State v. Haji

                                       384

Argued and submitted May 7, 2019, decision of Court of Appeals and judgment
                   of circuit court affirmed May 7, 2020


                   STATE OF OREGON,
                   Respondent on Review,
                              v.
                    HANAD ALI HAJI,
                    Petitioner on Review.
          (CC 16CR02527) (CA A162905) (SC S066254)
                                   

    Defendant was charged with seven offenses after twice entering the victim’s
apartment on the same day and committing various crimes. After determining that the indictment could be challenged by demurrer because the statutory
basis for joining those offenses was not expressly alleged, the state obtained
leave from the circuit court to amend the indictment by adding allegations specifying the statutory basis for joinder, without adding factual allegations about
the crimes. Defendant was convicted of some of the charges, and the Court of
Appeals affirmed. Held: (1) ORS 132.560 does not require a grand jury to allege
the statutory basis for joinder of multiple charges in an indictment; (2) Article VII
(Amended), section 5(6), of the Oregon Constitution permits a district attorney to
amend an indictment that is defective in form; a defect “in form” is a matter that
is not essential to show that a crime has been committed; and (3) the additional
allegations were “in form,” and so the circuit court did not err in permitting the
district attorney to amend the indictment.
    The decision of the Court of Appeals and the judgment of the circuit court
are affirmed.



    On review from the Court of Appeals.*
   Ernest G. Lannet, Chief Defender, Office of Public Defense
Services, Salem, argued the cause and filed the briefs for
petitioner on review.
   Timothy A. Sylwester, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
______________
   * On appeal from Multnomah County Circuit Court, Thomas Michael Ryan,
Judge (judgment), Bronson D. James, Judge (amendment), 

, 

 (2018).
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   Before Walters, Chief Justice, and Balmer, Nakamoto,
Flynn, Duncan, and Nelson, Justices, and Landau, Senior
Justice pro tempore.…
    NAKAMOTO, J.
   The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
  Duncan, J., dissented and filed an opinion in which
Walters, C. J., joined.




______________
   … Garrett, J., did not participate in the consideration or decision of this case.
386                                            State v. Haji

        NAKAMOTO, J.
        After a grand jury issued an indictment charging
defendant with multiple offenses, the district attorney
determined that the indictment could be challenged by
demurrer because the basis for joining those offenses was
not expressly alleged. Instead of seeking another indictment
from the grand jury, the district attorney obtained leave
from the trial court to amend the indictment by adding allegations specifying the statutory basis for joinder, without
adding factual allegations about the crimes. Defendant was
convicted on some of the charges at trial, and the Court of
Appeals affirmed. State v. Haji, 

, 

 (2018).
         The question on review is whether a district attorney may add allegations specifying the statutory basis for
joinder of multiple offenses to an indictment instead of
resubmitting the case to a grand jury. We conclude that neither the statute permitting joinder of multiple offenses in a
single indictment nor Article VII (Amended), section 5(6), of
the Oregon Constitution precludes a district attorney, with
approval of the trial court, from amending an indictment
to add allegations specifying the statutory basis for joinder
of multiple offenses. We affirm the decision of the Court of
Appeals, based in part on different reasoning, and affirm
the judgment of the circuit court.
                    I. BACKGROUND
         As background, the state’s theory of the case was
that defendant twice entered the apartment where the victim lived, committing crimes. The first time he entered the
apartment, defendant took a tablet computer and threatened the victim with a gun and then a kitchen knife, which
he took when he left. Several hours after the first incident,
the victim returned and found defendant inside the apartment again. The victim called the police, who soon found
and arrested defendant, still in possession of his firearm.
        The salient facts are procedural. The state charged
defendant with seven offenses in a single indictment
returned by a grand jury: one count of first-degree robbery
and one count of first-degree robbery with a firearm, ORS
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164.415; two counts of first-degree burglary with a firearm,
ORS 164.225; one count of unlawful use of a weapon and
one count of unlawful use of a weapon with a firearm, ORS
166.220; and one count of felon in possession of a firearm,
ORS 166.270. The indictment stated that the charged conduct occurred “on or about January 14, 2016” and described
each offense in the language of the applicable criminal statutes. The indictment did not expressly state any statutory
basis for joinder of the counts. Nothing on the face of the
indictment linked any of the counts specifically to either the
first or the second entry into the victim’s apartment or, for
that matter, indicated that the charges stemmed from two
incidents.
         Not long after that, the Court of Appeals held in
State v. Poston, 

, 

 (2016),
adh’d to on recons, 

, 

, rev den,

 (2017), that a charging instrument is required
to allege “the basis for the joinder of the crimes that are
charged in it.” Anticipating a demurrer by defendant, the
state moved for leave to amend the indictment to comply
with the holding in Poston. Specifically, the state sought to
add to each count an identical allegation stating two of the
three permissible statutory bases for joinder:
       “This count constitutes part of a common scheme or plan
   based on two or more acts or transactions with the other
   counts of this indictment. This count is of the same and
   similar character as the conduct alleged in the other counts
   of this indictment. This count is connected together by two
   or more acts or transactions with the other counts of this
   indictment.”
(Emphases added.) See ORS 132.560(1)(b)(A), (C) (permitting
joinder of offenses “[o]f the same or similar character” or
“[b]ased on two or more acts or transactions connected
together or constituting parts of a common scheme or plan”).
         The state contended that those were amendments of
“form” and, therefore, authorized by Article VII (Amended),
section 5(6). That provision states that a “district attorney
may file an amended indictment or information whenever,
by ruling of the court, an indictment or information is held
to be defective in form.” Defendant filed a written objection
388                                                State v. Haji

to the state’s motion, asserting that the district attorney
could not add the allegations stating the statutory bases for
joinder without resubmission of the case to the grand jury,
because such amendments would be of substance rather
than “form.”
         At the hearing on the state’s motion, the trial court
granted defendant leave to file a demurrer to bring the case
into the correct legal posture, instructed the state to file a
short factual background of the charged conduct, which the
state did, so that the court could determine the nature of
the evidence as to each count, and took the matter under
advisement. Accordingly, defendant filed a demurrer, asserting that the indictment on its face failed to meet the joinder
requirements of ORS 132.560(1)(b) and should be dismissed
under Poston. Ultimately, the trial court granted the state’s
motion for leave to amend the indictment and, consequently,
denied defendant’s demurrer.
         After a jury trial, defendant was convicted of one
count of first-degree burglary with a firearm, unlawful use
of a weapon with a firearm, and felon in possession of a firearm. The jury acquitted him of the remaining four counts.
        Defendant appealed and, as relevant here, assigned
error to “the trial court’s allowance of the state’s motion
to amend the indictment and its consequent denial of his
demurrer.” Haji, 

. The Court of Appeals
upheld the trial court’s rulings. 

