act charged, charged, part nuisance he is, charged, Being part just crime that. meant necessarily proved to sustain a conviction. it must by majority placed upon our latest Beliance is the supra. quotes It the Elliott, in v. fol decision State lowing therefrom: * “* * gravamen charge the unlawfully keeping maintaining indictment is producing illegal public place purpose grossly public abortions, act disturbed the which outraged public peace openly and health and de- injurious cency, being allega- to morals. The conspiracy, respecting abor- tions in the indictment tions, etc., merely incidents, means elements, were substantive crime was circumstances which the

committed and not substantive crime itself.” (Italics mine.) support foregoing the court statement, To supra, quoted therefrom Atwood, cited State quoted, portion I of the decision have above which respecting proposition of abortion the acts “necessary charged nuisance. elements” of the Elliott case statement of the court The above reply contention that was made defendant’s fail the crimes indictment should because manslaughter by felony, conspiracy to commit a attempt commit a and an and an crime abortion, expressly pre- punishment is for all of assault, decision is the code. The Atwood scribed support statement. one court’s referred No new law announced in the Elliott case. The gravamen charge Waymire of in both the and At- as in the cases, case, wood Elliott was the nuisance. The same true in here, case. And independent charged (the other cases, acts charge performed) separate abortions did not crimes, simply part charged but constituted “a of the crime [public nuisance]” and “are elements” supra. thereof. Atwood, State v. present opinion

It manifest that if the majority upheld upon is to be under dis- legitimately only by expressly it can be cussion, done Waymire, overruling the and Elliott cases. Atwood, Attention will now be directed to some of the au- upon by majority, cited and thorities relied being by jurisdictions. decisions courts other People v. 103 aff. NY Hoffman, 1000, 561, NYS 189 quoted 82 NE is cited and from as 1130, follows: thing. offense of abortion is one That “The maintaining premises open purpose for the consummating that crime is another and separate against peace good offense order of the state.” precisely using

That is what we have said, some- language express different ourselves, what and Elliott Atwood cases. things,

Among other the indictment in the Hoffman charged defendant as ease follows: * * “* that she received into the above house large number of indicated women who were with producing child, that she used instruments in abortions.” sup- opinion states that there was evidence to way suggests allegation.

port in no that It such unnecessary. evidence was Curtis, People 582, 136 NYS aff. 206 NY NE is also cited In that majority. case the maintenance defendants with the of a for the building purpose committing per- unlawful abortions therein. As forming part crime the indictment charged, alleged:

“* * in they and maintained the kept for the building purpose unlawful committing therein unlawful performing abortions; * * were performed such abortions therein V’ (Italics mine.)

The defendant contended that the case ab- barren of solutely evidence that act un- any any lawful abortion ever committed at this place that any pregnant women ever resorted to this place for that purpose.

The court answered this contention by out pointing facts and in evidence by circumstances which the al- legation abortions concerning be deemed might proved. discussion This the court indicates very clearly it deemed the evidence and material. The court found sufficient evidence to sustain convic- tion for the crime as alleged. cites and majority comments the case of

Dennis State, 91 Ind 291. In In my opinion, diana decision is directly to the opposed as position sumed majority under dis cussion. In that case it in was the affidavit and charged * * * * information “that at on defendants *, *, and near the houses of Noble dwelling Joseph Loehr, and Warrum Rufus divers other Scott, citizens, and * * * * * * maintained unlawfully slaughter-house * * * Loehr, the injury to- Noble Warrum Joseph of Scott, and and divers other citizens being, pass Rufus * # residing slaughter-house ing *.” and near their jury referred the trial court In its instructions to the property Noble comfort or of the said health, to “the failing entirely to mention or Rufus Scott,” Warrum Joseph “the defendants contended that Loehr. The regard allegations information, in the affidavit and slaughter-house near the resi location of the and that Scott, Warrum Loehr, dences injury of Loehr, nuisance Warrum described was description and must be matters of Scott, were proved charged; that, therefore, was error as * * * jury that as to to instruct the in the court allegations to a con the State would these entitled * * * the location if the evidence showed viction, slaughter-house near the residences two persons named, and that the nuisance the three * * * persons injurious the three men two was (Italics and information.” affidavit tioned reply mine.) the Indiana court contention, In to this said: position correct their “If counsel are descrip- allegations to are matters of referred unnecessarily, although they were made tion, then, proved they made, before the State must be (Italics mine.) to a conviction.” be entitled could naming specific of the three held that the court unnecessary allegation,

