*1 Argued September and submitted Appeals judgment decision of Court of 24, 1992 circuit court affirmed December OREGON,
STATE OF Respondent Review, LARRY FLOYD WIMBER,
Petitioner on Review. (CC S38863) C90-01-30494; A66481; CA SC
Unis, filed GRABER, J.
This case involves the interpretation and application of statutes relating demurrers to criminal indictments. On January defendant was in a twelve-count indictment with three counts of sodomy the first degree, (counts ORS 163.4051 1,2, 3), three counts of in the rape (counts first ORS degree, 163.3752 6), and six counts (1987)3 of sexual abuse in the first degree, ORS 163.425 (counts 12). 7 through to the According indictment, all the crimes occurred between January 25, 1984, and November 27, 1989. provides: ORS 163.405 “(1) person engages who in deviate sexual intercourse with another engage or causes another to in deviate sexual intercourse commits the sodomy degree crime of in the first if:
“(a) subjected compulsion by actor; The victim is to forcible “(b) years age; The victim is under 12 “(c) years age sister, The victim is under 16 and is the actor’s brother or blood, daughter of whole or half daughter son or of the actor or the son or spouse; of the actor’s “(d) *3 incapable by defect, The victim is of consent reason of mental mental incapacitation physical helplessness. or
“(2) Sodomy degree felony.” in the first is a AClass provides: ORS 163.375 “(1) person A person who has sexual intercourse with another commits the rape degree crime of in the first if:
“(a) subjected compulsion by person; The victim is to forcible “(b) years age; The victim is under of “(c) years age person’s sibling, The victim is under 16 and is the blood, person’s person’s child; spouse’s
whole half or child or the or “(d) defect, incapable The victim is of consent reason mental mental incapacitation physical helplessness. or
“(2) degree felony.” Rape A in the first is a Class (1987) provided: ORS 163.425 “(1) person degree commits the crime of sexual abuse the first when person: that
“(a) contact; Subjects person another to sexual “(A) years age; The victim is less than 12 or “(B) actor; subjected compulsion by The victim is to forcible “(b) intercourse, Subjects deviate sexual inter- another to sexual 163.412, or, vagina, except provided penetration anus or in ORS course object body, penis part and the victim does not not a of the actor’s thereto. consent
“(2) felony.” degree is a Class C Sexual abuse the first trial,
At the defendant demurred to the beginning indictment. ORS 135.630 provides part: accusatory
“The defendant demur to the instrument appears upon when it the face thereof: * * * *
“(4) offense; stated do not That the facts constitute [or]
“(5) accusatory That the instrument contains matter which, true, legaljustification if would constitute a or excuse legal actionf.]” of the offense or other bar to the all The demurrer was on defendant’s contention that based conduct outside taking place Defendant that statute of limitations. argued rather than six the statute of limitations was three years, 135.640,5 defendant contended that a on ORS years.4 Relying did not consti- on the that facts stated ground demurrer 135.630(4), be raised at even crime, “anytime, tute a ORS can on appeal.”
The the demurrer responded state the failure of an indict- alleging because a demurrer untimely, the statute of ment offenses committed within charge the ground limitations is classified as a demurrer on properly 135.630(5). barred, ORS Under legally that the must be filed at 135.610(1),6 ORS a demurrer that ground or at some other “allowed” time.7 state the arraignment years. three of limitations for criminal offenses was Before statute (1987). six-year provide statute ORS 131.125 was amended 1989 to ORS 131.125 victim, abuse, sodomy, rape, and similar offenses “if the limitations for sexual crime, § years age.” Or ch 1. was under 18 Laws the time of the However, 1991. Or Laws ch was not made retroactive until statute §2. provides: 135.640 ORS upon objections appear the face of the mentioned in ORS 135.630 “When the demurrer, instrument, except they only
accusatory be taken can offense, may objection be taken at stated do not constitute an that the facts *4 n trial, judgment.” plea guilty in of not and arrest under the 6 135.610(1) provides: ORS arraignment or at at time of the “The demurrer shall be entered either purpose.” allowed to the defendant for that
such other time as be 7 135.610, that, pointed under ORS prosecutor out to the trial court The arraignment be such other time as made the time of or at demurrer must be responded: Defendant allowed.
