Appeal from Circuit Court, Union County. W. F. Brownton, Judge. Nos. 21963, 21955.
John H. Clough, Assistant Attorney General, Salem, argued the cause for appellant. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Michael V. Johnson, La Grande, argued the cause for respondents. With him on the brief was F. E. Glenn, Public Defender's Office, La Grande.
Langtry, Judge. Schwab, Chief Judge, and Foley, Judge.
The state appeals from orders sustaining demurrers
to two indictments. The indictments are identical and the pertinent parts are:
"* * * [T]he above named defendant is accused by the Grand Jury of the County of Union and State of Oregon, by this indictment, of the crime of Theft in the First Degree committed as follows:
"The said [defendant] on the 20th day of October, 1972, in the County of Union and State of Oregon, then and there being, did knowingly, unlawfully and feloniously commit theft of approximately Six Hundred Dollars ($600.00), the property of Larry R. Tsosie * * *."
The grounds for defendants' demurrers were: (1) The grand jury was without jurisdiction, (2) the indictments failed to specifically state the acts constituting the crime, and (3) they failed to state a crime.
"The defendant may demur to the indictment when it appears upon the face thereof that:
"(1) The grand jury by which it was found had no legal authority to inquire into the crime charged because the same is not triable within the county;
"(2) It does not substantially conform to the requirements of ORS 132.510 to 132.570, 132.590, 132.610 to 132.690, 132.710 and 132.720;*fn1
"(4) The facts stated do not constitute a crime; or
The trial court held that the indictment(s) did not inform the defendant(s) with sufficient specificity the crime with which they were charged. The first
and third grounds were rejected. (ORS 135.630(1), (4).) Thus, the sole question is whether the demurrers were properly sustained under the provisions of ORS 135.630(2), which involves a constitutional question including validity of Oregon's larceny statutes. A discussion of the background is useful and necessary because that background provides precedents that have contributed to the reasoning behind our conclusions.
The 1971 Oregon Legislature adopted a new criminal code for Oregon. Much of the effort was directed at simplifying archaic portions of the old code relating to larceny, embezzlement and related offenses. The fine distinctions made by the law in this area had resulted in complexities related to determining the correct crime with which to charge a defendant. See State v. Thompson, 240 Or 468, 473, 402 P2d 243 (1965) (concurring opinion of Denecke, J.); State v. Mims, 235 Or 540, 547, 385 P2d 1002 (1963) (dissenting opinion of O'Connell, J.).
One of the elements of larceny created by English common law was that there be a trespass in the taking. As English economy developed and criminal minds found new opportunities, problems arose because the old law of larceny was not broad enough to cover "theft" where the thief was one the owner trusted. Therefore, Parliament created statutory crimes to cover embezzlement and false pretenses instead of expanding the definition of larceny. Narrow distinctions then arose between separate crimes that often enabled criminals to escape punishment. Cf. LaFave and Scott, Criminal Law 618-622, § 84 (hornbook series 1972).
This result has brought about efforts like those
in Oregon to simplify the law through revision. Statutes often have been rewritten to include larceny, embezzlement and false pretenses (defined in the language of the old law) within a new offense called theft or larceny. Such efforts in other states to rationalize the law of theft have been subject to attack on similar grounds as those raised in this case. Despite such a legislative revision, the New York Court of Appeals held that an indictment charging in terms of common law larceny would not sustain a conviction on evidence of false pretenses. People v. Dumar, 106 NY 502, 13 NE 325 (1887). Similar results were reached in Montana and Washington. Cf. State v. Dickinson, 21 Mont 595, 55 P 539 (1898); State v. Smith, 2 Wash 2d 118, 98 P2d 647 (1939). The courts there relied heavily on Dumar.