persons but mentioned was being descrip- having matter of so been proved; proved, the and unless “vari- to be it had tion, omission Loehr’s fatal.” Because ance bewill although in- the other two instructions, name judg- found, error mentioned, dividuals were remanded for a new and the ment cause reversed, trial.

537 majority quotes cites from Wharton, § Criminal Evidence 11th ed as 1911, 1090, follows: allegation “Where there is an describes, which qualifies, defines, charged, the or limits a matter material to be descriptive it is taken averment, as general proved rule obtains that it must be as though particularity description laid, even such unnecessary.” (Italics mine.) Clearly support position that statement does not majority point of the I this case. As shall later out, as to the abortion Ila Cowles not only necessary charged (State element of the crime supra), highly descriptive Atwood, but it also is engaged. the unlawful business which defendants quarrel I no with the have rules stated in Wharton on majority opin- Criminal Evidence referred to in the they ion. position In I fact, think sustain the which taking I am in this case. I However, do wish to direct attention to Iwhat deem an error in a statement made majority. discussing In Wharton on Criminal majority Evidence the states: “* * * Among other cases cited the au- money alleged thor are several where to have been unnecessarily ‘money stolen described proof failing particular, U.S.’, and, in this * * * ques- conviction was reversed. A similar tion was involved in Neilon, State v. 168, 174, Or though unnecessary 73 P the court found (Italics mine.) decide it.” my opinion, In this court did decide tending and held that in the absence of evidence “unnecessary allegation” such the defendant acquitted. should have been The court said: ‘‘ money charges The information that the it is the defendant converted his own use pay money and failed to over was lawful argned States, that, it is while it was United alleged that the state to have not alleged. proved held It been must be has fact, it charging larceny of law- that, ful the an indictment under upon money States, it is incumbent of the United money prosecution the stolen was to that indict- and character described kind of the [citing cases]. rule the Within this ment : defendant acquitted unless the evidence have been should directly by inference, or that show, to either tended the the United money money him lawful embezzled (Italics mine.) States.” point proceeded out evidence court then The money fact involved from which in the record being might money be of the United States lawful found. Bishop’s Pro- quotation from New Criminal

The opinion majority appearing is direct au- in the cedure allegation proposition thority that for the respecting abortion on indictment instant proved, a fatal will there be must be Ila Cowles allegation might though deemed be even variance, allegation unnecessary indictment in an An one. complete unnecessary that crime, but may a to state surplusage. ipso render not facto does Bishop majority replies this statement: Mr. with * * setting up nuisance consisted designated, specifically maintaining place, to- a per- necessary equipment, for the gether performmg forming actual and the of abortions amply things place. All these abortions mine.) (Italics proved.” says majority nuisance That is what grand what case, but in this consisted only part of what It is jury indictment. in its said speak, respect, authorized who is In this it said. grand jury? or the court, The nuisance that the grand jury charged, among things, described other specific part abortion Ila Cowles as frankly crime. It conceded there is evidence in might this record from which it be inferred that abor- may tions other women, names unknown, have performed by been defendants the conduct of their business. But that evidence satisfies one of the allegations nothing indictment; has whatever to do with the whether such an abortion had performed upon been Ila Cowles. majority following

The makes the statement: “There are numerous of in classes cases which prove alleged it is held that all failure that is in way the indictment not will stand in the of a con- viction.” majority

The then invites attention to indictments conspiracies for alleged pur- where overt acts are in contributing suance to indictments for thereof, delinquency prosecutions of a and to minor, for obtain- ing money property by pretenses. might or It .false negligent have added indictments for homicide. How- appli- ever, rules in the announced those cases have no prosecution cation whatever to a under our nuisance grand jury attorney statute where the or the district necessity, particular of must, define the crime involved by allegations complaint, the or indictment, information. example, negligent

