*1 24, 24, May September Argued reconsideration reversed 1979, petition for review аllowed denied November (288 253) January Or 1980 OREGON,
STATE OF Respondent, COHEN, JEFFREY Appellant. 12428)
(No. (78-8869), 18-306 CA P2d 892 *2 Bottini, Marianne Defender, Deputy Salem, Public argued the cause for appellant. With her on the brief Babcock, was D. Gary Defender, Public Salem. Cannon, Robert C. General, Assistant Attorney Salem, argued the cause for respondent. With him on the brief were James A. Redden, General, Attorney Barrie, and Walter L. General, Solicitor Salem. Schwab, Before Chief Judge, Tanzer, and Richard- Roberts, son and Judges.
TANZER, J.
TANZER, J. his conviction appeals Thе defendant him the indictment contends He murder. murder, but was insufficient the ele crime must An indictment 132.550(7) an in of that crime. ments contain: dictment constituting the offense of the acts
"A statement repetition, ordinary language, and concise without common manner as to enable in such intended understanding to know what charged: This on or the above-named day May, knowingly commit of and robbery, and in the course the said defendant of the said crime which
therance did cause *3 a pistol distinct murder are aggravated Felony murder elements punishments. distinct offenses with that except are the sаme the two crimes personal one additional element: murder commissiоn the homicide. in ORS is found murder felony
The definition 163.115(l)(b): or alone acting either by pеrson, a "It is committed to attempts or who commits persons, more one or first in the degree, burglary in the first arson the in rape degree, the first in kidnapping degrеe, the sodomy in any degree in or robbery degree, first and in furtherance in the course of degree and first commit, to attempting or he is therefrom, he, or аnother flight immediate the or aof the death any, if there be causes participant participants.” the than one of other
Aggravated murder is defined ORS 163.095(2)(d):
"The defendant committed the homicide course or of the furtherance robbery any degree, crime kidnapping or arson degree, any in the first specified sexual offense chapter or in immediate flight therefrom.” for to felony It is sufficient the commis defendant was allege engaged a homicide specified sion of one of felonies and that actually resulted. The indictment need not who in the killing fеlony did the because participant be with murder. may contrast, In there is no viсarious liability ag gravated murder. Only the person actually who com mitted the homicide in the furtherance or in flight from the felony has committed aggravated murdеr. An for aggravated murder, therefore, must allege that defendant personally committed the homicide. This indictment fails to do It is so. insuffi cient put defendant on notice he must answer a charge of aggravated Although suf ficient murder, felony not allege does aggravated murder. felony
Because
murder was
and the еle
alleged
beyond
crime
ments of that
were
found
necessarily
ocсurred,
doubt to have
not reverse
reasonable
we do
Rather,
entirety.
judgmеnt
judgment
remanded
the convic
reversed and
for modification of
and for
tiоn
murder to
from
new sentence
Rainw
entry
accordingly.
of a
State
(1976).
ater,
App
The indictment reads
[300] ) Oregon, Plaintiff of "State ) INDICTMENT
) - ) I 163.095 Count - ) Cohen, II Jеffrey Count ORS 163.115 Defendant(s) ) ) [*] * * * * defendant(s) by "The above-named is/are1 accused Jury Wаshington County by the Grand this indict- crime(s) I, ment of Count * * * in Count II on or about above-named dаy May Washington County, the 2nd Oregon, unlawfully knowingly did robbery, and in the course of and therance of the defendant said crime which the said did cause the V. being, human to-wit: Donаld Baune, firearm, to-wit: a pistol, II
Count an as alternative means of I, alleged in Count defendant on or above-named day May, intentionally cause the dеath of another by shooting him with a a pistol wit: « ” * * * * * I
I if we of Count agree only body loоk to the indictment, dis- ambiguity suffers from the However, indict- cussed in the majority opinion. еntirety ment favor ambiguity resolves defendant a clear and unequivocal shot the decedent death violation murder). (aggravated ORS 163.095 I affirm. would plural the indictment. forms of the were not deleted on words