State v. House

485 P.2d 33, 5 Or. App. 519

• Court: Court of Appeals of Oregon
• Decided: August 10, 1971
• Status: Published

Opinions

THORNTON, J.

Defendants were indicted for the murder of their infant child. The indictment states:

“The * * * defendants are accused * * * of the crime of FIRST DEGREE MURDER committed as follows:

“The said defendants on or about the 15th day of October, 1969, in the County of Multnomah, State of Oregon, and the said defendants being the mother and father of and having care, custody and control of Mark Anthony House, a minor child under the age of three years born July 4, 1967, the said defendants did unlawfully, feloniously, and with deliberate and premeditated malice Mil the said Mark Anthony House by wilfully, purposely and knowingly failing and refusing during the life of the said Mark Anthony House to secure and to provide the said Mark Anthony House with adequate sustenance, and medical and hygenic [sic] care necessary for his physical well being, and as a direct and proximate result thereof the said Mark Anthony House died, contrary to the Statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.”

Defendants filed separate but substantially identical demurrers on the grounds that “said indictment does not substantially conform to the requirements of ORS 132.520 (2), 132.530 and 132.540 (l)(f).”

After hearing argument the circuit court sustained the demurrers and entered judgment for defendants thereon. The state appeals from this judgment.

The issue on appeal is whether the above indictment described the nature of the crime charged with sufficient certainty.

Oregon Constitution, Art I, § 11, provides that an accused in a criminal prosecution shall have a right “to demand the nature and cause of the accusation against him * * The legislature has spelled out this constitutional requirement in the following sections of OBS ch 132:

“The indictment, which is the first pleading on the part of the state, shall contain:

“(2) A statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended.” OBS 132.520.

“The indictment must be direct and certain as to the party charged, the crime. charged and the particular circumstances of the crime charged when such circumstances are necessary to constitute a complete crime.” OBS 132.530.

“(1) The indictment is sufficient if it can be understood therefrom that:

((# & * * #

“(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 a degree of certainty as to enable the court to pronounce judgment, upon a conviction, according to the right of the case; provided, that the indictment shall not contain allegations that the defendant has previously been convicted of the violation of any statute which may subject him to enhanced penalties.” OBS 132.540 (l)(f).

State v. Dougherty, 4 Or 200, 203 (1871), interprets the above constitutional provision (Art I, § 11) to require:

“The attributes and elements of the accusation or crime, whenever it is possible to do so, should be set out in the indictment, and the accused is entitled to be informed of the same by a copy of the indictment, and not be compelled to wait until the State introduces testimony to develop the acts and circumstances which are necessary to the identity of the particular crime charged. The reasons for the above requirements are apparent, and need no extended argument in their support * *

It should be pointed out that there is no statute in Oregon authorizing a bill of particulars in a criminal proceeding. State v. Green, 245 Or 319, 327, 422 P2d 272 (1966); State v. Reyes, 209 Or 595, 620, 308 P2d 182 (1957). In lieu the framers of our penal code provided for a demurrer on the ground that the indictment is not sufficiently definite and certain. ORS 135.630 (2); ORS 132.540 (1) (f). There is no procedure for the taking of evidence on the hearing of such a demurrer. State v. Green, supra.

The principal case upon which the defendants rely is State v. Davis, 1 Or App 285, 462 P2d 448 (1969). In that case the mother of the deceased child was charged with first degree murder for deliberately and maliciously “ Tailing and refusing to secure and provide the said Matthew J. Davis with the eare, guidance and protection necessary for his physical, mental and emotional well-being.’ ” We there held:

“The indictment against defendant in no way descends to particulars. It does not state what omissions the state would attempt to prove as a proximate cause of the child’s death. Defendant could be held accountable for every act or omission since the birth of the child which the jury might find came within the open-ended charge. It provides defendant with little help in making her defense without speculation and guesswork and little, if any, guidance for the trial court in determining what matters were or were not embraced by the charge.”

From a reading of the indictment in the instant case it appears that the state intends to prove that the child’s death resulted from either a combination of, or one of, three different types of wrongful conduct, namely, failure to provide (1) sustenance, (2) medical care and (3) hygienic care. The terms used to describe the felonious acts, while not as indefinite as in Davis, nevertheless are so indefinite and so broad as to raise a serious doubt as to whether defendants have been afforded their constitutional right to be fully informed of the charge.

