ON THE MERITS
*75Nathan Ail, Deputy District Attorney for Multnomah County, *76Jonathan Edwards argued the cause for respondents. ROSSMAN, J.This is an appeal by the state from a judgment in favor of the defendant, Thomas Gr. Walker, which the circuit court entered after it had directed a verdict in his favor. The indictment charged the defendant-respondent with the crime of negligent homicide as that offense is defined in ORS 163.090. It named as coindictee Richard L. Berry.
The state submits two assignments of error. The first contends that the circuit court erred when it ruled that the negligent homicide statute violates Article I, section 11, Constitution of Oregon, and the Fourteenth Amendment (due process) to the Federal Constitution. The second assignment of error challenges the circuit court’s ruling that the indictment does not charge the defendant with the commission of a crime.
ORS 163.090 was amended, after the return of the indictment, in this case, by Oregon Laws 1953, ch 676, § 2. The material part of ORS 163.090 follows:
“When the death of any person ensues within one year as the proximate result of injuries caused by the driving of any motor vehicle in a negligent manner, * # * the person so driving such vehicle * * # shall be guilty of negligent homicide, * *
The indictment reads:
‘ ‘ The said RICHARD L. BERRY and THOMAS O. WALKER on the 22nd day of November, A. D. 1952, in the County of Multnomah and State of Oregon, then and there being, upon Northeast 49th *77Avenue and Northeast Broadway Street, then and there being intersecting public thoroughfares within the corporate limits of the City of Portland and in the County of Multnomah and State of Oregon, then and there being, the said defendant, Richard L. Berry, having as his passenger, one Marlene A. Berry, did unlawfully, feloniously and in a negligent manner operate an automobile in a southerly direction along said Northeast 49th Avenue, when the same, came into collision with an automobile being then and there unlawfully, feloniously and in a negligent manner operated by the defendant, Thomas G-. Walker, in an easterly direction along said Northeast Broadway Street;
“That the said defendant, Richard L. Berry, was then and there operating his automobile at said time and place in a negligent manner in the following particulars, * *
At that point the indictment sets forth these specifications of its charge of negligence: (a) failure to maintain a lookout; (b) failure to keep car under control; and (c) excessive speed. Next, the indictment avers:
“That the said defendant, Thomas G-. Walker, was then and there operating his automobile at said time and place in a negligent manner, in the following particulars, * *
That charge is followed by three specifications which are duplicates of those offered against the defendant Berry. The indictment continues in this vein:
“And that the said negligent driving of the defendant Richard L. Berry and of the defendant Thomas Gr. Walker, and each of them, concurred and proximately caused the collision between their two automobiles as heretofore set forth and as a proximate result of the said concurrent negligent driving of the said defendants, Richard L. Berry, and Thomas Gr. Walker, and each of them, the said Marlene A. Berry, a human being, sustained bruises, lacerations, contusions and fractures as a proxi*78mate result of which the death of the said Marlene A. Berry ensued within one year thereafter, * #
To the indictment each def endent pleaded not guilty. Pursuant to a motion made by each defendant, and obedient to the demands of OPS 136.060, each was granted a separate trial.
After his trial had begun, but before the state had completed the presentation of its case in chief, the defendant-respondent Walker objected -to the introduction of further evidence upon the grounds that (1) the negligent homicide statute is invalid; and (2) “the indictment itself does not state the facts sufficient to constitute an offense.” The objection was sustained and the presiding judge directed the jury to return a verdict of not guilty. Based upon the directed verdict, the court entered a judgment of acquittal. Presently the state gave notice of appeal and thereupon the defendant moved to dismiss the appeal. The court ruled that the defendant’s aforementioned motion was, in effect, a demurrer to the indictment and that the court’s action thereon warranted the state’s appeal. The motion to dismiss was denied.
The foregoing narrative brings us to the assignments of error.
The first assignment of error challenges the ruling which held that the negligent homicide statute violates Article I, section 11, Constitution of Oregon, and the due process clause of the Fourteenth Amendment. State v. WojaTm, this day decided by us, sustained the negligent homicide statute against attacks upon it which were the exact counterpart of those submitted in this case. For the reasons given in that opinion we are satisfied that the statute is valid.
We come now to the second assignment of error which challenges the sufficiency of the indictment. The defendant’s position appears to be that since the state *79does not claim that any concert of action occurred between the two motorists, a joint indictment of them should not have been rendered. The subject matter of the defendant’s contention is discussed in Orfield, Criminal Procedure from Arrest to Appeal 262 and 316.
Some crimes, such as drunkenness, rape and perjury, can be committed by only one person at a given time, if no account is taken of abettors and accomplices. But the crime charged to the defendant is one which more than a single person may commit at a given time. In fact, it is likely that the collision of two or more cars, each driven negligently, is often a cause of death.