.
         In reaching its conclusion, the Court of Appeals
focused on “whether the omission of th[e] allegations [stating the statutory basis for joinder] from the original indictment was a defect of ‘form’ within the meaning of Article VII
(Amended), section 5(6).” Haji, 

. It
resolved that question by turning to three considerations
that this court had articulated in State v. Wimber, 

, 

 (1992), to determine whether additional
allegations limiting the date range of some of the charged
crimes were amendments of “form” for purposes of Article VII
(Amended), section 5(6):
      “(1) Did the amendment alter the essential nature of
   the indictment against defendant, alter the availability to
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   him of defenses or evidence, or add a theory, element, or
   crime? …
      “(2) Did the amendment prejudice defendant’s rights to
   notice of the charges against him and to protection against
   double jeopardy? …
      “(3) Was the amendment itself sufficiently definite and
   certain?”
Haji, 

 (quoting Wimber, 

).
         Analyzing the considerations from Wimber, the
Court of Appeals concluded that the joinder allegations that
the district attorney had added to the indictment were matters of “form” and, thus, constitutionally permissible. Haji,

. First, the court determined that the
amendments did not alter the “ ‘essential’ nature” of the
indictment; the amendments only “demonstrate[d] that the
charges met the statutory procedural standard for being
tried as part of a single case,” and they neither changed
the defenses available to defendant, altered the charges
in a way that would affect the availability of evidence, nor
added a new theory, element, or crime. 

 As to the second
consideration, the court concluded that the amendments did
not prejudice defendant’s right to notice or implicate double jeopardy. 

. Finally, the Court of Appeals determined that the amendments, by tracking the wording of the
joinder statute, were “sufficiently clear and definite” under
Poston to properly allege the basis for joinder. 

         The Court of Appeals also concluded that, because
the amended indictment comported with Poston, the trial
court’s denial of defendant’s demurrer was proper. 

 We
allowed defendant’s petition for review to address whether
the trial court erred in allowing the district attorney to
amend the indictment to add allegations specifying the statutory bases for joinder of multiple felony charges.
                       II. ANALYSIS
        Under ORS 132.560(1), an indictment generally must
charge only one offense, but the state may charge a defendant with multiple offenses in a single indictment when the
offenses “are alleged to have been committed by the same
person or persons” and those offenses are “[o]f the same or
390                                                               State v. Haji

similar character”; “[b]ased on the same act or transaction”;
or “[b]ased on two or more acts or transactions connected
together or constituting parts of a common scheme or plan.”
We recently confirmed the Court of Appeals’ conclusion in
Poston: An indictment charging a defendant with multiple
offenses must contain the basis for joinder of multiple offenses
under ORS 132.560(1)(b). State v. Warren, 

,

 (2018). As we explained in Warren, “it usually is
sufficient for the state to allege the basis for joinder by using
the language of the joinder statute.” 

 (citing
State v. Huennekens, 

, 

 (1966)).
         On review, defendant contends (1) that ORS 132.560
and Article VII (Amended), section 5(6), of the Oregon
Constitution require a grand jury—and only a grand
jury, not a district attorney—to find evidence supporting
an allegation that a statutory basis for joinder exists and
(2) that an indictment that omits that allegation is deficient
in substance. The state responds that the trial court had
the authority to allow the district attorney to make the
amendment, because the grand jury does not have exclusive
responsibility under the statute or the Oregon Constitution
to allege the statutory basis for joinder.1
         We start our analysis with the role of the grand
jury under the joinder statute, because we first attempt to
resolve cases on subconstitutional grounds when they are
available. State v. Conger, 

, 

(1994). After concluding that ORS 132.560 does not require
a grand jury—and only a grand jury—to allege the statutory basis for joinder of multiple charges in an indictment,
we address whether Article VII (Amended), section 5(6), contains that requirement and conclude that it does not.
A.    Role of the Grand Jury Under ORS 132.560
        Although defendant relies almost exclusively on his
constitutional argument, defendant implies that the joinder

     1
       The state adds that, in any event, the trial court did not commit reversible error for either of two reasons: the original indictment sufficiently alleged a
proper basis for joinder or, alternatively, if the indictment was facially deficient,
defendant failed to establish actual prejudice as a result. Because of our resolution of the case on the state’s primary argument, we need not reach the state’s
backup arguments.
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statute itself requires a grand jury to find and allege the
statutory basis for joinder of multiple offenses in the indictment. We agree with the state that ORS 132.560 does not
require a grand jury to find and allege the statutory basis
for joinder.
         We start our construction of the statute with its
text. State v. Gaines, 

, 

(2009) (stating that we examine a statute’s text and context, together with helpful legislative history). The statute
contains four subsections. In the first subsection, the law
states, and provides exceptions to, the general rule that a
charging instrument must charge one offense:
      “A charging instrument must charge but one offense,
   and in one form only, except that:
       “(a) Where the offense may be committed by the use of
   different means, the charging instrument may allege the
   means in the alternative.
      “(b) Two or more offenses may be charged in the same
   charging instrument in a separate count for each offense if
   the offenses charged are alleged to have been committed by
   the same person or persons and are:
      “(A)   Of the same or similar character;
      “(B) Based on the same act or transaction; or
       “(C) Based on two or more acts or transactions connected together or constituting parts of a common scheme
   or plan.”
ORS 132.560(1).
         In the second subsection, the statute permits a
court to consolidate two or more charging instruments
upon the court’s determination that they meet the joinder
requirements of ORS 132.560(1)(b): “If two or more charging
instruments are found in circumstances described in subsection (1)(b) of this section, the court may order them to be
consolidated.” ORS 132.560(2).
        The third subsection permits a court to remedy prejudice caused by joinder of offenses under ORS 132.560(1):
       “If it appears, upon motion, that the state or defendant
   is substantially prejudiced by a joinder of offenses under
392                                                 State v. Haji

   subsection (1) or (2) of this section, the court may order an
   election or separate trials of counts or provide whatever
   other relief justice requires.”
ORS 132.560(3). Finally, the statute defines “charging
instrument”:
       “As used in this section, ‘charging instrument’ means
   any written instrument sufficient under the law to charge
   a person with an offense, and shall include, but not be limited to, grand jury indictments, informations, complaints
   and uniform traffic, game or boating complaints.”
ORS 132.560(4).
         The statute’s text does not support defendant’s view
that a grand jury must allege the statutory basis for joinder
of multiple charges. First, no part of the statute expressly
requires a grand jury to find and allege one or more of the
grounds listed in ORS 132.560(1)(b) for joining multiple
charges in a single charging instrument. Indeed, the term
“grand jury” appears only in the definition of “charging
instrument” in subsection (4), which includes “grand jury
indictments” as well as charging instruments that do not
involve grand juries at all. ORS 132.560(4). Moreover, while
subsection (4) appears to describe the kinds of charging
instruments subject to the joinder provisions in subsections (1) through (3), nothing specifies who must determine
whether the allegations in the charging instrument support
joinder.
         Second, the text of ORS 132.560(2) undercuts defendant’s view that the grand jury has the sole responsibility
to find and allege the statutory basis for joinder of multiple charges. Subsection (2) permits a court to order two or
more charging instruments to be consolidated—without
resubmission of the combined charges to a grand jury in
the case of a felony indictment—when they “are found in
circumstances described in subsection (1)(b),” that is, when
the charging instruments show grounds for joinder of the
charges for trial in a single case, as described in subsection (1)(b). The inclusion of that provision in the same statute that lists grounds for joinder suggests that the legislature did not imbue grand juries with exclusive authority to
determine whether multiple charges should be included in a
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single indictment.2 Based on the text alone, we do not understand ORS 132.560 to give the grand jury the sole authority
to find and allege the statutory basis for joinder of multiple
charges in an indictment. See State v. McNally, 