107 tried, be with instruc- asked that all counts of offenses guilty any to find defendant not tions to period. outside the limitation occurring Instead, trial the trial court amended began, before 10,11, the dates alleged the indictment so that (sexual abuse) (January within the limitation period 12 fell 1989). also 25, 1987, November through (sexual abuse), 7,8, in counts 9 alleged amended the dates (Janu- the limitation period outside they entirely so that fell 1987).8 The court January through ary correct- legal it convinced yet that was explained but that statute of limitations argument, ness of defendant’s reconsider the matter: it intended to time when might persuade me at later you “It be that matter, [the brief the when you have had more time to research, I has, my do I had time to prosecutor] and have legal position is correct. might your conclude case, I handle the and want do, “If I I want to be able to the case. verdict has come under able handle is to submit counts way “The I can see to do that only dates, 9 through and 1 under 11, and 12 under one set set.[9] you’re gets through If he convictions 1 other correct, would be set aside.”10
those stated, honor, ground is that I contra when the the one “Your the rule is Appeals argued that. I the Court of constitute a crime. I believe facts wouldn’t time, ground any appeal, and it you even on can raise that one has so stated that states so the statute. (<>fe * * * * — “Well, my timing appropriate respectfully I I insist believe any stage says ground you put in a can demurrer at the statute on this because added.) (Emphasis proceeding.” (sodomy) through or in in counts The court did not amend the dates through (rape). counts 4 stating that the trial court was correct need not decide whether the We only procedure in the here was the one available circumstances. followed appeal, argued error to admit also it reversible On 25,1987, January where occurring the victim evidence of sexual contact with occurring charged only He relies on OEC after that date. he could be crimes 404(3). 403, and ruled, explaining pretrial statute of its resolution when The trial court if put even the problem, prosecutor “can in the same evidence” that the limitations relationship, through 12, go to the “because would limited to counts were *5 108
At the conclusion case, the state’s defendant moved for “a continuation of the demurrer that was filed.” The replied: court “That’s been argued. It’s preserved. It’s denied.” found jury defendant on 1 guilty count and on 11
counts 4 through but not guilty counts 2 and 3. After the jury verdicts, returned its defendant renewed his demur rer. The court sustained the demurrer as to 1 count and through ordered that the verdicts of guilty thereon vacated, be and dismissed those counts. The court then imposed sentence on counts 10 through and entered judgment.
Defendant appealed, assigning error to the trial court’s amendment of the time period alleged counts 10 through 12 of the indictment and to the trial court’s denial of his demurrer to those counts. The Court of Appeals affirmed Wimber, State v. without opinion. 820 P2d App intent, prosecutor argued and conduct.” The had also that the evidence would be relevant to show motive and absence of mistake. When the trial court asked defense response, only counsel for a counsel stated that the demurrer should be sustained ‘ ’ ‘appropriate remedy.’ and that the court’s resolution was not an Defendant did not (OEC argue (OEC 401), that unduly prejudicial the evidence would be irrelevant would be (OEC 404(3)). 403), prove only or would defendant’s character trial, At the victim testified to sexual contact with defendant that occurred January as well as to contact after that date. Defendant made no 404(3). objection 401,403, under OEC or record, evidentiary arguments On this that defendant now advances were preserved for review. instructions and verdict forms were consistent with the amended example, jury: indictment. For the trial court instructed the “Now, 10,11, charges Counts are of sexual abuse that are January 25th, 27th,
have occurred between 1987 and November 1989. Here the allegations 9, only period factual are the same as in Counts the time different. words, proof “In other there has to be that the criminal act was committed in County, Oregon; knowingly subjected Multnomah [the defendant contact; younger years victim] age [the victim] to sexual and that than 12 at the time of the sexual contact. Counts, prove “But for these the State has to that the criminal act was 25,1987, January 27,1989. committed on or between and November you you room, your jury “In will the verdict form that have with the dates put between which the criminal act must have occurred for each Count is parenthetically following you.” keep straight each Count to for challenge Defendant did not those instructions the verdict form. (1991). whether defen- We allowed review consider his preserved objec- whether he timely,
dant’s demurrer was indictment, and amendment of the tion to the trial court’s the indictment and erred in amending whether the the demurrer.12 denying demur- the issue whether defendant’s begin
We contended trial and on timely. appeal, rer was At because it asserted that timely, the demurrer was did not constitute offense facts stated 135.630(4); time. ORS could, therefore, raised 135.640. *6 of misconceives ORS application
Defendant
135.630(4).