For homicide is in defined this by state ORS 163.090, as follows: any person “When the death of ensues within year proximate injuries as the one result of caused by driving any negligent of motor in a vehicle * * person driving *, manner such so vehicle * * * * * guilty negligent is homicide *.” 540 gist negligent killing of of this crime is the operation vehicle. one

another in of motor When alleged by negligence or acts of are established more proximate com- canse, as the crime is evidence plete. negligent proxi- if it be the act, It takes bnt one just in mate but it is cause, crime; to constitute as damages upon negligence, civil for based actions may alleged, proof one or several acts be more sufficient. charging an act or acts

That also is cases true contributing delinquency gist a minor. delinquency a minor con- that crime is the may by tributing accomplished thereto. one Such proved accomplished many or acts. If act is act one v. Moore, sufficient. State Or result, 241 P2d 232, 239, 455. nothing People

I find the case whatever quoted by major- Haynes, (NY), from 11Wend ity, supports case. In that its conclusion principal case for determination was prosecution obtaining property in a for whether (a pretenses specific specifically crime defined false statute), all it was the state to pretenses false the indictment war- quite properly court held that rant a conviction. The proof necessary, such of one more of it was pretenses to the com- false would be sufficient establish plete The crime. court said: 1‘ every party case where a The extends statute money falsely goods by representing or has obtained not, he in a situation in which himself to be by falsely any representing had occurrance that ordinary persons happened, cau not tion to which ingredients might give the The credit. of- pretences, obtaining goods by are

fence with false (Italics mine.) intent to defraud.” ingredients in the New offense involved of the The ingredients specified the statute; the York case are in particular are not in this case offense any in- found statute, in but are found dictment. People majority quotes from a statement (NY), blush, at first would which, 3 Hill 479

Townsend, support position im- However, case. its in this seem to following mediately York of the New the statement majority opinion, quoted is to be found court the following: the entirely depart from

“But it is allowable in- have averments, and I think the court should the they jury could the the structed find before they guilty, in- must believe that defendants particular jury mentioned manner arose in a nui- not in itself the dam was As indictment. way offensive constituted sance, the became part issue, and the substance substance of ’’ mine.) always (Italics proved. e the issue must b opinion Judge court, Bronson, who wrote majority quoted making in after the statements opinion, opinion further: and in said “* * * party, here, But the act of the as erecting maintaining it- dam, was wit, way had or manner which the dam lawful, self fact, should a nuisance material become proved rule, If such be not the laid. have been kind of evidence never what can know defendant prepared on the trial. Such to meet he must be my my question; are but brethren are views of this opinion of the issue that the substance proved.” comprised members, and of three court was evidently opinion that the sub- of them were two Judge although proved, had been of the issue stance not. Bronson was

To understand the decision, that the case issues be known. Defendants were maintaining in the indictment with a dam across On- ondaga by flowing creek, which water in the stream up, up was dammned and flowed back and the chan- large nel of the stream and over the surface of tracts adjoining “by land, means whereof the mud, wood, vegetable and leaves, brush, the animal and substances brought by and other filth collected and chan- down nel of the said water and course the natural flow- ing during of the waters, there became and all were, large the time collected and aforesaid, accumulated in quantities in the channel of the water course and on the lands overflowed; and that mud, said wood, etc., * * * so there collected became and were and still very are and and nauseous, offensive the waters be- corrupted; came and are and means thereof divers noisome, unwholesome and deleterious and smells * * * did stenches arise so that the air * * corrupted still is and infected V’