, 

 (2017) (“It is axiomatic that this court does
not insert words into a statute that the legislature chose not
to include.”).
         And when the statutory text is viewed in the context of other statutes within ORS chapter 132, the potential
for reading ORS 132.560 to require a grand jury to find and
allege the statutory basis for joinder does not improve.3 A
grand jury is defined in ORS chapter 132, which is devoted
to grand juries and accusatory instruments, as “a body of
seven persons drawn from the jurors in attendance upon
the circuit court at a particular jury service term, having
the qualifications prescribed by ORS 10.030 and sworn to
inquire of crimes committed or triable within the county
from which they are selected.” ORS 132.010. The description
of the grand jury’s duties and procedures is primarily contained within ORS 132.310 to 132.430. Notably, the joinder
statute is not within that range of statutes, and none of those
statutes ascribes to the grand jury the sole power to determine whether grounds justifying joinder of multiple charges
in an indictment exist. Rather, overall, the grand jury’s role
and duties as described in ORS chapter 132 appears focused
on investigating whether the state may charge someone
with crimes.4
     2
       In State v. Boyd, this court suggested that to avoid the risk of “forfeiting
the opportunity to prosecute again” by virtue of a criminal defendant’s double
jeopardy defense, a prosecutor who is forced to make a difficult choice about
whether charges are sufficiently interrelated for joinder should “obtain separate
indictments and then make a timely pretrial motion to consolidate the charges
for trial.” 

, 

 (1975) (internal quotation marks and
citation omitted).
     3
       Neither party presents legislative history concerning the enactment of ORS
132.560.
     4
       See, e.g., ORS 132.310 (the grand jury “shall retire into a private room and
may inquire into crimes committed or triable in the county and present them
to the court, either by presentment or indictment”); ORS 132.380 (the grand
jury “may indict a person for a crime when it believes the person guilty thereof,
whether such person has been held to answer for such crime or not”); ORS
132.320(1) (in the “investigation of a charge for the purpose of indictment, the
grand jury shall receive no other evidence than such as might be given on the
trial of the person charged with the crime in question,” subject to exceptions for
394                                                             State v. Haji

          Other statutes in ORS chapter 132 concern the
district attorney’s role with respect to the grand jury and
indictments, and those do not address whether the grand
jury alone decides and alleges grounds that render it procedurally proper for the state to include multiple charges in a
single indictment under ORS 132.560(1). Pursuant to ORS
132.330, the district attorney “may submit an indictment to
the grand jury in any case when the district attorney has
good reason to believe that a crime has been committed
which is triable within the county.” And “when required by
the grand jury,” the district attorney “must prepare indictments or presentments for it and attend its sittings to advise
it in relation to its duties or to examine witnesses in its presence.” ORS 132.340. Neither statute addresses whether the
grand jury’s duties require it to consider whether joinder of
crimes in one indictment is proper.
         Finally, the statute that sets out the required contents of a grand jury indictment, ORS 132.550, suggests
that specification of the statutory basis for joinder of multiple counts is not necessarily submitted to the grand jury.
That statute provides:
        “The indictment shall contain substantially the
    following:
        “(1)   The name of the circuit court in which it is filed;
        “(2)   The title of the action;
       “(3) A statement that the grand jury accuses the defendant or defendants of the designated offense or offenses;
        “(4) A separate accusation or count addressed to each
    offense charged, if there be more than one;
       “(5) A statement in each count that the offense charged
    therein was committed in a designated county;
       “(6) A statement in each count that the offense charged
    therein was committed on, or on or about, a designated
    date, or during a designated period of time;

written reports and testimony in certain types of cases); ORS 132.370(1) (procedures for when “the grand jury is in doubt whether the facts, as shown by the
evidence before it, constitute a crime in law or whether the same has ceased to be
punishable by reason of lapse of time or a former acquittal or conviction”).
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        “(7) 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;
        “(8) The dates of all grand jury proceedings related to
     the offense or offenses charged;
        “(9) The signatures of the foreman and of the district
     attorney; and
        “(10)    The date the indictment is filed with the clerk of
     the court.”
Thus, ORS 132.550 requires that an indictment establish
that the grand jury accuses the defendant of designated
offenses, describe the acts constituting the offenses, and
describe where and when the offenses were committed. The
statutory basis for joinder of multiple charges is not listed as
part of the required contents of an indictment issued by the
grand jury, even though the statute itself anticipates that
more than one offense might be charged in the indictment.
See ORS 132.550(3) - (6), (8).
         In sum, although ORS 132.560(1)(b) does require
that an indictment establish a statutorily permissible basis
for joinder of multiple offenses, we reject the argument that
the joinder statute implicitly designates the grand jury as
the actor required to make that determination. That conclusion takes us to defendant’s more substantial constitutional
argument.
B.    Role of the Grand Jury Under Article VII (Amended),
      section 5, of the Oregon Constitution
         For his constitutional argument, defendant relies
on Article VII (Amended), section 5(6). As relevant here,
Article VII (Amended), section 5, provides:
         “(2) A grand jury shall consist of seven jurors chosen
     by lot from the whole number of jurors in attendance at the
     court, five of whom must concur to find an indictment.
        “(3) Except as provided in subsections (4) and (5) of
     this section, a person shall be charged in a circuit court
     with the commission of any crime punishable as a felony
     only on indictment by a grand jury.
396                                                 State v. Haji

       “…
       “(6) An information shall be substantially in the form
   provided by law for an indictment. The district attorney
   may file an amended indictment or information whenever,
   by ruling of the court, an indictment or information is held
   to be defective in form.”
(Emphasis added.)
        Defendant contends that the district attorney’s
amendment of the indictment in this case was impermissible under Article VII (Amended), section 5(6). He maintains that the indictment was defective in substance and,
therefore, not “defective in form.” The state argues that
the amendment addressed a defect in form, and it disputes
that any part of Article VII (Amended), section 5, assigns to
grand juries the sole responsibility to find and plead allegations supporting the joinder of multiple offenses in a single
indictment.
      1.   Reinke and Wimber
         To clarify the analytical approach we take, we first
address two precedents from this court that figure prominently in the parties’ arguments. The state initially contends that, in State v. Reinke, 