an
An
fails to state facts constituting
indictment
of the essential elements of
allege
offense when
fails to
each
Holland,
stated in State v.
656,
Or
202
the offense. This court
669,
(1954),
“[t]he on the facts stated do challenge ground withstand a 132.550(7)]. crime, not is forth in It [ORS constitute a set must contain:
“
constituting
in
‘A statement of
acts
the offense
[sic],
repitition
concise
ordinary
language,
and
without
in such manner
to enable a
of common
”
to know
is
understanding
intended[.]’
what
(1988)
Wagner,
See State v.
115, 171-72,
Or
criminal offense with which accused is charged, with suffi- cient to enable particularity defend; accused to where statute describes generic offense in terms, statement of particular circumstances be necessary).
Time is not an essential element of the offenses charged in the indictment at issue here. See 163.405 ORS (setting out elements of sodomy offense of degree); the first (same ORS 163.375 (1987) (same for rape the first degree); ORS 163.425 (text
for sexual abuse in the first degree) ante). *7 dates in outside the of alleged the were statute 132.550(6) provides: ORS substantially following:
“The contain the indictment shall íí* * * * * “(6) was statement in each count the offense therein date, on, about, period designated during designated a a of committed or on or time.” provides: ORS 135.717 precise which stated in “The time at the offense was committed need not be instrument, any accusatory may alleged but to have at the it be been committed may finding be time before the thereof and within time which an action the therefor, except is a commenced where the time material element offense.” 15Furthermore, constituting alleged to have the conduct the offense is where time, place period need not of each taken over a state the date conduct, between which is but state inclusive dates the conduct instance House, 138, 145-46, v.Darlene occurred. State House & James alleged to have (1971). P2d 381 alleged a claim the facts therein failed limitations is not offense. to constitute an a contends the conduct
Instead, when demurrer place outside took ground proper period limitation, is stated in ORS 135.630(5): accusatory mat- instrument contains “That * * * legal to the which, true, would constitute a bar ter if ground invoked, be is the demurrer must action.” Where that entered arraignment as at or “at such other time the time purpose.” ORS to the defendant for that be allowed 135.630(4) 135.610(1). Defendant’s reliance ORS any “at time” for his claim that he could demur ORS 135.640 misplaced. argues, court however, also that the trial Defendant him to at some “other in fact “allowed” enter demurrer arraignment, permitted ORS than at the as time” 135.610(1). During arraignment, defendant’s his court- appointed trial, “As counsel, who not his counsel at said: proceed as further named, we’ll waive to each indictment reading rights, request jury trial, a not and advice of a enter guilty plea reserving rights against all each indictment and added.) (Emphasis arraignment request please.” dates object proposed Later, “reservation.” court did not to the permitted to file a demurrer at the trial court beginning and to “renew” his demurrer at the conclu of trial sion trial.16 in detail what conduct has not considered
This court
“allow[ed]”
a
to show that
a trial
is sufficient
court
135.610(1).
time.” ORS
at
“other
defendant to demur
some
(1969),
Tucker,
597, 602,
“The ‘such other time’ ORS words filing of demurrer permit discretion in the court This will disturb arraignment. times than at other in a case except exercise of that discretion the trial court’s omitted). (citation Id. at clear abuse.” trial, [a demurrer] “I think can At the court stated: conclusion time,” “pending,” that “on and stated described the demurrer continued ‘ *8 at be or refiled the conclusion trial” ‘indicated that it could renewed the eve of he had trial.”
