State v. Birt

Court of Appeals of Oregon

State v. Birt

473 P.2d 669, 3 Or. App. 265, 1970 Ore. App. LEXIS 511

CourtCourt of Appeals of Oregon

DecidedAugust 13, 1970

StatusPublished

Cited by1 cases

This text of 473 P.2d 669 (State v. Birt) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Birt, 473 P.2d 669, 3 Or. App. 265, 1970 Ore. App. LEXIS 511 (Or. Ct. App. 1970).

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Opinion

*266 LANGTRY, J.

The state appeals from judgment of dismissal following the sustaining of a demurrer to an indictment alleging: Count One, the defendant committed upon a named woman robbery by force and violence, ORS 163.290; Count Two, that as a part of the same act and transaction on the same date the defendant unlawfully and forcibly ravished the same woman, ORS 163.210; and Count Three, that as a part of the same act and transaction on the same date the defendant unlawfully and feloniously permitted oseulatory relations to be sustained with his private parts by the same woman, ORS 167.040.

The state contends that under State v. Huennekens, 245 Or 150, 420 P2d 384 (1966), the allegations of the three counts are valid against a demurrer grounded upon the reasons that more than one crime is stated, and multiple counts are improperly joined. We agree, and in this connection cite our discussion of the same question and the statutes involved in State v. Clipston, 3 Or App 313, 473 P2d 682 (1970).

Defendant contends that the counts of the indictment, alleging forcible robbery, forcible rape, and permissive sodomy, are so inconsistent as to constitute a misjoinder. ORS 167.040 provides:

“(1) Any person who commits sodomy or the crime against nature, or any act or practice of sexual perversity, either with mankind or beast, or sustains oscillatory relations with the private parts of any person, or permits such relations to be sustained with his private parts, shall be punished * * # »

A person can force another, physically and through threats, to do the acts constituting oral sodomy and as a part of the same act “permit” oseulatory relations *267 ■with his private parts. The word “permit” as used in this context does not mean that the act is necessarily permissive on the part of the victim. See Note 1, State v. Kuykendall, 3 Or App 362, 473 P2d 670, Sup Ct review denied (1970). State v. Weitzel, 157 Or 334, 69 P2d 958 (1937), holds that “force is not an element of the crime of sodomy as defined by the statute.” 157 Or at 340. Weitsel also holds that evidence of the entire transaction is admissible even though it may disclose the commission of another crime. Id. at 344.

Reversed with instructions to vacate the judgment of dismissal and reinstate the indictment.

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*266 LANGTRY, J.

The state appeals from judgment of dismissal following the sustaining of a demurrer to an indictment alleging: Count One, the defendant committed upon a named woman robbery by force and violence, ORS 163.290; Count Two, that as a part of the same act and transaction on the same date the defendant unlawfully and forcibly ravished the same woman, ORS 163.210; and Count Three, that as a part of the same act and transaction on the same date the defendant unlawfully and feloniously permitted oseulatory relations to be sustained with his private parts by the same woman, ORS 167.040.

The state contends that under State v. Huennekens, 245 Or 150, 420 P2d 384 (1966), the allegations of the three counts are valid against a demurrer grounded upon the reasons that more than one crime is stated, and multiple counts are improperly joined. We agree, and in this connection cite our discussion of the same question and the statutes involved in State v. Clipston, 3 Or App 313, 473 P2d 682 (1970).

Defendant contends that the counts of the indictment, alleging forcible robbery, forcible rape, and permissive sodomy, are so inconsistent as to constitute a misjoinder. ORS 167.040 provides:

“(1) Any person who commits sodomy or the crime against nature, or any act or practice of sexual perversity, either with mankind or beast, or sustains oscillatory relations with the private parts of any person, or permits such relations to be sustained with his private parts, shall be punished * * # »

A person can force another, physically and through threats, to do the acts constituting oral sodomy and as a part of the same act “permit” oseulatory relations *267 ■with his private parts. The word “permit” as used in this context does not mean that the act is necessarily permissive on the part of the victim. See Note 1, State v. Kuykendall, 3 Or App 362, 473 P2d 670, Sup Ct review denied (1970). State v. Weitzel, 157 Or 334, 69 P2d 958 (1937), holds that “force is not an element of the crime of sodomy as defined by the statute.” 157 Or at 340. Weitsel also holds that evidence of the entire transaction is admissible even though it may disclose the commission of another crime. Id. at 344.

Reversed with instructions to vacate the judgment of dismissal and reinstate the indictment.

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473 P.2d 669, 3 Or. App. 265, 1970 Ore. App. LEXIS 511, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-birt-orctapp-1970.

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