It is true that the prosecution, in framing this indictment, was confronted with a type of alleged homicide in which it is difficult to be specific in pleading, since it may involve continuing acts or conduct rather than a single homicidal act such as shooting, stabbing, beating, suffocating or poisoning. The indictment indicates that this conduct occurred at some time during the life span of the deceased child, namely, two and one-fourth years, or perhaps throughout the entire span.

Defendants in this case, as in Davis, are being required to prepare themselves to meet anything and everything covered by the three categories which they omitted to do during the child’s entire life, and which might have contributed to its death.

Indictments and informations for homicide are controlled by the same rules applicable to indictments and informations in criminal prosecutions generally, except where the inherent character of the offense charged requires a greater degree of certainty and precision. 40 CJS 1026, Homicide § 139.

We believe that the inherent character of the offense involved in this case requires that the offense be charged with greater certainty and precision. State v. Davis, supra.

First, we hold that defendants are entitled to be informed of the inclusive dates between which the state will offer proof of wrongful conduct as to each of the above three categories.

Second, while the term “medical care” is sufficiently precise and understandable, we are of the opinion that the terms “sustenance” and “hygenie [sic] care” are too broad and indefinite in scope. Are these words of “ordinary * * * language” which would “enable a person of common understanding to know what is intended” (OES 132.540) ? We think not, for the following reasons.

According to Webster’s Third New International Dictionary (1969), “sustenance” is defined as:

“1 a: [M] eans of support, maintenance, or subsistence : LIVING! * * * b(l): FOOD, EEFEESH-MENTS ° • * (2): NOUEISHMENT ° • # 2a: the act of sustaining or the state of being sustained b: a supplying or being supplied with the necessaries of life * * * 3: something that gives support, endurance, or strength.”

What is covered by the term “sustenance”? Does it mean only food, or does it include other necessaries of life? See Justice v. State, 116 Gra 605, 42 SE 1013, 1014 (1902).

With reference to the term “hygenie [sic] care,” according to Webster’s Third New International Dictionary (1969), “hygienic” is defined as “of, relating to or conducive to health or hygiene.”

Webster defines “hygiene” as:

“1: [T]he science which deals with the establishment and maintenance of health in the individual and the group * * * 2: conditions or practices conducive to health * *

19A Words and Phrases (perm ed) 577, defines “hygiene” as “a system of principles or rules designed for the promotion of health, and ‘hygienic’ means ‘pertaining to health or the science of health’,” citing Lunn v. City of Auburn, 110 Me 241, 244, 85 A 893, 894 (1913).

Thus “hygienic care” appears to include all aspects of diet, sanitation, clothing, shelter and medical care necessary to health.

What then is covered by the use of the term “hygenie [sic] care”? Does it mean poor diet? Poor sanitation? Insufficient bedding? Will the state seek to prove that the defendants starved the child or that they faded to provide necessary inoculations against childhood diseases? If, for example, the state intends to prove only that defendants intentionally allowed the infant to wallow in its own excreta, as a result of which the child became diseased and later died, then it should have used more specific terms.

①

We have examined all the cases we could find, including those cited in the briefs, which involved a charge of killing another through neglect, starvation or denial of medical treatment. We have also examined cases in jurisdictions where a bill of particulars may be allowed in a criminal case if the indictment, although substantially good, is insufficient for vagueness, indefiniteness and generality. While, as we have already observed, our code does not provide for this procedure, we believe these cases are instructive.

As to the first category of cases, from our examination it appears that in all but one instance, State v. Staples, 126 Minn 396, 148 NW 283 (1914), the charge was more specific than in the present case. In only two eases, State v. Staples, supra, and State v. Bischert, 131 Mont 152, 308 P2d 969 (1957), was the charge actually challenged for vagueness. Both cases are relied upon by the state as grounds for reversing the decision of the court below. In Staples the indictment was for manslaughter, not first degree murder, of defendant’s infant child. Defendant’s challenge was overruled by the trial court judge, following which the defendant was tried and convicted. The issue then came before the appellate court after conviction of the defendant. The appellate court held that the indictment was not void from vagueness.