Here, arraignment did not when object defendant all rights against “reserved] each indictment.” Although the statements of the trial court respecting ambivalent,17 demurrer were indisputably the court allowed trial, defendant to demur at the beginning and it indisputa- allowed bly defendant to “renew” the demurrer at the end of circumstances, trial. In the we find that the court allowed to demur at time other than at the arraignment and that the court did not abuse its discretion thereby. Accordingly, the demurrer was timely.18
We next turn to the issue of the trial court’s amend ment of counts and its denial of defendant’s demurrer as to those counts. argues The state that defendant did not his claim preserve record, of error. After reviewing we conclude defendant did preserve error; that the claimed we therefore consider whether court erred amending the dates of the crimes by modifying trial, ruling When after the court said: timely filed, impossible “[B]ecausethe demurrer was not I it indicated that was up proceeded
to it I take on the eve oftrial. to trial and indicated it could be renewed or refiled the conclusion of trial. taking up granting through “And I’m now [1 it it as those counts 9]. ‘ my perfectly judgment ‘But I want to it clear make the defendant has right complain mixing no about for these cases trial because it was his responsibility properly going that this matter wasn’t considered before to trial. just imaginative lawyer arguing “And I can see an somewhere down the line they that because evidence received on first these counts when were demurrable, properly remaining that the convictions on the other three counts should be retried. just wrong. just improper practices. “And that’s It rewards And I can’t use strong enough language practice engaged can’t have that kind of in in we our trial courts. might just possible position considering “While take the of not all, fundamentally fair, demurrers at I don’t think that is but I feel it would be entirely participants retry unfair to all of the in the case to all of these counts because of the tardiness of the demurrer.” practice raising approving We do not wish to he understood as Montez, demurrers at trial. As this court stated in State v. 789 P2d (1990): objection proper “The time for defendant’s to the indictment was before trial.
pre-trial given timely demurrer would have both the court and the state necessary opportunity to review the indictment and to make corrections trial.” demurrer defendant’s 10,11, denying and 12 and *9 to those counts. Con- 5, Oregon of the (Amended), section
Article VII stitution, part: provides
“ (4) (5) (3) of this subsections provided as Except the court with in a circuit section, charged shall be person a felony only as a any punishable crime commission of aby grand jury. indictment
“(4) on an charge person a attorney may The district aas punishable of a crime filed in circuit court information the circuit judge the before felony person appears if the knowingly waives indictment. court and “(5) on an charge person a attorney may The district if, preliminary after a filed in circuit court information held to the has been magistrate, person a hearing before a crime cause that showing probable a upon answer that committed and a has been felony punishable knowingly waives it, person or if the committed has hearing. preliminary “(6) substantially in form shall be An information attorney indictment. The district by law for an provided whenever, by or information indictment an amended
file
to be
court,
is held
or information
an indictment
ruling of
added.)
