5 Or. 491 | Or. | 1875
By the Court,
The bill of exceptions in this case discloses the fact that numerous objections were made by the defendant to the proceedings at the trial in the court below, touching the admission of testimony offered by the State and the rejection of evidence offered by the defendant, and concerning instructions given by the court, as well as those asked for by the defendant, which were refused. We shall review here, however, only those objections which counsel for appellant have presented in their brief and argument in this Court, believing, from a careful examination of the, bill of exceptions, that none of the numerous other objections are well taken.
The first objection urged here by counsel for appellant is, that the indictment in this case is fatally defective, in that it does not state facts sufficient to constitute a crime. It is claimed that the State should have specified in this indictment the means by which, and the manner in which, the alleged assault was committed, naming the weapon used, if any, so that the defendant might be intelligibly informed of “the nature and cause of the accusation against him,” and be thereby enabled to prepare for his defense. In support of this position, counsel for the appellant cite State of Oregon v. Dougherty et al., decided by this Court at its December term, 1871 (4 Or. 200), and also Bishop on Criminal Procedure, § 77 and note, and 8 Sneed. 66.
In answer to this proposition, counsel for the respondent
As to the sufficiency of an indictment framed in manner and form like the one in this case, the authorities certainly are not uniform; but without reviewing the cases cited, pro and con, from the courts of other States on this subject, we desire to note briefly the decision of this Court made in State v. Dougherty et al., and in State v. Bruce, and consider the question of the sufficiency of this indictment with reference to the law, as it is construed in these cases, and with reference to the language of our Criminal Code on this subject.
We think that upon a careful examination of the two decisions of this Court above cited, they will be found to fully harmonize with each other, as well as with the provisions of our Constitution and laws on the subject of criminal practice in this State. The case of State of Oregon v. Dougherty et al., decides that a person accused'of crime in this State, has not only a statutory but a constitutional right to demand before he is placed upon his trial “the nature and cause of the accusation against him ” (Code, p. 76; § 11, Bill of Bights); also to have submitted to him by the indictment “ a statement of the acts constituting the offense, in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended.” (Criminal Code, § 69.) In State v. Dougherty et al., the indictment was held to be defective, because it failed to describe the character of the lottery which the defendants were charged with setting up, so as to enable them to know what was intended, and to be prepared for their defense when the case should be called for trial. In other words, it was held in that case that the indictment was subject to objection on the second ground of demurrer, as prescribed in chapter 2 of the Criminal Code,, to wit: “That it does not substantially conform to the requirements of chapter 8 of this Code.” But in State v. Dougherty et al., the defendants raised the question as to the sufficiency of the indictment at the proper time
The indictment in this case, to have been perfect and free from objection, should have specified the weapon or means employed in making the assault complained of; but in the absence of a demurrer such indictment is sufficient after verdict. It should be understood, because our statute is paramount authority on that subject, that three of the five grounds of demurrer, as specified in $ 123 of the Criminal Code, are waived by the failure to demur, if the objection appear on the face of the indictment. And we repeat here in substance what we said in the case of State v. Bruce, that to hold otherwise would be to do violence to a plain provision of the statute, and to impose unnecessary additional expense and labor upon the State in the prosecution of offenders, and would in many cases, by the resulting delays, afford to the guilty means of escape from merited punishment for their crimes.
The second objection urged by counsel for the appellant is to the effect that the court erred in refusing to admit the testimony of H. K. Hanna, District Attorney, called on the part of the defendant on the subject indicated by the following question: “State whether or not defendant came to you about two weeks before the affray of April 18, 1875, and made complaint against Thomas W. Johnson, for menacing and threatening him, and asked that proceedings might be
We find no error in the judgment of the court below. It is therefore affirmed.