Defendants moved for a directed verdict of not guilty, They requested which motion was denied. then requests, relating three The first instructions. two responsibility by parties dam defendant and jeopardy, to former were denied, but the third given. third is material to this discussion. jury requested The trial court instructed as follows: charges “Third, the indictment the nuisance to erecting continuing whereby

consist the dam, brought the mud, etc. wood, collected cmd down the channel were collected and accumulated in chan- nel on the land overflowed, and became of- prosecution fensive, etc.; and the must make out the case as stated. The defendants could not be con- jury victed unless the believed the evidence from decomposition of from the arose the nuisance brought not from channel, down matter growing vegetable decomposition matter the in pond.” about judgment because reversed of conviction was of the the authors to be not shown defendants were the urged grounds had defendants one two nuisance, re- and in their upon verdict, a motion for directed their not criticise quested did But court instructions. the quoted. in- given that From as above instruction the to the trial court stated clear that the it is struction, required out jury prosecution to “make was that prove that and to indictment, in the stated” the case as alleged. in manner arose the nuisance decided case inasmuch as the was Moreover, responsible proposition defendants that all the dis- consisted of, nuisance, for the whatever majority opinion quoted in case this cussion unnecessary opinion deci- to the in dicta Judge evidently expressed Bron- of the views sion, and only. son quotes majority in from the decision cites think “We and then states: Beal, 94 Me

State v. authority foregoing ample for our decision.” that the is support authority my opinion, at all in of no In it is majority. position The indictment taken noth- case have in the instant case and that Maine except indictments ing both common, whatever in- charge public Maine case the In the nuisance. public location nuisance the as a dictment describing public particular street, in a structure building showed The evidence in detail. the size of the building not located part described so that a portion although large thereof was. in the street, any Naturally, part encroached if structure 544 street, a nuisance existed. That is what the

Maine held. That it court did not intend its decision upset elementary pleading proof as to rules conclusively by criminal cases is demonstrated what immediately prior making it said the comments it quoted by majority. did as The Maine court said: undoubtedly person “It true, when a thing necessary to be mentioned in an indictment unnecessary particularity, even is described with description all the circumstances must be they proved; are all made essential identity, § on Evidence, 65; G-reenleaf and a vari- particulars proof proof ance is fatal, for identity may depend upon preciseness descrip- (Italics mine.) Noble, tion. State v. 476.” Me. majority relying upon portion No doubt the quote reading of its from the Maine decision as follows: “* * * does failure charged of an offense to the extent result a fatal proof. variance between and We think necessarily. by not It is laid down Mr. Wharton § in his work Evidence, on Criminal that failure prove allegations quantity magni- of number, to and entirety tude their is not a fatal variance, where proof pro (Italics supports charge.” the tanto the mine.) speaking entirely The court is of a Maine situation present different from that the case at It is bar. speaking of the the substance of crime itself—the en- building upon public croachment the street; speaking descriptive it is not matters the sub- thing. entirely stantive remarks have Its reference magnitude the extent or of the unlawful encroachment, any in a case where encroachment whatever public proof street constituted a nuisance, and alleged complete. of which the crime as was That is holding. the basis its construing case, in the Atwood indictment

In perform- simply actual that said “the had this court necessary nuisance of the a element abortions is ance of might in the charged,” been some merit have there proof requirement satis- would be as that the claim per- generally by proving had been abortions that fied specific any proof to a abortion. without formed, Referring case held. the Atwood But what alleged Mahala specifically Roberts, on abortion women, on other abortions also to plural) allegations (using the those court said using plural) (again necessary elements” “are ‘‘ charge charged, particular and do not nuisances using plural). (and again In separate offenses” by charged public nuisance as words, other specific jury, part grand abortions consisted they particu- alleged; elements lar nuisance. majority’s statment that Maine

The error by position supports its is shown reference decision Wellington, a Massachusetts case: Commonwealth Allen 299. Wellington charged case the indictment In the disfigurement public wrongful of a desecration Swanzey, public burying burying ground in particularly ground described metes and erecting maintaining pen for a shed and bounds, (public hogs nui- crime thereon. substance disfigure- sance) “the desecration by erecting burying ground, a shed ment of maintaining hogs pen thereon.” evi- part of the land trial showed that dence on the burying ground specifically a metes described as the actually description been used as a had and bounds burying ground, public also showed that but it wrongful complained acts were committed of part used. so

