State v. GreenState v. Green
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The defendant has appealed from a conviction of the crime of receiving and concealing stolen property. His only assignment of error relates to an alleged fatal defect in the indictment. The description of the property in the indictment is “certain hand tools, a more particular description of Avhich property is to the grand jury unknown,” folloAved by the name of the OAvner, Robert Williams.
There was evidence that in the early morning of October 1, 1965, a quantity of garage tools was stolen from a gasoline service station owned by Robert Williams and that shortly aftenvards the defendant was seen in possession of the stolen property under circumstances Avhich indicated that he kneAv it was stolen. The property was found by State Police Officer James Johnson in an automobile driven by the defendant, who stopped the car on a signal from the officer, got out and fled on foot. Johnson made an inventory of the property on the spot. Various tools claimed by the state to be the property referred to in the indictment were identified by Johnson and their owner on the trial. They comprised the folloAving items as described in the record: A box of tools consisting of socket wrenches, etc., a hydrometer for testing anti-freeze, an
“These are my tools in here. This belongs to a brake bleeder that I have at my station right now, gaskets for the caps on it, and the rest of this, this is springs off of old brakes on my’ ’5.7 Chevrolet and just odds and ends that I’ve gathered up for years, just tools and stuff.”
When these items were offered in evidence counsel for defendant objected to their admission on the ground of the insufficiency of the description of them in the indictment, and the falsity of the allegation that a more particular description was unknown to the grand jury. The only assignment of error in the defendant’s brief is to the court’s overruling of this objection.
Article I, section 11, of the Oregon Constitution provides that in “all criminal prosecutions, the accused shall have the right * * * to demand the nature and cause of the accusation against him, and to have a copy thereof * * The statutes regarding indictments include the following provisions:
ORS 132.520 : “The indictment, which is the first pleading on the part of the state, shall contain: *
“(2) 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.”
ORS 132.530 : “The indictment must be direct and certain as to the party charged, the crime charged and the particular circumstances of the crime charged when such circumstances are necessary to constitute a complete crime.”
OES 132.540: “(1) The indictment is sufficient if it can be understood therefrom that:
“(f) The act or omission charged as the crime is clearly and distinctly set forth in ordinary and concise language, without repetition, in such a manner as to enable a person of common understanding to know what is intended and with such a degree of certainty as to enable the court to pronounce judgment, upon a conviction, according to the right of the ease; * *
Failure to conform substantially to the foregoing requirements is made a ground of demurrer by OES 135.630.
We stated in State v. Smith, 182 Or 497, 500-501, 188 P2d 998:
“The objects of an indictment are (1) to inform the accused of the nature and character of the criminal offense with which he is charged with sufficient particularity to enable him to make his defense, (2) to identify the offense so as to enable the accused to avail himself of his conviction or acquittal thereof in the event that he should be prosecuted further for the same cause, and (3) to inform the court of the facts charged so that it may determine whether or not they are sufficient to support a conviction. 27 Am. Jur., Indictments and Informations, section 2; People v. Farson, 244 N. Y. 413, 155 N. E. 724.”
For the accomplishment of these objects in indictments for receiving stolen property “the property must be described with certainty and accuracy”: 45 Am Jur 398, Eeceiving Stolen Property § 15.
A tool is thus defined in Webster’s New International Dictionary (2d ed):
“An instrument of manual operation, as a hammer, saw, plane, file, or the like, used to facilitatemechanical operations, as distinguished from an appliance moved and regulated by machinery; the instrument of a handicraftsman or laborer at his work; an implement; as, the tools of a joiner, smith, shoemaker, etc.”
The modifying word “hand” in the indictment can scarcely be regarded as a specification of the kind of tools in view of the meaning of the word tool itself. It is an extremely broad indefinite term embracing a large variety of instruments used in the shop, in construction work, on the farm, and in the home. In one case a ladder was held to be a hand tool: Sheridan v. Gorham Manufacturing Company, 28 RI 256, 259, 66 A 576, 13 LRA NS 687.
In common with a number of other courts, we have held that no more accurate or definite description of the property is required in an indictment for receiving stolen property than in an indictment for larceny:
State v. Hanna,
35 Or 195, 197, 57 P 629. See Annotation, 99 ALE2d 813, 823. An indictment for larceny is sufficiently certain if the thing stolen be designated by the generic name of the class to which it belongs:
Nordlinger v. United States,
24 App DC 406, 410, 70 LRA 227 (per Shepard, C.J.); Note LRA 1915B 71, 74 et seq.; 32 Am Jur 1020, Larceny § 107. It is in harmony with this rule that our statute relating to the larceny of animals provides that “the indictment is sufficiently certain in that respect if it describes the animal by the common name of its class”:
Numerous decisions upon the question of the sufficiency of the description of the property in indictments for receiving stolen property are collated in the annotation just cited. We think it unnecessary in this opinion to further review particular cases. It is enough to say that under the indictment here the State was at liberty to prove that the stolen property was anything from a can opener to a crowbar. We hold the description insufficient “to enable a person of common understanding to know what is intended”:
As District Judge Neterer said of an insufficient
“The law presumes the defendant innocent. To hold that this description advises him of the nature of the charge would presume his guilt and knowledge of the kind and character of the currency charged”: United States v. Johnston, 292 Fed 491, 496 (WD Wash).
The State contends that, even so, the indictment is saved by the words: “a more particular description of which property is to the grand jury unknown.” Where matters or things necessary to be alleged in an indictment are unknown to the grand jury it is proper to allege they are unknown, but such an averment is admissible only on the ground of necessity: State v. Stowe, 132 Mo 199, 208, 33 SW 799; Naftzger v. United States, 200 Fed 494, 501 (8th Cir); State v. McDonald, 12 SCL (1 M’Cord) 532, 10 Am Dec 691, 692.
6. And, by what we consider t.o be the weight of authority, if, on the trial, the proof shows either that the matter or thing was known to the grand jury or could reasonably have been ascertained by that body, the defendant is entitled to an acquittal: State v. Stowe, supra; Cheek v. The State, 38 Ala 227; Blodget v. The State, 3 Ind 403; Reed v. The State, 16 Ark 499, 502; 2 Bishop’s New Criminal Procedure, 445-447, §§ 549, 550; 4 Wharton’s Criminal Law and Procedure, 560-561, § 1763. ①
That the grand jury, with the exercise of a minimum of diligence by the district attorney, could have described the tools with more particularity, is evident.
Ordinarily, the question is raised by motion for a directed verdict of acquittal or a motion in arrest of judgment. See, for example,
United States v. Riley,
74 Fed 210 (supra);
State v. Stowe,
supra. While that would have been the more appropriate procedure, the defendant’s objection to the admission in evidence of the tools served the same purpose. It brought the inadequacy of the indictment to the attention of the court at the first possible moment. A demurrer, as authorized by
The court erred in overruling the objection. The judgment is reversed and the cause is remanded to the circuit court Avith directions to resubmit the case to the grand jury. United States v. Riley, supra, 74 Fed at 212.
Notes
It is held by some courts that the rule applies only where it appears that the grand jury did not know the fact as to which it disclaims knowledge, United States v. Riley, 74 Fed 210, 212 (D Ky); Commonwealth v. Thornton, 80 Mass (14 Gray) 41, 42.