In Bischert defendant was charged under an information for manslaughter of his infant child, aged five months. The Montana penal code specifically provided an abbreviated form of information for use in charging manslaughter. (This form had been previously approved by the Montana Supreme Court in a series of cases.) Notwithstanding, the prosecutor elected not to use the short form. Instead he pleaded that the defendant killed his child “ * * by failing, neglecting and refusing to provide her with the necessary food and attention to maintain her and sustain her life and by reason of sneh failure, neglect and refusal, the said Melody Bischert did then and there starve and die, * * 131 Mont at 154. On appeal after conviction defendant challenged the sufficiency of the information. (It is not clear from the court’s opinion whether the defendant made a similar challenge prior to trial.) The Montana Supreme Court, at 157, said:

“* * * The information contains more than this court has held necessary in manslaughter cases. In view of the ruling in State v. Duncan, Mont., 305 Pac. (2d) 761, [upholding the abbreviated form of charge] analysis of the information is unnecessary.”

As to the second category of cases (involving a bill of particulars), in Chaplin v. Kentucky, 274 SW2d 55 (Ky 1954), the court stated the general rule, namely, that a bill of particulars may be allowed when it appears to the trial court that the accused is entitled to notice of what charges he will be called upon to defend.

The right to require a bill of particulars depends upon whether the offense is charged with sufficient clarity to enable the defendant to prepare his defense without surprise and to plead former acquittal or conviction if later charged with the same offense. United States v. Smith, 209 F Supp 907 (DC Ill 1962). Except where an absolute right is guaranteed by statute, the granting of a bill of particulars is usually discretionary with the court. It can only be reviewed on appeal for abuse of discretion. 4 Wharton, Criminal Law and Procedure 720, § 1866 (Anderson 1957).

It is our view that the cases involving the granting or refusal of a bill of particulars are more helpful in pointing out the proper result in this case. It would appear from an examination of these cases that a bill of particulars would be granted under an indictment such as we are considering here, since the state has not set forth the ultimate facts of the alleged crime with the requisite certainty necessary to enable the defendants to prepare their defense without surprise. See Annotation, Eight of accused to bill of particulars, 5 ALR2d 444-569 (1949), 1-12 ALR2d Later Case Service 481-507 (1965). More reason exists in the present case because three separate types of omissions are alleged as having caused the death of the child. Finally, we believe that it is worth pointing out that under the practice in both Minnesota and Montana the accused is entitled to a bill of particulars if the circumstances warrant it. State v. Holmes, 65 Minn 230, 68 NW 11 (1896); State v. Poelaert, 200 Minn 30, 273 NW 641 (1937); State ex rel Wong Sun v. District Court, 112 Mont 153, 113 P2d 996 (1941). It does not appear from a reading of the opinions in Staples and Bischert if either of the defendants moved for a bill of particulars before trial, as he was entitled to do. Both opinions are silent on this point. However, if, in fact, neither defendant did so but waited until after trial and conviction to attack the indictment on this ground, this may well have been the controlling factor in the refusal of both appellate courts to upset the indictments.

We hold that the indictment is insufficient “to enable a person of common understanding to know what is intended,” OES 132.520 (2), and is not “direct and certain as to # * * the particular circumstances of the crime charged * * *,” OES 132.530.

Clearly, no prejudice to the state’s case would result from requiring that the indictment be made more definite and certain in respect to the particulars mentioned. On the other hand, if the defendants are compelled to wait until the state introduces evidence and testimony before they are advised as to the true nature of the charge against them, defendants might well be deprived of a fair trial. State v. Dougherty, supra. Preservation of a fair trial for all persons charged with a crime, whether innocent or guilty, is one of the first duties of our judicial system. Fair trial in this instance requires that we send this case back with instructions that the matter be resubmitted to the grand jury so that the indictment can be made more definite and certain. ORS 135.670; ORS 135.690.

Affirmed with instructions.

If the state does not know the period of time involved or the cause or causes of death with the requisite certainty and specificity, then our Supreme Court has held that the grand jury may so state in the indictment. State v. Schwensen, 237 Or 506, 526, 392 P2d 328 (1964).