*1 24, 4, May Argued reversed and October reconsideration denied remanded 15, 10, 1976, petition review allowed March November for Oregon Reports See later volume Appellant, OREGON, STATE OF Respondent. GILBERT,
JAMES W. (Nos. 75-2603, 75-2605, 75-3066, 75-3068, 5440) 5438,
CA P2d 31 *2 General, Attorney Assistant Burgess, John W him on With for Salem, appellant. cause argued General, and Johnson, Attorney were Lee the briefs General, Salem. Gillette, Solicitor W. Michael and cause argued Frye, Eugene, F William for brief respondent. filed the Thornton Schwab, Judge, Chief Before Lee, Judges.
LEE, J.
LEE, J. 138.060(1) authority
Under of ORS the state appeals from orders entered the circuit court dismissing separate indictments, five each of which charged defendant with the theft of a different firearm owned a different individual in violation of ORS 164.055.1 Motions for the dismissal of those indictments had been submitted defendant follow ing charging sixth, his trial on a him with the theft of by yet an additional firearm owned another indi guilty vidual, which had resulted a verdict of not entry judgment acquittal. and the of a upon The motions were based the contention that each of the six indictments returned the state2 charged defendant with crime,” "the same and that prosecution any further on one or more of the five outstanding, following acquittal sixth, his on the place jeopardy would him "in twice for the same [sic]” §I, offence Art 12 of the violation of both Oregon Constitution and the Fifth Amendment *3 United States Constitution. legal authority
Because it is within the of the legislature parameters to establish the of an offense as question specific fit, sees of whether a act or "course of conduct” amounts to the commission of one ultimately by or several crimes must be resolved defining reference to the statutes the substantive allegedly legisla crime or crimes involved, and to the tive intent behind their enactment.3
other than
"(1)
A
person
extortion,
commits the crime of theft in the first
he commits theft as defined in ORS
164.015;
degree
if, by
and
"(d)
subject
explosive
The
of the theft is a firearm or
ORS
164.055(l)(d).
eight
A
actually
against
total of
indictments were
returned
defend-
ant,
through
27,
being
Nos.
May
75-2601
75-2606
returned on
1975 and
20,1975.
Nos. 75-3066 and 75-3068 on June
Two
Nos.
of those indictments
75-2602 and
although
are not in issue here
the nature of their
disposition
apparent
is not
from the record.
Welch,
(1973);
Woolard,
State v.
"A commits theft with property to himself property appropriate another of or to person, or to a third he:
"(1) Takes, or withholds such appropriates, obtains thereof; property from an owner or "(2) lost, mislaid or deli- Commits theft of 164.065; in ORS provided vered mistake as
"(3) in ORS provided Commits theft extortion as 164.075; or
"(4) in ORS by deception provided Commits theft as 164.085; or
"(5) by receiving provided ORS Commits theft 164.095.” 164.015, ORS
Enacted at the same time as ORS offenses; "Consolidation of theft 164.025 —entitled provides: turn pleading proof” —in "(1) extortion, of theft Except for the crime ORS 164.015 consti- conduct denominated theft under tutes a offense.
"(2) charged that the crime If it is an element of extortion, of theft an accusation was taken of theft In all cases an accusation specify. must so other *4 the defendant committed alleges is sufficient if it for the required or value property theft of nature designating charged without commission of the crime Commentary 164.015 4Oregon to ORS Criminal Code of ed). (1975 [4] theft was in which the way or manner particular committed.