Although the indictment under scrutiny names two defendants, it charges only one crime. State v. Blackley, 191 Wash 23, 70 P2d 799, and State v. Coffman, 171 Or 166, 136 P2d 687.
OBS 135.630 says:
“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;
“ (3) More than one crime is charged in the indictment ;
“ (4) The facts stated do not constitute a crime; or
“ (5) The indictment contains any matter which, if true, would constitute a legal justification or excuse of the crime charged or other legal bar to the action.”
*80In view of the fact that the sections of our laws which are designated in subdivision (2) of ORS 135.630 are concerned principally with the phraseology or form of the indictment, we do not believe that the defendant, in support of his demurrer, depends upon any of those sections. None of them warrants a belief that misjoinder of parties-defendant is a ground for demurrer.
It will be noticed that the indictment avers that the defendant Walker operated his ear negligently, that it specifies the particular acts of negligence which are attributed to him and that it affirms that the negligence of the defendant Walker and that of his coindictee Berry “concurred and proximately caused the collision between their two automobiles * * *
as a proximate result of which the death of the said Marlene A. Berry ensued within one year thereafter. ’ ’ According to Shearman and Redfield on Negligence, Rev Ed, § 39:
“There may be more than one proximate cause of an accident, if each of the causes asserted can be seen to have been an efficient one, without which the injury resulting would not have been sustained. If the negligent acts of two or more persons concur in contributing to an accident, the injured person may hold them jointly and severally liable.
“Where concurrence in causes is charged, the test is, simply, could the accident have happened without their cooperation? ‘Guilty or responsible concurrence in causing an injury involves the idea of two or more active agencies co-operating to produce it; either of which must be an efficient cause, without the operation of which the accident would not have happened. ... In every such case, the question is what was the proximate cause of the occurrence and, if concurrence in negligence is claimed, were the acts or omissions of the parties so closely related and co-operative as to make either a probable and an efficient cause? Could it be said *81of each cause that without its operation the accident would not have happened?’
“The mere fact that some other cause operated with the negligence of the defendant to produce the injury complained of does not relieve the defendant from liability. If the damage is caused by the concurring force of the defendant’s negligence and some other cause for which he is not responsible, whether such other cause be of human origin or act of G-od, defendant is nevertheless responsible if his negligence is one of the proximate causes of the damage.”
The foregoing principle is employed in this state: Aune v. Oregon Trunk Railway, 151 Or 622, 51 P2d 663; and Dunn v. First National Bank, 149 Or 97, 39 P2d 944.
ORS 132.540(1) says:
“The indictment is sufficient if it be understood therefrom that:
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“(f) The act or omission charged as the crime is clearly and distinctly set forth in ordinary and concise language, without repetition, in such a manner as to enable a person of common understanding to know what is intended and with such a degree of certainty as to enable the court to pronounce judgment, upon a conviction, according to the right of the case.”
If an indictment charged two or more persons with a crime which only one person can commit at a given time, a demurrer to the indictment would present the problem of determining, if possible, which of the two or more was accused; but since the crime under scrutiny may be committed by two or more persons, and since the indictment charges this defendant with (1) negligence and (2) a death as the proximate result of his negligence, we are satisfied that the indictment charges a crime. By reverting to the provisions of ORS 135.630, it will be noticed that it does not state that misjoinder *82of parties is a basis of demurrer. Section 185 of tbe Code of Criminal Procedure, written by the American Law institute, says:
Nathcm Ail, Deputy District Attorney for Multnomah County, Jonathan Edwards argued the cause for respondents.“No indictment or information shall be invalid for any one or more of the following defects merely: (a) That there is a misjoinder of the parties defendant.”
Since more than one can upon a given occasion commit the crime of negligent homicide, the fact that more than one is named does not indicate any infirmity in the indictment. We are of the opinion that the demurrer should not have been sustained. Error was committed when the order was entered.
The judgment of the circuit court is reversed.
ROSSMAN, J.This is an appeal by the State of Oregon from a judgment in favor of the defendant, Richard L. Berry, *83which the circuit court entered after it had directed a verdict in his favor. The indictment charged the defendant with the crime of negligent homicide, as that offense is defined in ORS 163.090, and named as coindictee Thomas Gr. Walker. The indictment against the two men is copied in State v. Walker, this day-decided by us.
The procedure employed in the circuit court in this case parallels that which was employed in State v. Walker, supra. The same assignments of error are submitted in this case as in the other. The defendant-respondent Berry and his co-indictee Walker joined, upon appeal, in the same brief. In short, the issues in the two cases are the counterparts of each other.
In State v. Walker, supra, we held that the circuit court erroneously directed a verdict for the defendant and that it further erred when, based upon the directed verdict, it rendered judgment in his favor. For the reasons stated in that opinion, we believe that the circuit court erred when it directed a verdict in favor of defendant-respondent Berry and entered judgment for him.
The judgment of the circuit court is reversed.