The defendant contended that the evidence failed to (as show that the whole the lot described metes of indictment) and bounds in the had ever been oc- used, cupied appropriated burying or ground, as a and, therefore, there awas fatal variance between the fact proved and the The trial indictment. jury court instructed the it that was sufficient to war- rant a if the conviction, evidence established that the lot of portion land described in the indictment or some public burying ground, awas and that the de- of public burying ground fendant did within such imputed acts to him. The court Massachusetts said: application general

“In the rule that it is .sufficient proved, if the substance of the issue be allegations is a there distinction between allegations matters substcmce and of matters description. [matters essential The former may substance] latter substantially proved; but the [matters description] proved must be strictly precision and with and exactness. When person thing necessary ever a to be mentioned unnecessary par an indictment is described with ticularity, description all the circumstances proved; they identity. must be for are essential to its stealing Thus, in an indictment a black horse, necessarily the animal is mentioned, but the color yet need not be stated: if stated, it is made de scriptive particular animal stolen, and a proof variance in the of the color is fatal. G-reenl. * # * §§56,65. Ev. absolutely “It was of course that the burying ground [as indictment should mention the absolutely necessary it was in the instant case for the indictment to mention the unlawful business engaged, in which defendants were that business being charged], nuisance for the offence dese- in its consisted defendant against charged it be should essential cration; but it was having But it been and bounds. by metes described out to strike described, impossible it being and so in- from the taking without averment the whole of the to the allegation essential part dictment necessary it was be charged, offence intended exactly be proved should description whole that the of the court The instructions it was set as forth. the de- but not be proved, need that the whole fendant part that a shown if it was be convicted might indictment described lot of land of the and occupied had used been as a burying ground had himto imputed and that the acts that purpose, there- lot, him that by part done been be thereto must incorrect, exceptions fore ’’ (Italics mine.) sustained. the substance crime instant case In the defendants business charged unlawful to be mentioned necessary, course, were engaged, in- therefore, It is patent, in the indictment. in- the instant acts of abortion dependent sub- directly descriptive at least dictment, being exactly must nuisance alleged, proved stance fol- as set forth, unwilling even if this court is now ele- and treat them Atwood case as low the which, such, crime as would ments of charged, to be proved. have attention now to some authorities

I to invite wish considered but which majority, not mentioned or rules as to pleading proof announce definitely litigation. in the instant involved Nuisances & Practice In 14 Ency. Pleading said: § or maintenance

“An for the erection indictment nui- describe nuisance should of public forth facts sufficient certainty, sance set prima against to make aout case the defend- facie * * * ant. constituting “The acts the nuisance should be out set with the detail and fulness usual in indict- ments. thing “And where a is not a nuisance in itself, special but so circumstances, becomes reason of special alleged. circumstances must be description, though unnecessarily “Matters of alleged, charged.” (Last proved must be italics mine.) (Hornbook Series) In Criminal Procedure Clark’s § it79, is 214, stated: allegation though may [in “No an it indictment], unnecessary, rejected can

have been be as sur- plusage, descriptive identity if it is that legally charge.” is essential to the Dejardin, 46, In v. 126 AR Commonwealth Mass 30 646, defendant in the indictment with .was printing publishing pictures and obscene of naked girls. proof printed published The showed that he and picture girls only obscene naked above the waist. court said : printed “The that the defendant and figures published pictures girls and naked is not by proof printed published pictures he met and figures girls, greater part and for the clothed. government, having pictures, described the description, bound the defendant could upon proof printed not be convicted that he substantially published pictures different from the description, though jury might pic- such find ’’ (Italics mine.) obscene. tures to be descriptive The rule that matter in an indictment, although unnecessarily alleged, proved must be al- as leged, applicable a rule fundamental in nui- but also in all criminal eases, sance other cases. I cite following application illustrate the cases which