"(3) engaged in conduct Proof that the defendant is sufficient in ORS 164.015 constituting theft as defined indictment, complaint for information or any support An by extortion. charging than theft other one supported must be of theft extortion accusation by extortion.” establishing theft proof statutory these interpret We were called upon Jim/White, 13 for the first time provisions (1973), denied review 508 P2d Ct App Sup had legislature and held that their adoption interference act, "a criminal substantial single defined control of prop- unauthorized rights with or property an act which such ways by erty, by describing As so at 218. App committed [could] be interfere” defined, "substantially may a defendant without or "control rights with the of another property another, com- thereby authorization” property "theft,” of different in a number mitting the crime of or withhold- obtaining ways: by taking, appropriating, (ORS 164.015(1)), by from its owner ing property lost, been known to have control of taking (ORS a mistake mislaid or delivered under (ORS another 164.015(2)), from by extorting property out of his 164.015(3)), another by "deceiving” (ORS known to 164.015(4)), by "receiving” property or 164.015(5)). (ORS "subject of theft” be of a commission Under these statutes defendant that a by proof may "crime” be established enumerated more of these any has one or employed control interfere with substantially methods Thus, of another.5 authorization the property without (1) analysis an upon proceeded this the court to hold 5Based generally charging without also a defendant with "theft” indictment upon describing any proscribed which the nature of the conduct detail apprise "nature and the defendant of the based would be sufficient to * * *” I, § against required by 11 of the Art the accusation him cause of Oregon to the United States and the Sixth Amendment Constitution (2) Constitution, exception the case in which that with the extortion, specifically charged the state is with theft *5 appropriated taken, a or defendant found to have items of received at different times different may by for owned different individuals be convicted taking, multiple "crimes,” each commission of constituting receiving separate appropriating a or "interference with” property "unauthorized control over” or Where, however, a defendant of another. unlawfully simultaneously different takes or receives by different individuals he items of owned proscribed engaging single has, in a incident ****6Similarly, only conduct, a committed one crime.* pos simultaneously i.e., defendant who "withholds” — different individuals sesses—stolen items owned guilty interference with the of a act of unlawful constituting property rights others, but one off ense.7 hearing on defendant’s
At the time of the below fact, dismiss, did, in inform the motions to the state prepared prosecute the five court indictments involved on the
theory that each was "receiving” occurring upon separate at a based act of argued time, different at that time. Defendant here, that the state chose to continues to do so because against specifically proceed on the trial him at his first choose, example, required "theory prosecution” for to choose a- —to by proving an attempt of a theft the commission whether it will to establish deception opposed or an illegal taking appropriation an act of during trial. See also receiving prior the course of to or unlawful —either (1973). 471, Davis, 225, Sup review denied App 508 P2d Ct State v. 13 Or 6 (1975); Clark, Niehuser, 33, v. 9 App P2d 834 State State v. 21 Or 533 (1972). 530, App P2d Or 497 1210 (1973). 530, 538, Dechand, App This court 511 P2d State v. 13 Or consistently 167.207—a violates ORS held that where has also analogous proscribing "criminal "comprehensive” statute to ORS 164.015 "dangerous simultaneously activity drugs” by possessing different two — Allen, two, one, only v. drugs,” crimes. State constitutes his conduct Gill, (1976); 169, Sup 57, v. 24 Or App State P2d Ct review denied Homer, (1976); 166, 22 Or 863, Sup App review denied 547 P2d Ct Morales, (1975); 945, 21 Or 328, Sup denied App 538 P2d Ct review 1112, Sup review denied App Ct 539 P2d App 537 P2d (1975). committed that he an act of "theft had withholding” by unlawfully "possessing” the firearm indictment, described in the it is now foreclosed from prosecuting outstanding any on indictments alter- theory. Because, above, nate as we noted the "with- holding” of different different indi- items owned viduals at "theft,” the same time constitutes one dispute because there is no about the fact that defend- simultaneously ant all "withheld” the firearms adoption described in indictments, the six of defend- *6 argument ant’s would mean that the state is now altogether going barred from the forward on remain- ing accept cannot, however, indictments. We in its entirety defendant’s view.