, 

, adh’d
to as modified on recons, 

, 

 (2013), this
court already definitively construed Article VII (Amended),
section 5, and that Reinke resolves the case in its favor by
precluding defendant’s argument. We disagree that Reinke
is dispositive.
         Reinke involved the defendant’s enhanced sentence
as a dangerous offender. The applicable statutes required
the district attorney to give the defendant timely written
notice of sentence enhancement facts but did “not require
those facts to be found by the grand jury and pleaded in
the indictment.” Reinke, 354 Or at 102 (citation omitted).
We described the issue on review as “whether the Oregon
Constitution requires that the facts necessary to impose a
dangerous offender sentence be found by the grand jury and
pleaded in the indictment.” Id. at 100.
       The state bases its argument on the court’s statement in Reinke that Article VII (Amended), section 5,
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“requires the grand jury to find and plead only the elements
of the crime as defined by the legislature.” 354 Or at 112
(emphasis added). The state submits that this court concluded that the grand jury’s role is limited to finding and
pleading elements of crimes, which does not extend to determining the statutory basis for joining crimes in a single
indictment.
         But in arguing that a grand jury was required
to have found and alleged the statutory facts required for
imposing an enhanced dangerous offender sentence, the
defendant in Reinke relied on Article VII (Amended), section
5(3)—not section 5(6), on which defendant relies. Section 5(3)
provides that “a person shall be charged in a circuit court
with the commission of any crime punishable as a felony
only on indictment by a grand jury.” The defendant in Reinke
argued that the phrase “any crime punishable as a felony”
in section 5(3) included both the elements of the underlying
crime and “any fact that authorizes an enhanced sentence
for that crime[.]” 354 Or at 106. Thus, Reinke was a case construing the term “crime” in Article VII (Amended), section
5(3), even though this court broadly couched its conclusion
as pertaining to “Article VII (Amended), section 5.” 5
         We acknowledge, as the state’s argument reflects,
that the opinion in Reinke can be read as a conclusion about
the extent of the grand jury’s role with respect to indictments generally. We are reluctant, though, to rely solely on
Reinke when the court in that case was presented with, and
resolved, arguments concerning the meaning of Article VII
(Amended), section 5(3), that defendant here does not make.
As we later discuss, that case provides context for our construction of Article VII (Amended), section 5(6). But Reinke
is not, by itself, dispositive in this case.

   5
       In full, the court concluded as follows:
       “Considering the text, context, and legislative history of Article VII
   (Amended), section 5, we conclude that section 5 requires the grand jury to
   find and plead only the elements of the crime as defined by the legislature.
   Article VII (Amended), section 5, does not contemplate, as a matter of state
   constitutional law, a ‘crime’ that differs from the conventional crime that the
   legislature has defined.”
Reinke, 354 Or at 112-13.
398                                             State v. Haji

         The second precedent we address is Wimber, with
its multifactor test. As we previously recounted, the Court
of Appeals relied on that test to conclude that an omission of
statutory joinder allegations was a defect in form and that
therefore the district attorney’s amendment was proper.
Haji, 

. On review, the parties dispute
how to apply the Wimber test. Defendant argues that the test
should only apply to amendments relating to a single-count
indictment, or that, if Wimber supplies the controlling test,
then the Court of Appeals incorrectly decided that the original indictment in this case was defective merely in form.
The state argues that the Wimber test does control and that
the Court of Appeals properly applied it in this case. We do
not share either party’s perspective and conclude that the
test set out in Wimber does not apply to or control the outcome of the issue presented in this case.
         In Wimber, the grand jury indictment alleged that
all 12 crimes occurred between certain dates in 1984 and
1989. 

. At the beginning of trial, the defendant
contended that the charges were time-barred. 

.
The state and the defendant disputed whether a six-year or
a three-year limitation period applied to the crimes (three
counts of first-degree sodomy, three counts of first-degree
rape, and six counts of first-degree sexual abuse). 

. The trial court amended the indictment so that three
of the sexual abuse counts fell within the three-year limitation period that the defendant argued applied, and the other
three sexual abuse counts fell outside that limitation period.

. In other words, the trial court reduced the date
range applicable to each of the sexual abuse counts. The jury
then convicted the defendant on all three amended charges
within the three-year limitation period, and the trial court
entered a judgment of conviction on those charges. 

.
         On review, this court applied a multifactor test
that it derived from two earlier cases and determined that
the trial court had made “a permissible amendment as to
a defect in the form of the indictment.” 

.
In making that determination, this court examined the
time period during which all the charged crimes had been
committed, as found by the grand jury, and the trial court’s
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narrowing of that period for the sexual abuse counts. It
appears that an integral part of this court’s determination
that the amendment did not alter the essential nature of the
indictment, id. at 114, was its conclusion that “[t]ime is not
an essential element of the offenses charged in the indictment at issue,” id. at 110. Importantly, this court’s test in
Wimber was focused on changes to the allegations concerning the crimes charged, as found by the grand jury.
         Here, by contrast, the district attorney’s amendment did not change a fact about the crimes that the grand
jury had already found. Instead, the amendment added a
component, articulating the statutory basis for joinder of
the charges that needed to appear on the face of the indictment as a matter of law for notice purposes, pretrial, so that
defendant and the trial court could understand whether
joinder was proper. See Warren, 

 (explaining that notice is “necessary for the defendant to make an
informed decision about whether to demur to the indictment
on the ground that the allegations are insufficient to support joinder and, later, to make an informed decision about
whether to move to sever on the ground that the evidence
is insufficient to support joinder” and “for the trial court to
make informed rulings on such demurrers and motions”).
The Wimber test, therefore, does not apply in situations such
as this one.
         Although we revisit both Reinke and Wimber in our
contextual analysis of Article VII (Amended), section 5(6),
neither case supplies a ready-made resolution of the issue
presented. Accordingly, we undertake an analysis of Article
VII (Amended), section 5(6), to determine whether the district attorney was barred from amending the indictment in
this case by adding joinder allegations.
    2. Applicable interpretive principles
         The genesis of Article VII (Amended), section 5(6),
affects the interpretive principles that we apply in construing it. The people enacted the current version of Article
VII (Amended), section 5, in 1974 upon legislative referral
to Oregon voters. SJR 1 (1973) (referring the measure); Or
Laws 1975, p 6 (recording passage at the November 1974
election). The original version of section 5 was created
400                                                             State v. Haji

through the initiative process in 1910, when voters approved
a new Article VII. Or Laws 1911, pp 7-8 (recording passage
at the November 1910 election). Article VII (Amended), section 5(6), imports the key phrase at issue in this case—the
“district attorney may file an amended indictment whenever an indictment [is] … defective in form”—from the
1910 version of section 5, which in turn was taken from the
1908 amendment of Article VII (Original), section 18, of the
Oregon Constitution. Or Laws 1909, p 12 (recording passage
at the June 1908 election).6
         When amended constitutional provisions are adopted
by voters, we attempt to “discern the intent of the voters” by
examining the text of the provision itself and its context.
Roseburg School Dist. v. City of Roseburg, 

,

 (1993). We may “examine the historical context” of the amendment’s adoption “for possible evidence of
a settled understanding” of its terms. Couey v. Atkins, 

, 

 (2015). As a corollary to that
rule, when the disputed text of an amended constitutional
provision consists of text reincorporated from a prior version
of the constitutional provision, this court will examine the
enactment of that prior version in our effort to determine the
meaning of the amended provision. AAA Oregon/Idaho Auto
Source v. Dept. of Rev., 

, 

 (2018).
As we later discuss, defendant places significant weight on
what voters intended in 1908 when they first adopted the
disputed phrase as part of the Oregon Constitution.
         In Ecumenical Ministries v. Oregon State Lottery
Comm., 

, 559 n 7, 

 (1994), this court
emphasized that we must use caution before ending a textual
analysis of a constitutional amendment without considering
its history. More recently, we clarified in Couey that, when
we construe constitutional amendments adopted by voters,
we will “consider the measure’s history, should it appear
useful to our analysis, without necessarily establishing the

    6
      We note that the relevant constitutional provision was amended on one
additional occasion between 1910 and 1974. In 1958, the voters approved an
amendment that authorized the legislature to enact laws permitting the calling
of a special grand jury. Or Laws 1959, p 6 (recording passage at the November
1958 election); Official Voters’ Pamphlet, General Election, Nov 4, 1958, 26. That
amendment does not inform our analysis, and we do not discuss it further.
Cite as 

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existence of multiple reasonable constructions of the provision at issue.” 