(Emphasis
in form."
defective
(1915) (Oregon
We in counts stated the time period shortening trial court’s the offenses indictment, so 12 of the 11, and years Moyer, supra, was decided almost State v. applicable phrases in the (Amended), in 1974. The adoption VII section of Article part: VII, provided in identical, nearly Article section however. constitution were any any with the commission circuit court person shall be “No by any laws of this punishable or made defined or misdemeanor crime however, jury; provided, by grand state, except upon indictment found has, an indictment whenever attorney file an amended
district form[.]” court, be defective by ruling been held to therein fell wholly within the statute of limita- tions, altered the substance of the indictment. In State this court held that an Moyer, supra, for the crime arson, a material element of which is that a person willfully another, burns the property must state the name of the owner of burned and that an property amendment adding the name was one of substance. The court described matters of form as charge merely
“matters which are not essential to the
matters,
clerical
such as where
defendant cannot be
prejudice by
misled to his
Consistent as follows: analysis proceeds our
(1) of essential nature amendment alter the Did the to him defendant, availability alter against the indictment In element, or crime? evidence, or add theory, of defenses “no.” case, answer is this that, essential jurisdictions time is not an have held where other Courts of alleged particular date of the offense, commission of amendment element of the Annot, Court toAmend Power form, not substance. See matter of offense is a of to Amend cases); Annot,
Indictment,
Power Court
(collecting
at 1531-34
7 ALR
1974)
(3d
Goldstein,
(same).
Cir
Indictment,
502 F2d 526
U.S. v.
(2) Did the amendment defendant’s prejudice right to notice of the him and to charges against protection against jeopardy? Again, double the answer is “no.”
(3) Was the itself definite sufficiently amendment and certain? It was.
Because the amendment allegations, deleted we one ask additional question.
(4) Did the in the indictment remaining allegations state the essential elements of the did. offenses? They Smith, State v.
In
182 Or
500-01,
“(1)
to inform the accused of the nature and
character
the criminal offense with which he
charged
with sufficient
(2)
particularity
defense,
to enable him to make his
to iden-
tify the
so
offense
as to enable the accused to avail himself of
acquittal
his conviction or
thereof
the event that he should
(3)
prosecuted
cause,
further for the same
to inform
the court of the
facts
so that
determine
they
whether or not
support
are sufficient to
a conviction.”
Gortmaker,
See also State v.
505, 510-16,
The rule under the Constitution of the United States
States,
is similar. See Russell v. United
749, 770, 82
369 US
S
(1962) (“settled
L Ed
240
1038, 8
Ct
2d
rule”
federal courts
that,
10,11,
argues
charging
grand
Defendant also
and
counts
the
25,1987.
might
only
January
have had mind
acts that occurred before
Because
charged
January
those counts
the
occurred between
and
crimes
27, 1989,
argument
language
November
is inconsistent with the
of the
defendant’s
disregard
free to
indictment. Neither defendant nor this court is
look behind or
(1964) (court
Guse,
479, 481,
language.
presumes
is that
except
indictment
not be amended
resubmis
to sion
unless the
is
a matter of
jury,
change
“merely
form”);
States,
78, US
Ct
Berger United
55 S
(1935) (amendment
L Ed
as to form is allowed so long
as a defendant’s
are not affected and the defendant
is
rights
also
adequately
charges).
the
See
U.S. v.
apprised
Denny,
1947)
(7th
668, 669
165 F2d
fact
(“[e]very
Cir
which must be
substance,
to
act
make the
of is a matter of
proved
complained
* * *
(1948).