Assuming prosecute original the that state did the exclusively theory by withholding,8 case aon of theft agree we prosecution that defendant now immune from further illegally withholding
for the crime the remaining firearms described in the five indictments. deprived option not, however, The state is of the proceeding against separate the defendant for crimes "receiving” separate those at same firearms consequence distinct times as a of that tactical deci prosecution. in erred, sion the first The court below dismissing outstanding therefore, indictments; the permitted prove, by can, the state should be to if it that receiving different stolen items at different times the defendant committed identifiable acts of "unau by property,” thorized control than over other with holding, amounting separate to violations of ORS 164.015. 8In his brief to this court defendant has indicated he was taken to that theory trial on the the that of theft crime had been committed his "possession” property, put of stolen that state into evidence at that trial indictments, all of the described all six state offered no possession, evidence as to when the various items of came his into requested gave jury "embody- and that the state and the court instructions
ing”
by possession.
specifically
of theft
The
has
denied
state
allegations.
any
not, however,
of these
The
include
record before us does
arguments
parties
either the
made
at
time
trial or
the
jury
of defendant’s
given by
the instructions
the court to the
at that
time.
point requiring
is,
com
however,
There
one final
Brown,
On June fact, did, in make 75-2601, state indictment No. pending indictments, includ motion to ing all 75-2601, consolidate 75-2604 and those numbered opposed motion was 75-2605 now in issue. That opposition, and, denied based on that *7 jeopardy” "double result, As a remains no court. there 75-2603, prosecution indictment Nos. to further on bar The motion for consolida 75-2604 and 75-2605. state’s not, 75-3066 however, did to indictment Nos. tion refer until June returned and 75-3068 which were not receiving of the firearms i.e., 1975. If the the crimes — charged of arose out those indictments in described — charged in indictment same transaction as that the prosecutor assuming was that the 75-2601, No. incorporated charges underlying the the aware of facts at the time and 75-3068 into indictment Nos. 75-3066 prosecution 75-2601, and that No. the on indictment of the same tried in the have been all indictments could 9 in specifically Supreme the Court procedure was endorsed This (1975). Boyd, P2d 795 court, further prosecution on indictment Nos. 75-3066 and 75-3068 would he Based the impermissible. upon however, of us, state the record before we cannot ascertain in charged whether the offenses indictment Nos. did actually 75-3066 and 75-3068 arise out the transaction; of same must question be resolved the court, trial the standards applying set forth in (1975), 533 P2d Boyd, 271 after the an parties have had to address opportunity themselves specifically to issue.
Reversed and remanded.
SCHWAB, J.,C. dissenting. The five indictments here in question all allege theft "on or about the 26th day March 1975.” Apparently concluding date alleged the the indict- ments is meaningless, majority the holds the state is entitled to prove of different firearms receipt on dates, different and that such would establish proof five crimes, different to exposing possi- the bility I years’ incarceration. disagree. There is an even more serious inconsistency this record, ignored the than majority, the difference between the date in the alleged indictment and the dates the state now plans prove "crimes” were committed. At the outset on the hearing motion consolidate, the prosecutor volunteered: "* * * I believe the that the evidence will show cases
relate exclusively possession property, prob- of stolen ably on by receiving theory. a theft All of custody was taken burglary into team in Lane County on the same at same [defend- date location home] ant’s under the same circumstances Throughout balance of this hearing, prosecutor consistently stated he proceeding on simultaneous possession of stolen property.1 agree majority’s holding with the possession that the simultaneous statutes, of stolen constitutes one violation not as *8 many property, many crimes as there are items of nor as crimes as there property. are owners of
[9] hearing subsequent dismiss, At the on the motion to Indict- defendant had tried on conducted after been substantially a No. the state made ment presentation were crimes different different —that the stolen the defendant received involved because evidence firearms on different dates. This additional two the the had come to state’s attention between hearings by way defendant’s the of before trial court testimony during Indictment No. the trial of own 75-2601. prosecution its is bound would hold the pronouncement of the about the nature earlier theory
"charges” against defendant, simul- i.e., a of large body possession property. of A stolen taneous law forbids one litigant shifting position the to from usually under is collected detriment. This law other’s heading estoppel; general well be it could as the heading fairness. under fundamental collected substantially position shifted Here the state has majority during litigation from, the course theory justify only trial, puts it, one a that would (see to and sentence footnote conviction supra) justifies trials, numerous convictions appar- to defendant sentences. And the detriment is proceeding having After ent. been told state testify theory, at the to its defendant elected on initial 76-2601; had defendant trial on Indictment No. position now wants told the the state instead been readily have he would not assert, it conceivable that testified. fundamentally circumstances, it
Under these seems using permit state, information to me to unfair present testimony, now derived from defendant’s substantially trials the five different case majority face.2 must holds 2Moreover, majority’s disposition least violates at I note that the compelled person that no can be spirit rule constitutional himself. incriminate *9 holding, propose, this Under I it would not be necessary question reach the of abstract whether alleged punishable defendant’s conduct is as one or more crimes.
