State v. Nussbaum

THORNTON, J.,

dissenting.

I believe the indictments were sufficient. See State v. Rood, 234 Or 196, 202, 380 P2d 806, 808 (1963), where, after reviewing indictments in numerous prior Oregon cases which were held valid despite certain alleged omissions, the court said:

“Without further review of the authorities it will be noticed that our precedents announced in cases substantially similar to the present one do not require that the indictment name the individual who, similar to the purchaser of a lottery ticket, participates in the criminal act. It will also be *308noticed that our precedents are in harmony with the trend of authority.”

It is my view that the prevailing opinion errs by, in effect, engrafting on the anti-riot law an outmoded requirement of the common law, namely, that the state must allege and prove the names of the three or more persons with whom defendant is alleged to have engaged in the riot, or in the alternative, allege that the names of the co-rioters are unknown to the grand jury. The opinion reaches this result presumably on the authority of certain general language found in eases from Georgia, Arkansas and Maryland, which apparently follow the common law rule.

In 1864 our legislature, in order to escape from the technicalities of the common law, wisely adopted a new criminal code, together with a new system of code pleading in criminal as well as civil cases. Under this system it was to be, and still is, usually sufficient if an indictment or information follows the language of the statute on which it is based. State v. Frasier, 94 Or 90, 100, 180 P 521, 524, 184 P 848 (1919). This was the case here.

In my view, the prevailing opinion is an unfortunate step backward to the technicalities of outworn and outmoded common law pleading and procedure.

As stated in State v. Smith, 182 Or 497, 500-01, 188 P2d 998, 999 (1948), the purpose and object of an indictment is

“* * * (1) to inform the accused of the nature and character of the criminal offense with which he is charged with sufficient particularity to enable him to make his defense, (2) to identify the offense so as to enable the accused to avail himself of his conviction or acquittal thereof in the event that he *309should 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. [Citing cases.]”

The pertinent section of the Oregon Eiot Law reads:

“(1) Any use of force or violence, or threat to use force or violence, if accompanied by immediate power of execution, by three or more persons acting together, and without authority of law, is riot.
“* * * * ORS 166.040(1).

Under the above statute, the gravamen of the offense is that defendant committed the unlawful act in concert with three other persons. This is all that the state must prove in this regard. The particular identities of these three other participants is not a matter which the state should be required to specify, since their co-participation rather than their identities is the only consideration.

An examination of the indictments in all of the riot cases which have reached our Supreme Court shows that in each case the defendants were jointly indicted and of course were all named in the indictment.

Here, as in Cohen v. State, infra, the district attorney, presumably for reasons of strategy, chose to indict eight co-rioters individually in eight separate indictments involving the alleged riot of April 15, and five co-rioters individually in five separate indictments on the alleged riot of April 23. Had the district attorney indicted them jointly in only two indictments, presumably this objection would not have been raised.

Does the fact that he proceeded against them individually by separate indictments change the rule of law applicable? I think not.

*310Experienced prosecutors, in drawing indictments, have a well founded aversion to including any unnecessary averments therein, fearing the danger of a possible variance between pleading and proof at trial. Here, if any mistaken identifications occurred through error of the arresting officers in identifying those involved, or the giving of false names by the arrested persons, the state’s case might have been embarrassed thereby.

But even in a jurisdiction which follows the common law rule, the conviction would be valid so long as the proof showed participation by defendant and at least three others in a riot. Cohen v. State, 173 Md 216, 222, 195 A 532, 534 (1937).

Since the names of the co-rioters need not be proved to sustain a conviction for rioting, I think that the lower court erred in invalidating the indictments on this archaic technicality.

Lastly, I cannot agree with the reasoning of the separate concurring opinion of Schwab, C. J., that our recent holding in State v. House, 5 Or App 519, rev’d and remanded 260 Or 138, 489 P2d 381, 485 P2d 33 (1971), is controlling here.

In House the indictment for causing the death of a child failed to inform defendants of the time during the child’s entire life span when the crime was alleged to have been committed, and used obscure terms in describing the offense which did not meet the requirement of ORS 132.540 “* * * to enable a person of common understanding to know what is intended * *

This is certainly not the case here.