formal”),
and
all
cert den
<<$ sfc * [*] jfc
‘‘(c) time prior The crime was committed at some lawby time limited finding of indictment and within the of an action therefor.” for commencement that the counts were insufficient not contend Defendant does denying not err in The trial court did other respect. 12. to amended counts demurrer as the judg- Court of Appeals The decision court are affirmed. ment of the circuit J., UNIS, dissenting. court that a trial holds today majority which the dates between changing an indictment by
amend committed, so that to have been were alleged crimes limitations. statute fall within charges court are the trial such amendments holds that The court amend- substance, permissible are but not amendments 315 Or at indictment. as to defects ments form 115. *12 (Amended),
I cannot in that VII join holding. Article 5(3), section Constitution Oregon provides, part, that, not here, relevant “a shall be exceptions in a circuit court with the commission of any crime punishable as a on indictment felony only by grand a jury” added.) 5(6) (Amended), Article VII (Emphasis section pro- vides, district part, attorney may “[t]he file an * * * whenever, court, amended indictment of the by ruling ** * an indictment is held to be defective in form.”1 In my view, 10, the amendments made trial by the court to counts 11, and 12 of the indictment were constitutionally prohibited amendments on matters In of substance. approving amendments, majority allows a court to usurp role of the constitutionally guaranteed jury, denies defendant a basic of the protection guaranty intervention of the I to secure. grand jury designed would, therefore, reverse the circuit court’s judgment 12, conviction on counts and I 10,11, and would reverse the Court of Appeals’ decision of con- affirming judgment viction on those counts. (Amended), 5,
Article VII section of the Con- Oregon stitution, makes the an express language, bringing indictment the exclusive of the province grand jury. The constitutional guaranty provides an indictment may be amended except by resubmission to the unless grand jury, is change merely matter of form.
In
v.
(1915),2
State
76 Or
“[T]he amendment of the indictment is authorized only state, the Constitution itself in this provides which that it merely. be amended as to matter of form our By Constitution the defendant is entitled to be upon tried oath, indictment grand jury found who act under amendment of the indictment in matters of substance is unauthorized.” (Amended), Oregon For the full text of Article VII section Constitu
tion,
supra,
see
See also State (1962) (“The time to amend the facts in an substantial the grand jury”). is while Thus, nor the neither trial court constitu- prosecutor an indictment on a matter of substance. amend tionally prohibition against The constitutional amendment *13 on a matter of is to serve designed of an indictment substance (1) the of the to grand jury two to protect right purposes: and brought a should be particular charge determine whether (2) the a defendant charge presented against to ensure that jury. on facts found the grand was based court, after observing In v. this Moyer, supra, State which only provision Constitution contains the “[o]ur indictment], only an but [of an amendment authorizes form[,]” as to stated: well-recognized distinction between seems to be
“[T]here go matters of form and matters that purely that are matters indictment, namely, matters of the to the substance formal clerical merely the and charge are not essential to which his errors, cannot be misled to where the such as defendant amendment, which only be the cases would the prejudice by is But where there Constitution. under our permissible are the indictment prevents which or misstatement an omission committed, been an offense has showing on its face that from offense, the test the amendment charge particular the or to available to the is whether the same is after defendant defense the same evidence.” upon the amendment added). (emphasis at 399 of misnomers corrections form include Matters Pro- 2 Criminal Israel, LaFave and errors. typographical however,] not[, need “An amendment 465, § 19.2. cedure with substance.” to deal in order charged the offense change substan- automatically is An amendment 463, § 19.2. at Id. * ** to be proved that must facts ‘essential if it “alters tive ” v. Brown Id. (quoting aof crime.’ act complained the make (1979)). 1133 105, 400 A2d Md State, 285 four satisfy case must in a criminal An indictment defendant the furnishing (1) function, the notice objectives: to properly defendant the to enable so as notice sufficient P2d 497, 500, 188 Smith, defense, State his prepare the identifying (2) function, jeopardy double (1948); crime so as to provide protection against prosecution further (3) id. review crime, based on same judicial 501; function, informing court of the facts so may determine whether the prosecution’s case is based on a (4) id.; offense, valid legally interpretation of the jurisdictional function, requiring is the entitled to product grand and that the jury be tried only that is on based for offense found facts grand jury him, which indicted see States, Russell v. United (1962) US S Ct L Ed 2d (stating principle federal courts under the Fifth Amendment).
