State v. House

FOLET, J.,

specially concurring.

I concur except, together with my brother Fort, I do not agree with the majority statement that “the term ‘medical care’ is sufficiently precise and understandable.”

In addition I would like to point out: The defendants are charged with killing the child by failing to provide him, during his lifetime (2 years and 3 months) “with adequate sustenance, and medical and hygenic [sic] care necessary for his physical well being.”

The attack by way of demurrer to the loosely-drawn indictment comes at the commencement of the proceedings before the issues have been made up or by analogy to a civil action at the same point in the proceedings as a motion to make the complaint more definite and certain.

While after verdict a different rule applies, were this a civil case for wrongful death demanding only money as reparation rather than deprivation of *531liberty, as here, a defendant on motion to make more definite and certain would be entitled to be informed with more particularity what and when were his claimed omissions — not by reciting evidence, but ultimate facts.① And this would be so in a civil case even though the plaintiff also has the right to the use of discovery depositions. This is not to say that in a given case, where the state in truth does not have evidence from which to supply the ultimate facts of, for example, the specific cause of death, that a crime must go unprosecuted. As pointed out in the majority opinion, there, if the prosecution does not have any further information than alleged as to the cause of death, defendant is entitled to be so advised. State v. Sack, 210 Or 552, 300 P2d 427 (1956), appeal dismissed 353 US 962, 77 S Ct 1048, 1 L Ed 2d 912 (1957).

In a civil case the statutory pleading rule is:

“The complaint shall contain:
“(b) A plain and concise statement of the facts constituting the cause of action * * *.
“* * * * ORS 16.210 (2),

and in criminal cases:

“The indictment * * * shall contain:
(($ # $ $
“(2) A statement of the acts constituting the offense in ordinary and concise language * * ORS 132.520.