Courts in other states have come to different results. In a Massachusetts case the defendant had been charged with larceny and the proof had shown embezzlement. The court upheld the statute which provided for such a charge:
"* * * The St. of 1899, following the recommendation of the commissioners, contains a simple form for larceny, but no separate form for embezzlement or false pretences. In § 12, under the head of 'Meaning of Words,' it is provided that 'the following words when used in an indictment shall be sufficient to convey the meaning herein attached to them'; and among others are these: 'Stealing. -- Larceny. -- The criminal taking, obtaining, or converting of personal property with intent to defraud or deprive the owner permanently of the use of it; including all forms of larceny, criminal embezzlement, and obtaining by criminal false pretences.' * * * Under this last statute the word 'steal' in an indictment becomes a term of art and includes the criminal taking or conversion in either
of the three ways above named, and hence the indictment is sustained, so far as respects the criminal nature of the taking or conversion, by proof of any kind of larceny, embezzlement, or criminal taking by means of false pretences. If it be objected that this construction makes the indictment so indefinite that the accused is not sufficiently informed of the nature of the charge which he is called upon to meet, the answer is that it is provided in the same statute (§ 39) that 'the court may, upon the arraignment of the defendant, or at any later stage of the proceedings, order the prosecution to file a statement of such particulars as may be necessary to give the defendant and the court reasonable knowledge of the nature and grounds of the' accusation, and, if requested by the accused, shall so order in all cases in which the court has final jurisdiction, where the accusation would not be otherwise fully, plainly, substantially, and formally set out * * *." (Emphasis supplied.) Commonwealth v. Kelley, 184 Mass 320, 323-24, 68 NE 346, 347 (1903).
California courts have reached a similar result. In People v. Fewkes, 214 Cal 142, 4 P2d 538 (1931), the information charged the offense as "'Grand Theft, a felony'" without stating under what theory the state was proceeding (larceny, embezzlement, etc.). The court held that the legislature had eliminated the requirement that the information state the kind of grand theft charged. People v. Fewkes, 214 Cal at 149. See also People v. Myers, 206 Cal 480, 275 P 219 (1929).
Connecticut reached a result that further extends this principle to another related crime, stating:
"* * * Under the charge of theft the defendant could be guilty if he violated the statute penalizing one who receives and conceals stolen property
In Louisiana an indictment charging "* * * 'theft of an automobile, of the value of Twelve Hundred and no/100 ($1200.00) Dollars, the property of * * *'" was challenged on the grounds it failed to allege intent. The indictment was good because the statute provided that a person may be charged with theft by the simple method of describing the property, the subject of the theft, and stating its value. State v. Pete, 206 La 1078, 20 So 2d 368, 370 (1944). The court noted that the constitutional guarantee that the defendant shall be fully apprised in the indictment of the charge against him is protected by the Louisiana statutory provision for the availability of a bill of particulars.
Cameron v. Hauck, 383 F2d 966 (5th Cir 1967), cert denied 389 U.S. 1039 (1968), was a federal habeas corpus proceeding. The defendant had been charged with theft and the proof had shown false pretenses. The court held that the statute setting out false pretenses (3 Vernon's Ann Penal Code Art 1413 (Texas 1953)) was definitional only and added no elements or defenses to the crime of theft. It said:
"In the present case we hold that under Texas law, the crimes described by 1410 and 1413 are the same and that a charge under 1410 [theft] notifies a defendant of all elements of a 1413 [false pretenses] offense. Theft is a synoptic concept: the Eighth Commandment condemns theft without explaining every possible nuance and contrivance in its accomplishment. Theft by false pretext is merely one genus of the species, and Texas has treated it so. This statutory treatment makes sense. It is not whimsical conjuration * * *." 383 F2d at 971.
The statutes questioned in the above cases dealt
with distinctions between larceny, embezzlement and false pretenses by retaining the definitions of each separate crime while consolidating them into a single offense. Illinois adopted a more radical approach by attempting to redefine the crime involved to encompass all the old separate crimes in one statutory provision. Ill Stat Ann ch 38, § 16-1 (Smith-Hurd 1970) provides:
"A person commits theft when he knowingly:
"(a) Obtains or exerts unauthorized control over property of the owner; or
"(b) Obtains by deception control over property of the owner; or
"(c) Obtains by threat control over property of the owner; or
"(d) Obtains control over stolen property knowing the property to have been stolen by another or under such circumstances as would reasonably induce him to ...