501 P.2d 1005 | Or. Ct. App. | 1972
Defendant was charged on January 4, 1972, in District Court of Lane County with possession of marihuana as follows:
“Information
(ORS 167.207)
“The above named Armando Reinaldo Laguardia is accused on oath by the Lane County District Attorney by this Information of the crime of
Criminal Activity in Drugs committed as follows:
“The said Armando Reinaldo La Guardia on or about the 3rd day of January, 1972, in the county aforesaid, did knowingly and unlawfully possess marihuana; a narcotic drug; contrary * * *”
An indorsement at the foot of the information designated the offense as “Class B felony.”
Thereafter, apparently before any other activity in district court, the Lane County Grand Jury on January 14, 1972, returned an indictment against defendant charging him, in identical allegations, with criminal activity in drugs:
“INDICTMENT
“The above named ARMANDO REINALDO LAGUARDIA is accused by the Lane County Grand Jury by this Indictment of the crime of CRIMINAL ACTIVITY IN DRUGS committed as follows:
“The said ARMANDO REINALDO LAGUAR-DIA on or about the 3rd day of January, 1972, in*77 the county aforesaid, did knowingly and unlawfully possess the narcotic drug marihuana; contrary # # * »
On March 14, 1972, the district attorney’s motion to dismiss the information in district court was allowed. On March 21,1972, defendant filed a motion to dismiss the indictment in circuit court on the ground that a same-crime complaint charging a misdemeanor in district court had been dismissed, pursuant to OES 134.140(2) which provides that:
“An order for the dismissal of a charge or action * * * is a bar to another prosecution for the same crime if the crime is a misdemeanor; but it is not a bar if the crime charged is a felony.”
Defendant claims the information in district court charged only a misdemeanor and therefore its dismissal was a bar to further prosecution.
The question before this court is this: Did the information filed in district court charge only a misdemeanor within the intendment of OES 134.140(2) ? We conclude that it did not. State v. Bettin/English/ Remling, 10 Or App 230, 498 P2d 382, Sup Ct review denied (1972), is not contrary. In that case we held that an indictment which charged possession of marihuana without alleging the amount thereof was subject to demurrer for lack of specificity, i.e., the defendant was entitled to be apprised whether the quantity of marihuana claimed to have been possessed was greater or less than one avoirdupois ounce. We did not hold that the indictment in that case necessarily charged a misdemeanor.
Eeversed and remanded.
State v. Mayes, 245 Or 179, 421 P2d 385 (1966), does not control here. In that case it was conceded that the crime charged