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State v. Fitzpatrick

Oregon Court of Appeals
Jul 16, 1997
149 Or. App. 246 (Or. Ct. App. 1997)

Summary

holding that an indictment phrased in the statutory language was sufficient to satisfy ORS 132.550

Summary of this case from State v. Kelly

Opinion

CF960211; CA A93321

Argued and submitted June 16, 1997

Reversed and remanded July 16, 1997

Appeal from the Circuit Court, Umatilla County, Thomas M. Mosgrove, Judge.

Kaye E. Sunderland, Assistant Attorney General, argued the cause for appellant. With her on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

No appearance for respondent.

Before Riggs, Presiding Judge, and Landau and Leeson, Judges.


LEESON, J.

Reversed and remanded.


Defendant was charged with one count of assault in the third degree and two counts of assault in the fourth degree. ORS 163.165; ORS 163.160. He demurred to the third-degree assault charge, and the trial court sustained the demurrer. The state appeals. ORS 138.060(1). We reverse and remand.

The first count of the indictment mirrors the language of ORS 163.165 and alleges that:

ORS 163.165 provides, in part:

"(1) A person commits the crime of assault in the third degree if the person:

"* * * * *
"(e) While being aided by another person actually present, intentionally or knowingly causes physical injury to another[.]"

"The defendant, on or about 02/17/96, in the County of Umatilla and State of Oregon, did unlawfully and knowingly, while being aided by another person actually present, cause physical injury to [the victim], by beating him with his fists[.]"

(Emphasis supplied.)

Defendant's demurrer claims that this allegation is insufficient under ORS 135.630(6), which requires that an accusatory instrument be "definite and certain." According to the demurrer, the indictment does not name the person who allegedly aided defendant in physically injuring the victim, leaving defendant "not able to determine what person [was] intended to have aided [him]."

Generally, an indictment is sufficient if it describes the offense in the words of the statute. State v. Nussbaum, 261 Or. 87, 91, 491 P.2d 1013 (1972); State v. Bockorny, 125 Or. App. 479, 483, 866 P.2d 1230 (1993), adhered to 126 Or. App. 504, 869 P.2d 349, rev den 319 Or. 150 (1994). Moreover, "the identity of persons connected with a criminal offense need not be stated in an indictment unless such identity is an essential element of the crime charged." State v. Shadley/Spencer/Rowe, 16 Or. App. 113, 121, 517 P.2d 324 (1973).

The identity of the "person actually present" who aided defendant in knowingly causing physical injury to another is not an element of the offense of third-degree assault. ORS 163.165. The indictment was phrased in the statutory language and sufficiently apprised defendant of the charges against him to enable him to make his defense. See ORS 132.550(7) (indictment shall contain a "statement of the acts constituting the offense in ordinary and concise language * * * in such manner as to enable a person of common understanding to know what is intended"). To the extent that defendant needs the identity of the person alleged to have aided him in order to adequately prepare his defense, under the circumstances of this case, that information is available through pretrial discovery. State v. Thompson, 40 Or. App. 461, 464, 595 P.2d 842 (1979).

Reversed and remanded.


Summaries of

State v. Fitzpatrick

Oregon Court of Appeals
Jul 16, 1997
149 Or. App. 246 (Or. Ct. App. 1997)

holding that an indictment phrased in the statutory language was sufficient to satisfy ORS 132.550

Summary of this case from State v. Kelly
Case details for

State v. Fitzpatrick

Case Details

Full title:STATE OF OREGON, Appellant, v. LARRY SHANE FITZPATRICK, Respondent

Court:Oregon Court of Appeals

Date published: Jul 16, 1997

Citations

149 Or. App. 246 (Or. Ct. App. 1997)
942 P.2d 819

Citing Cases

State v. Cox

State v. Fitzpatrick, 149 Or.App. 246, 248, 942 P.2d 819 (1997), is a useful illustration of those…

State v. Kelly

” “[A]s this court so many times has held, an indictment generally is sufficient if it charges an offense in…