The Fifth to the Amendment United States Consti- tution3 protections in provides federal courts similar to those provided Oregon state courts under VII, Article section 5(6), of the States, Russell v. United In Oregon Constitution. supra, Supreme Court the United States said that allow a defendant “to be convicted basis facts not found by, perhaps presented to, even which indicted him” is to the defendant of basic “deprive which the protection guaranty the intervention *14 designed to secure.” Id. In Russell, grand was jury the defendant’s for refusing convictions questions to answer when summoned before a congressional committee were the reversed because indictments were defective to failing the identify under subject inquiry. Court declared: court, “To prosecutor, allow the or subsequent the to make a guess grand as to what jury was in the minds of the at the they time returned the indictment deprive would the defen- a dant of basic protection guaranty which the of the interven- a grand jury tion of designed was to secure.” US at 770. “This underlying Court, said the principle,” by “is reflected the settled rule in the an federal courts that provides: The Fifth Amendment to the United States Constitution capital, “No be to for a shall held answer or otherwise infamous presentment crime, Jury, except unless on a or indictment a Grand in cases of forces, Militia, arising in the land naval or in or the when in actual service in time public danger; any person subject of War nor be to or shall for the same offence be limb; put jeopardy compelled twice of life or case to nor shall be criminal against himself, life, deprived liberty, property, be a witness nor be of or without law; use, process property private public due nor shall be taken for without added.)
just compensation.” (Emphasis not be by amended resubmission to the except grand jury, is merely unless the a matter of form.” change Id. “ province change ‘If it within the a to lies of court the of an to charging part suit its own notions of what been, it ought grand to have or what the probably would made if suggested have changes, it their attention had been called to great importance
the which the common law to by grand jury, attaches an indictment a as a to prerequisite * * * crime, away [defendant’s] for be frittered destroyed. until its value is almost other doctrine Any rights citizen, place would the of the which were intended to protected by provision, mercy the constitutional at the for, prosecuting attorney; control of the court or it be once if changes held that can be made the consent or order the the indictment as the body presented the court the upon the can becalled to answer grand jury, [defendant] changed, as thus the restriction which to the indictment court, in regard to power Constitution places upon indictment, longer reality no prerequisite ” States, US at 770-71 supra, exists.’ Russell United 781, 30 LEd 1, 10, 13, Bain, 121 7 S Ex parte US (quoting Ct (1887)) added). (emphasis Bain, charged the supra, In Ex parte ‘ false ‘with intent made a statement having Currency agent of the and the Comptroller deceive 121 US affairs of said association.” to examine the appointed did no an amendment held that 4. The Court Supreme at “Comptroller to the strike reference more than subse- the defendant’s was impermissible, Currency” indictment, therefore, had on the amended conviction quent reference view that the rejected the The Court to be reversed. no had “surplusage” merely was Comptroller to the case. The Court view jury’s on the bearing member at least one well have been that there may reasoned was made report “who was satisfied grand jury convinced that but was Comptroller, deceive it could Accordingly, Id. 10. else.” anybody made to deceive out, [the stricken those words that, “with *15 be said found which was is the indictment] amended Id.4 jmy.” the grand any amend- in Bain would opinion have barred broadly, Miller’s “Read Justice authority law of common His discussion ‘body of the indictment.’
ment
In this case, there is no contention that the amend-
ment to the indictment made
trial
by court corrected a
misnomer or a typographical
Rather,
error.
the amendment
in this case
changed
dates between which the crimes
10, 11,
charged
counts
and 12 were alleged to have been
committed.
amendment,
the majority recognizes, per-
mitted the
to fall
“wholly
charges
within
the applicable
added).
statute of limitations.”