 (internal quotation marks and
citation omitted). As a result, there is now little practical
distinction between our methodology for interpreting original constitutional provisions and provisions later adopted
by voters. 

 That history includes “sources of information
that were available to the voters at the time the measure
was adopted and that disclose the public’s understanding
of the measure.” AAA Oregon/Idaho Auto Source, 

 (internal quotation marks and citation omitted); see also
State v. MacBale, 

, 

 (2013) (examining “a more complete look at the circumstances surrounding the creation of Article I, section 10” to help determine
which types of court proceedings the framers would have
considered to be properly closed to the public). With those
principles to guide us, we turn to conduct that analysis.
    3. Text and context
         We begin with the text and context of Article VII
(Amended), section 5(6). For convenience, we repeat that section 5(6) provides:
       “An information shall be substantially in the form provided by law for an indictment. The district attorney may
   file an amended indictment or information whenever, by ruling of the court, an indictment or information is held to be
   defective in form.”
(Emphasis added.)
         At the outset, several observations can be made
from the text of Article VII (Amended), section 5(6). First,
Oregon voters in 1974 would have understood from the plain
meaning of the text that situations would arise in which an
indictment would need to be amended and that some of those
amendments could be accomplished by the district attorney
simply filing an amended indictment instead of presenting
the case to the grand jury again. Second, the text does not
address multiple-count indictments and does not assign, at
least expressly, the responsibility of determining the basis
for joinder to the grand jury. And third, the text does not
define a defect “in form” that would permit a district attorney to file an amended indictment.
402                                                                State v. Haji

         Those same observations apply to the text of Article
VII (Original), section 18, which first included the phrase
“held to be defective in form.” As amended in 1908, Article
VII (Original), section 18, provided:
       “The Legislative Assembly shall so provide that the
    most competent of the permanent citizens of the county
    shall be chosen for jurors; and out of the whole number in
    attendance at the court, seven shall be chosen by lot as
    grand jurors, five of whom must concur to find an indictment. No person shall be charged in any circuit court with
    the commission of any crime or misdemeanor defined or
    made punishable by any of the laws of this State, except
    upon indictment found by a grand jury. Provided, however,
    that any district attorney may file an amended indictment
    whenever an indictment has, by a ruling of the court, been
    held to be defective in form.”
(Emphasis in original.)
         Because Article VII (Amended), section 5(6), expressly
permits a district attorney to amend an indictment, the parties focus their arguments on what it means for an indictment “to be defective in form” and whether that phrase
encompasses an amendment to allege the statutory bases
supporting joinder of multiple offenses.7 Although the parties largely disagree on the proper approach to the analysis
and on their conclusions, they do agree that defects “in
form” are to be distinguished from defects in the substance
of an indictment. We concur with that starting point in the
analysis.
      In analyzing the meaning of the text, “words of
common usage that are not defined” typically are to be given

     7
       The dissent adds that the trial court erred by allowing the district attorney’s
amendment and disallowing defendant’s demurrer, because the dissent views the
indictment as so ambiguous that it failed to give defendant enough information
about the crimes being charged. See, e.g., 366 Or at 421 (Duncan, J., dissenting).
But, as noted in the statement of facts, the grand jury found historical facts as
to each of the charges alleged in the indictment, and defendant’s demurrer was
based solely on the failure of the indictment to contain allegations identifying the
statutory basis for joinder—not its failure to give defendant notice of the nature
of the charges against him. Specifically, defendant contended that the indictment
failed to meet the joinder requirements on its face because it failed “to allege that
the charged offenses are either (1) of the same or similar character, (2) based on
the same act or transaction, (3) or based on two or more acts or transactions connected together or constituting parts of a common scheme or plan.”
Cite as 

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their “plain, natural, and ordinary meaning.” Ecumenical
Ministries, 

. But when the words used in a
constitutional provision enacted by initiative or referendum “have a well-defined legal meaning, we will give the
words that meaning in construing the provision.” Ester v.
City of Monmouth, 

, 

 (1995); see also
King v. City of Portland, 

 (1865) (“If, when
our Constitution was made, certain words or sentences had
obtained a certain signification or force, either by common
usage or legal decision, it must be presumed, if found in
that instrument that they bear that established meaning,
unless plainly from the context or other provision, a different meaning is certainly intended.”).
          Here, the 1974 voters approved Article VII (Amended),
section 5(6), with the term “defective in form,” a legal term
of art taken from Article VII (Original), section 18 (1908).
When voters approved section 18 in 1908, the term “form”
appeared in multiple places in the then most recent compilation of the Oregon Criminal Code to describe a type of
defect in an indictment. For example, section 1372 provided
that if “the indictment were dismissed upon a demurrer to
its form or substance,” it was not deemed a former acquittal.
The Codes and Statutes of Oregon, title XVIII, ch IX, § 1372
(Bellinger & Cotton 1901). The term also appeared in the
next section, which described what was deemed a former
acquittal: “When, however, the defendant was acquitted on
the merits, he is deemed acquitted of the same crime, notwithstanding a defect in form or substance in the indictment on which he was acquitted.” Id. § 1373. Section 1315 of
the same code stated: “No indictment is insufficient, nor can
the trial, judgment, or other proceedings thereon be affected
by reason of a defect or imperfection in matter of form which
does not tend to the prejudice of the substantial rights of
the defendant upon the merits.” When the drafters chose to
allow amendments to indictments determined to be “defective in form” in Article VII (Original), section 18, they used a
phrase that the statutes pertaining to indictments had contained since 1864. See Code of Criminal Procedure, ch VIII,
§ 81, p 455 (1864), codified in General Laws of Oregon, Crim
Code, ch VIII, § 81, p 351 (Deady & Lane 1843-1872) (providing that an indictment is not insufficient “by reason of a
404                                                               State v. Haji

defect or imperfection in matter of form”). Those statutory
references support our conclusion that the term “form” as
used in Article VII (Amended), section 5(6), is a legal term
of art.
        We give legal terms of art their established legal
meanings. See, e.g., DCBS v. Muliro, 

, 

 (2016) (noting rule in the context of statutory interpretation). Contemporary legal dictionaries from the period
demonstrate that, in 1908, a defect “in form” in an indictment had a legal meaning that stood in contrast to a defect
in substance.
         The 1897 edition of Bouvier’s Law Dictionary defines
a “defect” as “[t]he want of something required by law.” John
Bouvier, 1 Bouvier’s Law Dictionary 528 (1897). Under the
definition of “form,” Bouvier’s explains that “[f]orm is usually put in contradistinction to substance.” Bouvier’s at 831.
Thus, the “difference between matter of form and matter of
substance … is that if the matter pleaded be in itself insufficient, without reference to the manner of pleading it, the
defect is substantial; but that if the fault is in the manner of
alleging it, the defect is formal[.]” 

 (emphasis in original).8
         Bouvier’s goes on to provide examples of the difference between substance and form: Omission from a pleading
of “the performance of a condition precedent, when such condition exists,” for example, would be a defect of substance.
Bouvier’s at 831. However, “duplicity [and other examples]
are only faults in form[.]” 