549 1008; 42 SE State State, 602, 116 rule: Trice v. Ga 15 Me Noble, 476; v. NH State Sherburne, 99; 59 v. People, 1 Langley, v. NH Alkenbrack 529; v. State App (NY); Gray 411. 11 Tex State, Ct Denio § it is stated: In Nuisances 46 CJ proof must accord with the trial the “On charges information, or com- indictment, plaint, case, and a material the issues allegations proof ad- and the variance between (Italics mine.) support fatal.” thereof is duced logically contended that the fact of Could charge not a of the indict- abortion Ila Cowles was very ? material issue case, ment and an issue in this guilty place pleas of not Did defendants’ required fact? to defend in issue as a Were defendants part against specific charge of the nuisance as alleged? ignored specific could have Or defendants charge surplusage as and immaterial? Could it have being upon motion of im- been stricken defendants surplusage? material As the much-beloved Justice say: so often “the wont answers these Belt questions are obvious.” maintaining prosecution

In a nuisance unnecessary particu- it is to state the indictment the county other lar location of the nuisance than and state, alleged, yet particular if the location it must is be proved to avoid a fatal variance. The rule is stated in § Nuisances unnecessary, as follows: 486, 99, 20 RCL prosecution keeping in a “It is maintaining nuisance, common the in- designate particularly or information the dictment place crime more than the commission the charge county the committed within the same was prosecution had; the is but and state wherein designates particular and the where the information kept place charged main- to be location tained as nuisance, a common state, to warrant conviction, must the crime to have been com- place particularly mitted at the so described proof as

information, of the commission of the keeping maintaining crime of a common nui- place designated at a sance other than that so particularity proof in the information is com- separate independent mission of a crime other than ’’ (Italics mine.) one the information. majority opinion, As noted in the Mr. Wharton elementary states the same rule. rule is allegation “where there is describes, which defines, qualifies, charged, or limits a matter material be it descriptive proved is taken as a averment” and must be though particularity description as laid, even such unnecessary. is §

In 42 CJS 1267,Indictments and Information 250, following rule is stated: “ * * allegation However, where an de- scriptive identity of that which essential charge in to the the indictment, whether it be neces- sary allegation unnecessary particular, or more or less such rejected surplusage cannot be * * proved must be Hightower App In State, Gra 148 SE isit said: ‘‘If the indictment out sets as done in the offense particular way, proof must or there so, show will be And is a where there variance. rejected, yet pleader cannot be unnecessarily way

makes it minute of de- scription, proof satisfy description must part, as well as the main since the one is essential ’’ identity of the other. kept It must in mind that the are defendants charged by conducting the indictment in this case with performing an unlawful il- business, business of alleged place legal of it is that their business abortions; operated purpose. is for that That is maintained anyone charged. contend the nuisance Would charge specific upon Ila is as to the abortion Cowles descriptive not conducted defend- business plans operations constituted of their ants; grand jury public charged by nuisance certainly Being specific charge, a it indictment? descriptive alleged gen- than the more the nuisance charge par- eral of abortions other or women, place ticular business carried all where but on, proved. must be App

In 19 Ind State, Fulk the affidavit 356, public conducting a nuisance in a flour mill populous portion city, in a that de- erected and maintained a in- smokestack fendant height carry away the soot and smoke. sufficient although unnecessary The court held that it was to al- lege concerning the matters neverthe- smokestack, having alleged, necessary the same it less, been being for the state to it. There total failure proof allegation, as to that as there is total failure proof case as Ila abortion on Cowles, Indiana court reversed the conviction. following § In 970, 66 CJS Nuisances 166a, rules are announced: prosecution maintaining

“In a for a nuisance the prosecution prove all must the elements of the of- support fense, and aver- evidence to all introduce though information, ments of the indictment or such averments are even material, not or not sufficiency proof indictment; but the ’ beyond go (Italics mine.) need the indictment.’ § Am In 39 Jur Nuisances stated: conformity applicable crimi- “In to the rules * * * generally, pleadings indictment, nal creating maintaining al- nuisance must necessary lege all facts to the commission show charge more than one offense, and must not offense.” support