According to the indictment, the crimes charged 10, 11, and 12 occurred between 25, 1984, January November 1989. After the trial court’s amendment, the crimes in those charged counts occurred between January 25,1987, and 27,1989. November There well been have at least one member of the grand jury, whose concurrence in necessary, who was satisfied that offenses occurred exclusively outside the applicable statute of i.e., between limitations, 25,1984, January before Janu .5 27, 1987 At ary argument, the state acknowledged there is no to know whether the act that way formed the basis for each crime in counts charged 11, and fell outside the statute limitations. At argu ment, the state that the acknowledged could have grand jury found that the offenses those counts of the indict ment were committed before January and thus permit included cases that refused to amendments to correct a misnomer or even amendments offered with the consent of the defendant. Modern federal cases prohibition against have refused to read the amendment as so absolute. cited, however, change Bain itself is still as an illustration that a substantive form, description of the elements of crime cannot be viewed as a matter of though suggestion change preparedness even is no will there that the affect the Israel, 465, § of the defendant.” LaFave & 2 Criminal Procedure 19.2. (Amended), 5(2), Oregon provides Article VII section Constitution “ ** *, grand jury [a] shall consist of seven members five of whom must concur to find (requiring grand jurors indictment.” See also ORS 132.360 an at least five concur indictment).
outside the statute of limitations. the Nonetheless, majority concludes that the is amended indictment the product grand jurors and that defendant was only tried for the offenses that were based facts found the by grand jurors him. that indicted
As states, defendant and the state acknowl- correctly “the could as grand jury just easily have concluded that edges, there was cause crimes in probable to believe the counts 10-12 the occurred January [of indictment] between * * * January 25,1987, and as after the latter such,” asserts, “the only authority date[].” “As defendant which the trial court had to allow demurrer [defendant’s] and leave for to prosecutor [to 12] resubmit the case to the I grand jury.” agree. crime was committed within the particular
That a is a matter substance is statute of limitations of 132.370, which provides: reflected in ORS “(1) facts, whether the grand jury When the is doubt it, shown the evidence constitute crime law by as before punishable by has to be reason or whether the same ceased of conviction, acquittal lapse or a former or make time of court, mentioning of the facts to the without presentment individuals, for instructions of and ask court the names arising concerning the law thereon.
“(2) to and made A cannot found presentment (1) section, and, of this provided as subsection except court give such the court shall presented, so found and when of the case concerning the law grand jury instructions to necessary. thinks proper as it “ (3) by the foreman is to the court made presentment being a mere formal But grand jury. of presence obtaining the advice purpose facts for the statement thereon, not be filed it is to arising to the law the court as jury.” sitting beyond the preserved court added.) (Emphasis that defen- conclude rationally How can this of limitations statute when the affected were not rights dant’s the amend- to defendant was available defense that amendment? him after longer was no available ment a certain grand jury aby is an accusation An indictment the laws crime, contrary a certain has committed on which the the date changes state. An amendment this cease to be punish- that it will not occurred, so crime charged (i.e., barred statute of time lapse reason of able substance, The amend- form. limitations), a matter of 10,11, in this case to counts the trial court made by ments aof have deprived well of limitations. defense of statute 10,11, to counts the amendments
In sanctioning allows the case, the majority in this 12 of the indictment in the minds of the grand to what was court to speculate indictment, thereby returned they at the time *17 the constitu- defendant of a basic protection depriving grand jury intervention tional guaranty to secure. designed other than that for an offense “A prosecution * * * as no different in mind be viewed had grand jury ” * * *. LaFave an indictment without
than prosecution well the state case, 19.2. In this 451, § at Israel, supra, than that a different crime guilty have defendant proven jury. “[If returned laid in the from that a different crime guilty state proves] in which it in the same indictment, position in the it is laid ” crime at all. him of no guilty if it had proven find itself would Russell, 323.6 supra, 231 Or at State v. holding reasons, majority’s
For these court’s the trial [by were not affected rights “[d]efendant’s 116, wrong. The amendment amendment],” 12 of the 10, 11, and the trial court made I of substance. amendments were unauthorized dissent. respectfully Russell, (1962), the substitution 372 P2d In State v. subject larceny held to constitute arelated offense was property
different
of substance.
amendment
an unauthorized
statutes
set out
notes
ORS
See also
132.550(6)13 and ORS 135.71714 (establishing time-related
indictment).
for
requirements
Therefore,
required to state
precise
alleged
dates
which the
offenses
State Milbradt,
631-32,
occurred. See
v.