 (emphasis added). That example of duplicity as a defect in form is particularly relevant
in this case. Defining “duplicity” in the context of pleading,
Bouvier’s explained that it included the faulty “joinder of two

    8
      Another legal dictionary from that era offers a similar distinction between
form and substance. The entry for “form” provides:
         “A distinction is often made between matters of form and matters of substance, particularly in the interpretation of statutes allowing amendment or
    waiver of formal defects in pleadings and other proceedings. With respect to
    pleadings, the distinction is, that, where the matter pleaded is in itself insufficient, without reference to the manner of pleading it, the defect is substantial; but, where the fault is in the manner of pleading, the defect is merely
    formal[.]”
Benjamin Vaughan Abbott, 1 Dictionary of Terms and Phrases Used in American
or English Jurisprudence 517 (1879).
Cite as 

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or more distinct offences in one count of an indictment ….”
Id. at 626.9 Thus, at the turn of the twentieth century, the
exception in Article VII (Original), section 18, for amendments by a district attorney to address defects “in form”
suggests that it encompassed indictments that improperly
contained two offenses.
         Oregon law also distinguished between indictments
defective “in form” and “in substance.” That dichotomy is
consistent with this court’s interpretation of Article VII
(Original), section 18, in a case decided not long after its
1908 enactment. This court’s interpretation of Article VII
(Original), section 18, in State v. Moyer, 

, 

(1915), provides helpful context. See Stranahan v. Fred
Meyer, Inc., 

, 

 (2000) (stating that
contextual analysis includes relevant case law interpreting
the constitutional amendment at issue); Coultas v. City of
Sutherlin, 

, 

 (1994) (examining earlier case law construing initiated constitutional
amendment in question).
         In Moyer, this court stated that “amendment of the
indictment in matters of substance is unauthorized” and
noted “a well-recognized distinction between matters that
are purely matters of form and matters that go to the substance of the indictment.” 

. In analyzing
Article VII (Original), section 18, the court discussed the
difference between matters of substance and matters of form
and explained that “formal matters” are “not essential to the
charge and merely clerical errors, such as where the defendant cannot be misled to his prejudice by the amendment.”

 (emphasis added). The court also quoted treatises to explain the distinction. It concluded that “[m]atters
that are necessary to be proved as alleged are material to
the indictment,” and it quoted volume 1 of the Encyclopædia
of Pleading and Practice to support that proposition:
    “… the power of amendment extends to formal matters
    which are not essential to the charge, and mere clerical errors, etc., where the defendant cannot be misled or

    9
      Thus, as used in this case, the term “duplicity” is a legal term of art that
is unrelated to the term’s current implication of “deception” and “bad faith.”
Webster’s Third New Int’l Dictionary 703 (unabridged ed 2002).
406                                                State v. Haji

   prejudiced; but, on the other hand, any omission or misstatement which prevents an indictment or information
   from showing on its face that an offense has been committed, or from showing what offense is intended to charge, is
   a defect in matter of substance which cannot be cured by
   amendment ….”

 (emphasis added). Thus, Moyer distinguished
amendments of substance from those of form in terms of
whether the defect in an indictment concerned what is necessary “to be proved as alleged” or to show that “an offense
has been committed.” 

         Over 75 years later, this court construed Article VII
(Amended), section 5(6), in Wimber, describing its decision
as one following the holding in Moyer. First, the court noted
that, although Moyer was decided in 1915, well before the
adoption of Article VII (Amended), section 5, in 1974, the
constitutional provision at issue there, Article VII (Original),
section 18, contained nearly identical wording. 

n 19. The court in Wimber then explained that, “[c]onsistent with the holding” in Moyer, its analysis would address
whether the court’s amendment of the indictment to modify
allegations concerning the timing of the criminal conduct
was permissible under Article VII (Amended), section 5(6),
based on a multifactor test. 

.
        That test was derived directly from statements in
Moyer, compare Wimber, 

, with Moyer, 

, and the constitutional purposes of an indictment by grand jury. Those purposes are threefold and focus
on adequate identification of the charged offense:
   “ ‘(1) to inform the accused of the nature and character of
   the criminal offense with which he is charged with sufficient particularity to enable him to make his defense,
   (2) to identify the offense so as to enable the accused to
   avail himself of his conviction or acquittal thereof in the
   event that he should be prosecuted further for the same
   cause, and (3) to inform the court of the facts charged so
   that it may determine whether or not they are sufficient to
   support a conviction.’ ”
Wimber, 

 (quoting State v. Smith, 

, 

 (1948)).
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         Thus, in both Moyer and Wimber, this court previously addressed the meaning of Article VII (Original), section 18, and Article VII (Amended), section 5(6). The emphasis in both cases, as this court summed up in Wimber, was
that “[a] matter that is essential to show that an offense has
been committed is a matter of substance.” 

.
         And in State v. Pachmayr, 

, 

(2008), this court more recently revisited the issue of what an
indictment defective in “form” is for purposes of Article VII
(Amended), section 5(6). After noting that section 5(6) was
substantially similar to Article VII (Original), section 18,
the court reviewed statutes in effect at the turn of the twentieth century and the definition of “form” in Black’s Law
Dictionary. Pachmayr, 

 (citing Black’s Law
Dictionary 510 (1st ed 1891). As a result, and as we conclude
in this case, the court concluded that the term “form” was
used in the same sense as in those contemporaneous statutes and that Article VII (Original), section 18,
   “prohibited the district attorney from amending an indictment that was insufficient to charge the crime—an indictment that was defective in substance—in order to make it
   sufficient, but allowed the district attorney to correct other
   defects—defects in form.”
Pachmayr, 

. The court noted that that understanding of indictments defective in form was consistent
with Moyer and Wimber. 

. The court also quoted
with approval the conclusion in Wimber that defects in matters of substance are those “essential to show that an offense
has been committed.” 

.
         The court in Pachmayr went on to apply the Wimber
test to determine whether the district attorney permissibly
amended the indictment at the close of the state’s case-inchief. The indictment contained three counts of second-degree assault, which all specified that the defendant had
used “an automobile” as his weapon. 

. In two of
those counts, the allegation stated that the defendant had
committed the crime by means of a “dangerous weapon”;
in Count 2, instead of “dangerous weapon,” the indictment
said “deadly weapon.” 

 The trial court permitted the
state to change “deadly” to “dangerous” in Count 2, and the
408                                                 State v. Haji

defendant was convicted on all three second-degree assault
charges. 

. This court concluded that the amendment (1) did not alter the indictment’s essential nature;
(2) did not prejudice the defendant’s right to notice of the
charges against him to protect against double jeopardy;
and (3) did not prejudice the defendant by depriving him of
a defense. 

. In so holding, the court emphasized
that it was satisfied that “the grand jury, not the prosecutor, determined the charge to be brought and found the
facts on which the charge was based,” which maintained
the grand jury’s role. 