In and in the note thereto, of this statement following respecting comment is made our deci- supra: Atwood, in sion State maintaining a nui- “Where an indictment maternity keeping hospital a for abor- sance charges in connection that the de- tions therewith place specified fendants, date, in and on a such wilfully produce wrongfully commit and ‘did an and one said M. E. then M.E., abortion she the being pregnant and there a with woman child/ they that certain dates also did wil- and between fully ‘upon wrongfully produce and commit and abortions pregnant there child, women then and are names and numbers of which women grand jury charges particular unknown/ constituting of fact a abortions are statements relating manslaughter under a in of crime committing statute only allegations abortions, but are maintaining are nec- acts done in the nuisance and essary Consequently, indict- such elements thereof. charge separate offenses. State v. ment does not P 21 Ann Atwood, 195, 102 P 104 Or (Italics mine.) 516.” Cas From it the author above, is observed that language placed used construction same expressed case as has heretofore Atwood been opinion; allegations this that that as to the is, including performed, Roberts, Mahala abortions that on necessary charged. of the nuisance “are elements” necessary they proved. Being Fur- must be elements, being descriptive if as ther, considered engaged defendants were business which unlawful they must nuisance, constitute alleged, proved be all onr significant is highly

However, cases, York snpra, in the New cases as well as own abor- that unlawful allegations contained indictments of the nuisance as part actually performed tions were from the to be drawn inference charged. By necessary di- decisions, York used in the New language both court, juris- of our own holding rect positive actual per- for the proposition stand dictions element necessary abortions is formance unlawful manifest It charged. nuisance of the particular may alleged generally element or cases, generally York as it the New alleged in the instant indict- as it particularly indictments in this but state), ment in all other (and or either both generally particularly, alleged, when it is that it elementary and particularly, generally cited, has not alleged. majority must proved I to whatever find, any authority nor been able have the contrary. to court in the Atwood that of this ease holding is a nec- abortions

the actual performance unlawful of the nuisance is without essary element abortions may be performed sound reason. Lawful to the life of the necessary preserve state when in this or when, (OHS 163.060, manslaughter), pur- mother Act of the Medical Practice to the provisions suance her is to necessary preserve it 677.010-677.260), (OBS Buck, 262 P2d 495. Suppose 200 Or State health. in performing physician specialized that a reputable maintained an office solely and lawful abortions such contend that he anyone Would for that purpose. % a nuisance Certainly maintaining public conducting of the abortion per- character not! It is unlawful nuisance, makes the place formed that and decency morality, sense of shocks the public’s 554=

it because of that is that the unlawful al- abortions leged particular are elements of the nuisance charged.

The issue under discussion deals with fundamental pleading proof rules of think in criminal cases. I majority turning decision, its is its back on elementary principles. If this case were affected holding, enough, its would be bad but, course, damage being that is not the extent of the done. This holding today pleading proof Banquo’s ghost, will, like to arise haunt us in future authority criminal major- cases. Not one is cited in the ity opinion directly supports position its that it unnecessary specific in this case charge performed upon that an unlawful abortion was my opinion, upon applicable Ila In Cowles. the law pleading proof majority in criminal cases, the precedent being this case stands alone. A new estab- entirely foreign anything lished, that has been said before. dispute

It is unfortunate that the matter in arises good in a case of this character. All citizens condemn long the abortion It has racket. been foul stench in body politic. complete the nostrils of the Its eradica- by every morality tion demanded sense of and de- cency. keeping However, must be eradicated government is a rules law. Ours law, and it is primary function of the court to see that the law though application guilty is followed, even in its one may occasionally escape punishment. We cannot make change to fit law each individual case it arises. as If we soon did, we would have chaos instead of an orderly justice. administration of Bad cases make bad laws, as Burke said: “Bad are laws sort worst tyranny.” Begardless may of how feel we as to duty guilt our of defendants the ultimate case? appellate concerned with matters tribunal majority, plain. opinion In the state law permitted to abor- been should have my opinion, required to it was Cowles; tion on Ila judgment against all defendants should be do so. The trial. and the cause remanded for new reversed joins say authorizes me to that he J., Latourette, dissenting opinion. in this

Case Details

Case Name: State of Oregon v. Dewey

Court Name: Oregon Supreme Court

Date Published: Jan 18, 1956

Citation: 292 P.2d 799

Court Abbreviation: Or.