Appeal from Circuit Court, Malheur County. Jeff D. Dorroh, Judge. No. 1922-C.
Thomas H. Denney, 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.
Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for respondent.
Langtry, Judge. Schwab, Chief Judge, and Foley, Judge.
The state appeals from dismissal of an indictment charging first degree theft after the sustaining of defendant's demurrer thereto. ORS 164.055 (1)(a) provides:
"(1) A person commits the crime of theft in the first degree if, by other than extortion, he commits theft as defined in ORS 164.015; and
"(a) The total value of the property in a single or aggregate transaction is $200 or more * * *." (Emphasis supplied.)
The demurrer was based on the ground the indictment states more than one crime. ORS 135.630 (3).
"The said KENNETH ROY BARNES on or
about the 17th day of December, 1972 and the 18th day of December, 1972, in the county aforesaid, did unlawfully, with intent to defraud, by creating a false impression of value in the mind of another, to-wit, Gregory Schultz, Henry Quast, and Marcia Davis, obtain property, to-wit, clothing and currency of the United States of America, of another, to-wit, Alexander's Men's Store, and Keith O'Brien, Inc., West Park Plaza, Ontario, Oregon, in an aggragate [sic] transaction of a total value in excess of $200.00, by giving a bank check dated December 18, 1972 to the said Alexander's Men's Store in the sum of $80.00, signed by the said defendant, and, by giving two bank checks to the said Keith O'Brien, Inc., both checks in the sum of $80.00, one bank check being dated December 17, 1972, and the other bank check being dated December 18, 1972 * * *."
The state contends the indictment states the single crime of first degree theft. If it does state that crime, the fact that it also states the three separate lesser included crimes of second degree theft would not be a basis for sustaining the demurrer. State v. Branton, 49 Or 86, 87 P 535 (1906); State v. Savage, 36 Or 191, 60 P 610, 61 P 1128 (1900); State v. McCauley, 8 Or App 571, 575, 494 P2d 438, Sup Ct review denied (1972).
The key question is whether the acts alleged in the indictment fall within the meaning of "a single or aggregate transaction" under ORS 164.055 (1)(a).
The language in question was added as an amendment by the Senate Criminal Law and Procedure Committee. The committee had heard testimony that "professional" bad check artists usually wrote checks for less than the felony amount but that many professionals would often write checks aggregating
around $1,000 in a short time. Senate Criminal Law and Procedure Committee Minutes, March 3, 1971, March 5, 1971.
Testimony before the Senate committee indicated that the word "aggregate" was derived from New York case law.
People v. Cox, 286 NY 137, 36 NE2d 84, 136 ALR 943 (1941), was a prosecution for grand larceny. The defendant, a subway worker, was accused of stealing tokens from turnstiles, taking a small amount each day. Over a period of months the sum taken aggregated to over $1,000. The court stated:
"* * * Here there was a continuing larceny by a thief operating under a single purpose to carry out a general fraudulent plan. We have first the formulation of a plan for systemized thievery, then the adoption of the plan by persons able to make it effective, and lastly its subsequent realization, together with the taking of the necessary steps to preserve a continuing operation unmolested * * *." 286 NY at 144.
Aggregation was thus approved and this rule has been followed in similar cases where defendant was accused of taking property from one owner by the same means, from the same place, at different times. Commonwealth v. England, 350 Mass 83, 213 NE2d 222 (1966); People v. Rossi, 5 NY2d 396, 185 NYS2d 5, 157 NE2d 859 (1959); People v. Daghita, 276 App Div 20, 92 NYS2d 799 (1949), affirmed as modified 301 NY 223, 93 NE2d 649 (1950). However, in a case where defendant was convicted on nine counts of forgery involving nine different victims, a conviction for grand larceny in the tenth count was disallowed because the proof on trial failed to establish any taking
or series of takings from a single owner of a sum large enough to constitute grand larceny. People v. Thiel, 26 App ...