II question If, however, reached, this I were would proved, hold conduct, that defendant’s if constitutes only My position, simply stated, one crime. is that Oregon receiving there is no such crime in as stolen property, App because Jim/White, (1973), Sup P2d Ct review denied holds that "receiving” the word could be eliminated from our any change theft statutes without in definition the the crime. generally agree majority’s methodology: with the question of whether defendant’s conduct consti crime,
tutes one
five
court,
as held
the trial
or at least
by majority,
statutory
crimes,
held
is one
generally,
construction.3 See
Annotations, 53 ALR3d
(1973);
(1971);
398
(1922).
37 ALR3d 1407
However, is to so construe these overruling supra. Jim/White, statutes without In that case this court held: "* * * legislature [T]he single has defined a criminal
act, substantial rights interference with opening reply length 3The state’s briefs discuss at whether question one-crime versus several-crimes should be resolved My "same-evidence” or the test "same-transaction” answer is neither. test. nothing interpretation defining Those doctrines have to do statutes with crimes.
[ 11 1 describing ways of property, unauthorized control 164.015(1) by which such an act can be committed. ORS is An examination of description a broad that act. 164.015(1) legisla- language of ORS indicates that talking acts that are included separate ture is about referring single It is to one act that within one offense. by the use of four words with definitions described ** 164.015(1) Thus, *. ORS overlapping are while words, clearly using effect is describes 'theft’ four Hauck, 383 to define one Cameron v. concept. See (1968). (5th 1967), F2d cert denied 389 US Cir (4) (5) 164.015(2), refer- [which "ORS includes descrip- by receiving’] merely 'theft refined ence to are within the already acts are embraced tions of 164.015(1) *. description of theft contained in ORS 164.095, by receiving, is refinement ORS another *10 used in ORS 'appropriate’ of the words and 'withhold’ 164.015(1). (4) (5) Thus, 164.015(2), add new no ORS merely theft; they defini- to the crime of are elements 164.015(1). are in ORS of terms that used tions Commis- Law Revision "The minutes of Criminal 1 that the drafters of Subcommittee No. indicate sion code felt encompassed that of within all acts theft were 164.015(1) 164.065, but that ORS the definition of ORS necessary it 164.085, to insure that and 164.095 were acts were the courts that such would be clear to included within were to be described therein intended at 218-19. App the definition of that inescapable is this conclusion analysis, Under are stolen receiving property acts of separate irrelevant. and, without majority
The at least cites Jim/White reasons, receiving of concludes that each act stating with” or "interference property separate stolen is App at 5. another. 27 Or property "control over” the from distinct something But is receipt follows; merely is over it which receipt control who person control. And fail to see how onset of interfering substantially receives stolen is with the of the owner. rights P2d 558, Boyd,
Jim/White and (1975), suggest the real Oregon’s essence of crime of theft is In a theft illegal possession. Boyd, charge "was submitted to the jury upon had committed theft solely by virtue having retained and concealed” stolen property. Or at 561. The Supreme Court stated: «* * * Once unlawful possession goods, without
more,
conduct,
recognized
is
as criminal
there is no
reason for fragmenting the criminal conduct
into as
many parts as there are
property,
different
items of
acquired.
however
If
charged
a defendant
posses-
with
drugs,
sion of
some
acquired
of which had been
at one
time,
time and the rest at
another
would seem clear
that he would be
object
prosecu-
entitled to
to multiple
tions. There would be no reason other than harassment
of the defendant
for the state to divide the condition of
possession
parts
into
prosecute separately
on each
* * *.”
Exactly same problem arises under the theft *11 statutes. Is it possible that the legislature intended the "fence” who two small stolen items acquires on different dates be liable for penalty twice the thief who takes a million dollars act? not, think and therefore dissent.