State v. Andrews

¶1 Defendant was charged with manslaughter,. ORS 163.125, by the following indictment:

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“The said defendant on or about the 9th day of January, 1973, in the County of Jefferson, State of Oregon, did unlawfully and recklessly, without justification or excuse, cause the death of Yera Gilbert by driving an automobile operated by him into an automobile operated by the said Yera Gilbert, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.

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¶2 The trial court sustained defendant’s demurrer on the grounds that the indictment did not comply with the specificity requirements now stated in ORS 132.550 (7). ① The state appeals. We reverse.

¶3*146 Following the language of the manslaughter statute, the indictment alleges defendant “recklessly … cause [d] the death of” another. This is sufficient to state a crime. The statutory requirement of “a statement of the acts constituting the offense,” OKS 132.550 (7), is satisfied by the allegation of defendant’s act of recklessly “… driving an automobile operated by him into an automobile operated by the … victim. See, State v. Darlene House & James House, 260 Or 138, 489 P2d 381 (1971).

¶4 We anticipate defendant will learn much more about what the state intends to prove during the course of pretrial discovery pursuant to the new criminal discovery statutes. Oregon Laws 1973, ch 836, §§ 213-220; State v. Shadley/Spencer/Rowe, 16 Or App 113, 517 P2d 324 (1973). If the defendant is surprised by the state’s evidence at trial, he should be granted a continuance to prepare his defense. The availability of pretrial discovery and, if necessary, a continuance during the trial fully protect a defendant’s right to notice of what he must defend against, and counsel against requiring particulars in an indictment which still, under the New Oregon Criminal Procedure Code, cannot be amended to conform to the proof.

¶5 Reversed and remanded.