. Thus, Pachmayr is fully
consistent with our conclusions about what it means for
an indictment to be defective in form and when the test
in Wimber should be used to analyze whether the district
attorney could amend an indictment.
         Reinke also sheds some light on our understanding
of Article VII (Amended), section 5(6), because the court in
Reinke construed another part of section 5 that was enacted
by the people at the same time in 1974. The defendant in
Reinke, who was convicted of second-degree kidnapping, contended that it was necessary for the grand jury to find and
allege additional facts specified in ORS 161.725(1)(b) that
would subject him to an enhanced sentence as a dangerous offender, because those were “elements” of the offense.
Reinke, 354 Or at 100. This court considered “whether sentence enhancement facts are elements of an offense that,
as a matter of state constitutional law, the grand jury must
find and the indictment must allege.” Id. at 101. The court
explained the defendant’s argument as follows:
      “Article VII (Amended), section 5, requires the state
   to proceed by an indictment or an information if it wishes
   to charge a ‘crime punishable as a felony.’ As we understand it, defendant’s argument under that section turns
   on the proposition that the constitutional phrase ‘a crime
   punishable as a felony’ refers not only to the elements of
   the underlying crime but also to any fact that authorizes
   an enhanced sentence for that crime; that is, he views the
   word ‘crime’ as referring to both the elements of the offense
   and any sentence enhancement fact that the prosecutor
   invokes as a basis for seeking a greater sentence.”
Id. at 106 (quoting Or Const, Art VII (Amended), § 5(3)).
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         This court noted that, in 1908, “the people voted to
amend Article VII (Original), section 18, and made a grand
jury indictment mandatory for both crimes and misdemeanors.” Reinke, 354 Or at 108. The court then explained that a
“crime” in that section and in Article VII (Amended), section 5,
referred to prohibited acts that constituted an offense; thus,
this court had held that Article VII (Amended), section 5
(1929), “required only that the grand jury determine that
there is probable cause to find the elements of the ‘conventional charge.’ ” Reinke, 354 Or at 109 (quoting State v.
Hicks, 

, 

 (1958)). Importantly for
purposes of this case, this court in Reinke understood that
a “crime” for purposes of Article VII (Amended), section 5,
does not differ “from the conventional crime that the legislature has defined.” 354 Or at 113.
         To summarize, that case law supports three propositions: First, a well-recognized dichotomy of long standing
in Oregon law between indictments defective in substance
and in form illuminates the meaning of the phrase “defective in form.” Second, defects in indictments as to matters
that are essential to show that a crime has been committed are defects in substance; those that are not essential to
show that a crime has been committed are defects “in form.”
And, third, to show that a crime has been committed, it is
essential for a grand jury indictment to include the facts
supporting the elements of the crime, that is, “the conventional crime that the legislature has defined.”10 Reinke, 354
Or at 113.
          We disagree with the dissent’s view that our recent
decision in Warren, read in combination with Moyer, leads to
the conclusion that the amendment in this case is an allegation of substance that required the grand jury to issue a new
indictment. Quoting Moyer, 

, the dissent states

     10
        The dissent suggests that the grand jury must make other factual determinations beyond the facts supporting the elements of the crime and that those
factual determinations are also essential to show that a crime has been committed. The dissent proffers examples, such as the location of the crime, a fact that
establishes that venue is proper, and the date of the crime, a fact needed to establish that the prosecution was commenced within the limitation period permitted
for the crime. See 366 Or at 441 (Duncan, J., dissenting). We express no opinion
on that view.
410                                                           State v. Haji

that a matter is substantive for purposes of Article VII, section 5(6) if it “must be proved as alleged.” 366 Or at 430-31
(Duncan, J., dissenting). And, because we held in Warren,

, that an indictment must allege the basis for
joining charges, the dissent argues that the amendment in
this case—the statutory basis for joining the charges—was
an amendment of substance. 366 Or at 449 (Duncan, J.,
dissenting).
          At its heart, the dissent’s view is inconsistent with
Moyer (and Wimber and Pachmayr). The statutory basis for
joinder added to an indictment is not a matter that is essential to the charge—that is, a substantive change—because
it is not necessary to show that an offense has been committed. Though this court held in Warren that a multi-count
indictment must contain the basis for joinder to properly
bring multiple counts in one indictment, Warren was a case
about whether Oregon’s joinder statute required the basis
for joinder of multiple charges to be in an indictment—not
whether, for purposes of Article VII, section 5(6), the statutory basis for joinder is “essential to the charge,” Moyer, 

, that is, essential to show that a crime has been
committed.
          There is a difference between components that must
be included in an indictment because of statutory requirements and components that must be included for constitutionally based reasons. That difference undermines the
logic of the dissent’s reliance on Warren for what the Oregon
Constitution requires in Article VII (Amended), section 5(6).
         If the dissent were correct that the statutes concerning requirements for indictments control what this
court must understand as matters of form or substance in
an indictment for purposes of Article VII (Amended), section 5(6), then everything (or substantially everything)
listed in ORS 132.550 would be essential to be set out in a
grand jury indictment such that a subsequent amendment
to fix any failure would be an amendment of substance.11
But we need look no further than Wimber for a counterexample. By statute, an indictment requires “a statement in
    11
       ORS 132.550 provides that an indictment must contain “substantially” the
elements that it lists.
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each count that the offense charged therein was committed
on, or on or about, a designated date, or during a designated
period of time.” ORS 132.550(6). However, as this court held
in Wimber, time is not a material element of most offenses,
so an amendment shortening the time range in the indictment to comply with the statute of limitations is a permissible amendment. 

. The court explained
in Wimber that “the constitutional purposes of requiring an
indictment by grand jury” were met because “[n]o new or
different theory, element, or crime” was added. 

.
See also State v. Long, 

, 

 (1994) (time not a material element; thus, trial court
could correct error in indictment and instruct jury on the
end date for the timeframe during which the crime allegedly
occurred, even though the end date in the indictment was
before the date of the incident).
         Rather, the text and context of Article VII (Amended),
section 5(6), point to the following essential distinction: If
the failure of the indictment to include an allegation on the
statutory basis for joinder of multiple crimes is a matter
that is essential to show that a crime has been committed,
then the defect is one of substance that cannot be remedied
by the district attorney. But if the statutory basis for joinder of multiple crimes in the indictment is not essential to
show that a crime has been committed, then a failure to
include it presents a defect in form that can be corrected by
the district attorney’s amendment. The history of the provision in both Article VII (Original), section 18, and Article
VII (Amended), section 5(6), supports the latter reading.
    4. Historical analysis
         Under our constitutional jurisprudence, the historical analysis of an amended constitutional provision examines “sources of information that were available to the voters at the time the measure was adopted and that disclose
the public’s understanding of the measure.” Ecumenical
Ministries, 

 n 8. Examples of relevant sources
include “materials that are included in the Voters’ Pamphlet,
such as the ballot title, the explanatory statement, and the
legislative argument in support.” Shilo Inn v. Multnomah
412                                                 State v. Haji

County, 

, 

 (2001), adh’d to as modified on recons, 

, 

 (2002).
         We first examine the 1908 amendment of Article VII
(Original), section 18, which arose after legislative changes
permitted district attorneys to charge crimes by information rather than by grand jury indictment. In 1899, the legislature acted pursuant to Article VII (Original), section 18,
to authorize criminal prosecutions based on the filing of a
district attorney’s information. Or Laws 1899, §§ 1 - 3, p 99.
The legislature also authorized the district attorney to file
an information to correct any defect in an indictment. Or
Laws 1899, § 6, p 100. In the period between 1899 and 1908,
it appears that district attorneys charged even the most
serious felonies by information. See, e.g., State v. Blodgett,

