The question is, in an indictment for burglary, must the state specify the crime it charges the defendant intended to commit when he allegedly unlawfully entered the building?
The indictment in this сase charged that the defendant, "did * * * unlawfully * * * enter a building * * * with the intent to commit a crime therein * * *.” The defendant demurred on the ground the indictment was not definite and certain as required by ORS 135.630(6). No constitutional ground was urged at any stage of the proceeding. The demurrer was overruled, the defendant pleaded not guilty, was triеd, convicted and appealed. The defendant contends the trial court erred in overruling his demurrer. The Court of Appeals affirmed.
ORS 164.215(1) provides:
"A person commits the crime of burglary in the second degree if he enters or remains unlawfully in a building with intent to commit a crime therein.” 1
ORS 132.550 provides:
"The indictment shall contain substantially the following:
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"(7) 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; * * *.”
In
State v. Smith,
«* * * 'phg 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 particulаrity to enable him to make his defense, (2) to identify the offense so as to enable the accused to avail himself of *688 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. * *
In that case we also recognized that in determining the sufficiency of indictments we should consider Art I, § 11 of the Oregon Constitution. That section provides that persons accused of crimes have the right to "demand the nature and cause of the accusation against him.”
We also observed in that case:
"In an indictment for an offense created by statute, it is usually sufficient to describe the offense in the words of the statute. * * *. Sometimes, however, а statement of the particular circumstances of the crime is necessary in order to charge the defendant with having committed specific aсts bringing him within the condemnation of the statute, and in those cases the indictment must be direct and certain as to such circumstances. * * (Citations omitted.)
For many yeаrs the Oregon practice with burglary statutes of various forms has been to specify the particular crime intended at the time of the breaking and entering.
Fоr years there was a crime, "If any person shall break and enter any dwelling house in the night-time, in which there is at the time some human being, with intent to commit a crime therein * * *.” OCLA 23-511. The intent required was the same as that required in the present statute, "intent to commit a crime.”
Also, for years there was legislation stating acceрtable forms of indictments. OCLA 26-705. The form for the crime of breaking and entering a dwelling house in the night-time in which there is a human being, after stating the other elements, stated, "* * * with intеnt *689 to commit larceny (or other crime, describing it generally) therein * * Form No. 13, Appendix to ch 26, OCLA. 2
Prior to the adoption of the Criminal Code in 1971 there was anоther crime of burglary which consisted of breaking and entering a building other than a dwelling "with intent to steal therein, or to commit any felony therein.” OCLA 23-513. Indictments for this crime also customarily specified the felony which the defendant was charged with intending to commit at the time he broke and entered.
State v. Tovrea,
We have been cited 14 jurisdictions with statutes comparable to the one here involved which have decided that the intended crime must be specified in the indictment. United States v. Thomas, 144 US App DC 44, 444 F2d 919 (1971), so holds аnd cites the decisions from the other jurisdictions. Bayless v. United States, 381 F2d 67 (9th Cir 1967), decided to the contrary; however, it so decided because of an applicable Washington statute which is not part of Oregon’s law.
The state has not pointed out any way in which it would be prejudiced by requiring it to continue to specify the crime it chargеs the defendant intended to commit, other than having placed upon it the usual burden of alleging and proving each element of the crime charged. 3
*690 The state contends its position is supported by the American Law Institute comments to the Model Penal Code proposing a burglary statute also providing, "with intent to commit a crime therein.” Model Penal Code § 221.1, pp 5960 (Tent Draft No. 11 1950):
"To specify 'any crime’ comports better with the realities of law enforcеment. The burglar is often apprehended, if at all, in the process of entering, when it may be difficult to know more than that he is up to some mischief. Recognitiоn of this is reflected in the rule that the specific criminal purpose need not be pleaded or proved with the same particularity in prosecuting burglary as in prosecuting the crime which the burglar had in mind. * *
After reading the cases cited in the footnote to support that statement, we are of the opinion that the Institute meant that the indictment for burglary need not allege all the elements of the crime intended, not that it did not have to allege the speсific crime intended.
The state argues and the Court of Appeals reasoned that the omission of an allegation of the particular crime intended did not work a hardship on the defendant because of his pretrial discovery rights. In some instances the availability of discovery can remedy a deficiency in the specificity of the indictment; for example,
State v. Shadley/Spencer/Rowe,
The intent the state charges the defendant had when he entered is important to the defendant. If the state сan prove the defendant entered illegally with *691 the intent to commit a crime, the defendant faces a maximum of five years in the penitentiary for burglary. If the state only is able to prove an illegal entry but not an intent to commit a crime, the defendant only faces a maximum of 30 days in jail for criminal trespass in thе second degree.
In light of the long practice in Oregon of specifying the intent which the defendant is charged with having at the time of the breaking and entering, the unanimous view of other jurisdictions with comparable statutes that it is necessary to specify the intent and the lack of any showing of prejudice against thе state by continuing such practice, other than imposing upon the state the usual burden of alleging and proving each element of the crime chargеd, we hold that an indictment failing to specify such intent is subject to demurrer upon the ground that it is not definite and certain.
Reversed.
Notes
ORS 164.225 provides burglary in the first degree consists of conduct constituting burglary in the second degree plus specified aggravating circumstances, such as the building being a dwelling.
The legislature repealed all forms of indictments, Oregon Laws 1951, ch 391; however, there is no indication that it did so because of dissatisfaction with any of the forms.
If the defendant is charged with an illegal entry with the intent to commit theft, and there is evidence to support that charge, the jury can convict of burglary although the defendant committed an assault аfter entry and testified he entered with the intent to commit assault, not theft.
Commonwealth v. Ronchetti,
333 Mass 78, 81-82,