Appeal from Circuit Court, Multnomah County. Pat Dooley, Judge. No. C 72-02-0535.
Howard R. Lonergan, Portland, argued the cause and filed the brief for appellant.
John H. Clough, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Foley, Judge. Schwab, Chief Judge, and Fort, Judge.
Defendant, having waived jury trial, appeals from a conviction by the court of the offense of illegal sale of narcotics and the sentence of three years' imprisonment.
Defendant's first assignment of error is that the trial court erred in denying his motion to set aside the indictment on the ground that there was no showing that the indictment was presented to the court in the manner prescribed by ORS 132.410. That section provides that an indictment, when found and properly indorsed, shall be presented to the court by the foreman in the presence of the grand jury and filed with the clerk.
No reporter is required to be present at grand jury proceedings unless specially ordered by the court, ORS 132.090, and there is a presumption of regularity in all proceedings in a criminal case preliminary to the matters required to be shown by the transcript. State v. Reinhart, 26 Or 466, 38 P 822 (1895). Defendant, as the movant, had the burden of overcoming that presumption, and we find that he did not do so. The only support offered by defendant for his motion was an affidavit executed by defense counsel to the effect that (1) while a deputy district attorney from 1963 to 1967 he had observed that Multnomah County grand juries followed a procedure which did not comply with the statutory requirements and (2) he had observed this same improper procedure on approximately ten occasions between October of 1971 and March of 1972 (the time of the motion). The procedure referred to by counsel's affidavit was that a deputy district attorney handed the indictments to the court, and that the court thereafter handed them to the clerk of the court.
If the existence of such an unauthorized procedure had been established in this case, the question of its propriety would be squarely presented. However, we do not believe that counsel's affidavit of his observations on the other occasions overcomes the presumption
of regularity in this case. Direct evidence of the procedure followed in this case was available to the defense. For instance, the foreman of the grand jury, the judge, or the clerk of the court could have been called as witnesses at the hearing on the motion to testify as to what happened when the indictments were presented. Since such direct evidence was not presented, we do not believe that the affidavit in this case was entitled to much weight. Cf. ORS 17.250 (6), (7).
The second assignment of error is that the trial court erred in overruling defendant's demurrer to the indictment relating to its definiteness and certainty. Defendant challenges the sufficiency of the indictment on the ground that it is vague as to time and place. The indictment recited that "* * * on or about November 4, 1971 in the County of Multnomah, State of Oregon * * *" defendant feloniously sold heroin. This was sufficient. ORS 132.610; 132.620; State v. Kelsaw, 11 Or App 289, 502 P2d 278, Sup Ct review denied (1972).
The demurrer also claimed insufficiency of the indictment for failure to allege the person to whom the narcotic was sold. While the better practice would seem to be to include such in the indictment, it is not required. State v. Kraemer, 9 Or App 220, 495 P2d 1241, Sup Ct review denied (1972). In any event, the defendant was advised prior to trial that Officer Wilson was the alleged purchaser. Defendant's demurrer also challenged the indictment on the ground that it failed to negative the exemptions from criminal liability contained in the narcotics statutes. It was not ...