State v. Hunt

¶1Defendant was convicted of obtaining money by false pretenses. The circuit court thereafter entered an order arresting judgment and dismissing the indictment on the grounds that it did not state a crime in that it lacked specificity. The state appeals under ORS 138.060 (3).

¶2The indictment in question charges:

“… EVANS SMITH, ALBERT E. HUNT, JR. and HAROLD EUGENE GOODWIN *' … did … feloniously, with intent to defraud, falsely pretend that a proof of loss presented … to Fire Underwriters Association … - * was a valid proof of loss, by means of which false pretense the defendants did … feloniously obtain from the … insurer who, in reliance on the proof of loss, gave said defendants … [$27,000] whereas in fact, the proof of loss was false which said defendants knew …

¶3*636There follows, as part of the indictment, a copy of the proof of loss① indicating that the insured was Evans Smith dba Beseo Construction Co.; that damage to the stock was cansed by fire at a specific time and while the stock was located at a specific address; *637that the loss was $27,000; and that the insured claimed $27,000 for the loss.

¶4The defendant prior to arraignment demurred to this indictment on the sole ground that “more than one crime is charged.” This demurrer was overruled and the trial proceeded, resulting in the conviction. No other demurrer appears in the trial court file and on oral argument before this court counsel for defendant stated that the ground of demurrer on which he was relying was that the facts stated in the indictment do not constitute a crime.

¶5 The objection that the facts stated to not constitute a crime may be raised for the first time in the appellate court and is not waived by failing to demur. ORS 135.640; State v. Martin, 54 Or 403, 103 P 512 (1909). However, the objection that the indictment is indefinite and uncertain, ORS 135.630 (2),② should be taken by demurrer at arraignment or it is waived.

“It is obvious that an indictment may fail to comply with at least some of the requirements specified in ORS 135.630 (2) and yet not be demurrable on the ground stated in ORS 135.630 (4) — (failure of facts stated to constitute a crime.) If every failure to comply with all of the provisions of law *638specified in OES 135.630 (2) made an indictment demurrable under OES 135.630 (4), there would have been no occasion to provide for any demurrer except on the basis of the latter subsection.

“Under the provisions of OES 135.610-620, a demurrer must be in writing and should be filed at the time of arraignment, unless further time is allowed by the court. The reason is plain. Errors which may be curable should not be ignored until jeopardy has attached, and then be insisted upon as a bar. … #” State of Oregon v. Holland, 202 Or 656, 666-67, 277 P2d 386 (1954).

¶6See also State v. Miller, 119 Or 409, 415, 243 P 72 (1926), aff’d 273 US 657, 47 S Ct 344, 71 L Ed 825 (1927) . The only question before this court, therefore, is whether the indictment alleges facts sufficient to constitute a crime.

¶7The indictment purportedly charges the crime of obtaining money by false pretenses in violation of OES 165.205 which provides:

“(1) Any person who, by any false pretenses or any privity or false token, and with intent to defraud, obtains or attempts to obtain from any other person, any money or property * … shall be punished upon conviction ….

tf# * # * #

“(3) The presentation by any person of a bill, invoice, statement, account or claim in writing to another knowing the same to contain items of overcharge, false items or wrongful charges, with intent to obtain payment thereof, whether obtained of not, is a false pretense, and the account, bill, invoice or claim is a false token within this section without the signature thereon of the person presenting it.”

¶8The indictment, stripped of the particulars which are waived by failure to demur, alleges that defendant, by means of a claim which contained false items, (the *639proof of loss), with intent to defraud, “did … obtain” from the named insurance company $27,000.

¶9Defendant relies on State v. Mims, 235 Or 540, 385 P2d 1002 (1963), where a divided court held that an indictment, attempting to charge the crime of obtaining money by false pretenses from an insurance company, did not state a crime. In Mimsthe court said there was “no allegation that the defendant made any statement whatever to the insurance company of the amount of his loss by fire … against which he was insured.” 235 Or at 544-45. In the present case the proof of loss which was made a part of the indictment is definite and certain in this regard in stating that $27,000 worth of stock was destroyed by fire. Unlike in Mims, defendant Hunt could not admit all the facts alleged without admitting the commission of a crime.

¶10Defendant further urges that a crime is not charged because, although the allegation is that defendant falsely pretended, the proof of loss shows that Evans Smith, not defendant, was the insured and that Smith signed the proof of loss. There is no requirement under ORS 165.205 that the document containing false items be signed by or be in favor of the one charged.

¶11While the indictment in this case, as in Mims, is not a model of pleading, it does charge a crime under ORS 165.205. The order arresting judgment and dismissing the indictment is reversed and the case is remanded for sentencing on the verdict.