, 

 (1907) (“The defendant by information of the district attorney was charged with the crime of
murder in the first degree[.]”).
         The 1908 Voters’ Pamphlet reflects that the referral of the constitutional amendment that first introduced
the phrase at issue in this case was a response to the wideranging powers that district attorneys had been granted.
The sole argument related to the proposed amendment was
submitted by 11 individuals, including Charles H. Carey and
Ben Selling. Official Voters’ Pamphlet, General Election,
June 1, 1908 (1908 Voters’ Pamphlet), 116. That argument,
in favor of the amendment, was a resounding call to voters to control the unchecked powers of district attorneys to
charge crimes. It began:
       “Under the present law, any district attorney can file
   an information against a man for any crime, from murder
   down. The accused is not entitled of right to any preliminary hearing and the first he knows of the matter may be
   his arrest. He may never be tried at all, the information or
   indictment may be dismissed, and yet his record is blackened. It may be that it is not intended from the start that
   he ever should be tried, but the information is issued to
   serve some political purpose, private revenge or the scheme
   of a ring hostile to the victim. It is un-American. It is too
   much like the despotism of Russia and it is too much power
   to be vested in the hands of any one man. The whole history
   of Anglo-Saxon institutions is a battle against this very
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   thing: the power of one man to brand another with crime
   and lodge him in prison.”
1908 Voters’ Pamphlet at 116.
        The 1908 Voters’ Pamphlet leads with the question
that was printed on the official ballot. It states:
      “For constitutional amendment providing for the choosing of jurors and grand jurors, and that no person can
   be charged in the Circuit Courts with the commission of
   a crime or misdemeanor except upon indictment found
   by a grand jury, except when a court holds an indictment
   to be defective, the District Attorney may file an amended
   indictment.”
Id. at 114 (emphasis added). Notably, that question posed
to voters mentioned that amending an indictment would
be possible, but it does not include the pivotal words “in
form” after the word defective. That omission is consonant
with the primary focus of the amendment: to enshrine in
the constitution the role of grand juries in finding a factual basis for charging crimes to prevent the dangers of
the “present arbitrary power lodged in one man.” Id. at
117.
        The voters approved the 1908 amendment. That
amendment withdrew the legislature’s authority to abolish
grand juries, re-established that a criminal prosecution may
only commence upon grand jury indictment, and limited the
extent of a district attorney’s ability to amend indictments
to matters of form. Or Const, Art VII (Original), § 18 (1908);
see Or Laws 1909, p 12.
         As earlier noted, voters in 1974 approved virtually
identical language concerning the district attorney’s ability to amend an indictment. Measure 3 was the legislative
referral to voters of the proposed constitutional amendment
to Article VII (Amended), section 5. The ballot title in the
1974 Voters’ Pamphlet read as follows:
   “REVISES CONSTITUTIONAL REQUIREMENTS FOR
   GRAND JURIES—Purpose: This measure amends
   Oregon Constitution to provide that a grand jury indictment is not necessary for a felony prosecution if a person
   has been charged and a magistrate finds at a preliminary
414                                                  State v. Haji

   hearing that there is probable cause to believe that the person in fact committed a felony. The amendment does not
   eliminate a citizen’s right to jury trial, but only deals with
   the method by which a person is charged with a crime.”
Official Voters’ Pamphlet, General Election, Nov 5, 1974
(1974 Voters’ Pamphlet), 16.
         Voters were told that the proposed amendment gave
the district attorney three charging options in felony cases
and allowed the district attorney to proceed by information
for all misdemeanors. In felony cases, the district attorney
could (1) seek a grand jury indictment, (2) proceed without
an indictment if the person charged with a felony had a preliminary hearing before a magistrate that established that
there was probable cause to believe a felony had been committed, or (3) proceed by information if the person waived
the preliminary hearing. 1974 Voters’ Pamphlet at 13.
The explanation of the amendment stated that the purpose of the restrictions on the district attorney’s charging
options was to “make certain … that some disinterested
judicial officer (the magistrate) has determined that probable cause exists[.]” Id. The same statement assured voters
that the “proposal will substantially streamline the section
but would make no substantive changes other than those
described above.” Id.
         Voters also were presented with arguments for
and against the amendment. The argument in favor stated
that the proposal would “promote efficiency and fairness”
in the criminal justice system by “speed[ing] up the system
where necessary and yet retain[ing] the grand jury for use
in questionable cases and in its traditional role of investigating crime.” Id. at 14. That argument points to the timeconsuming process in Multnomah County of taking nearly
200 cases per month to the grand jury. Id. The argument in
opposition responded that the proposal was a “half-way measure [that] should be rejected to await full reform,” which
it identified as completely abolishing the grand jury. Id. at
15. Nothing in those materials indicates that the continuing distinction between allowing amendments by a district
attorney as to matters of form, but not on matters of substance, was highlighted for, or was of significance to, voters
in 1974.
Cite as 

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         From the explanation of the amendment and arguments both in favor and in opposition to the proposal, voters in 1974 would have understood that the primary goal
of the proposed amendment was to facilitate moving cases
through the criminal justice system, but with appropriate
checks on the district attorney’s charging decisions. Given
the ballot title, which advised voters that the amendment
(1) made a grand jury indictment unnecessary for a felony
prosecution if “a magistrate finds at a preliminary hearing
that there is probable cause to believe that the person in fact
committed a felony” and (2) “deals with the method by which
a person is charged with a crime,” voters were assured that
even with allowing alternatives to the grand jury system of
charging individuals, a neutral party—a magistrate during
a preliminary hearing—ensured protection for individuals
being charged with a crime. Id. at 16.
         That history of the 1908 and 1974 amendments supports the conclusion that voters approved of a neutral party
reviewing the factual basis for charging serious crimes,
instead of vesting all discretion for those charging decisions
in the district attorney. That history is consistent with our
analysis of the text and context of Article VII (Amended),
section 5(6), which indicates that matters essential to show
that a crime has been committed are matters of substance
committed to the grand jury’s review.12
        But defendant focuses on the 1908 history and
urges a different conclusion: In light of pre-1908 caselaw, at
a time when Oregon law required single-count indictments,
the voters in 1908 who authorized a district attorney to file
an amended indictment when it is “defective in form” would
have understood that allegations required to charge more
than one offense in a single indictment were matters of
“substance.”

    12
       The dissent characterizes the purpose of the 1908 amendment in broad
terms: “to protect the role of grand juries in the initiation of criminal prosecutions and to limit the role of district attorneys.” 366 Or at 440 (Duncan, J., dissenting). But couching the purpose of the amendment at that level of generality
moves too far away from what voters were told about the amendment and its
historical context—the preceding legislative changes permitting district attorneys to charge even serious felonies without grand juries—for us to accept the
dissent’s extrapolation from it.
416                                               State v. Haji

         Defendant bases his conclusion on cases from that
era that, he argues, considered a demurrer on the basis of
duplicity—charging multiple crimes—to be an error in substance. See State v. Clark, 

, 

 (1905); State
v. Hinkle, 

, 

 (1898); State of Oregon v. Carr,

 (1876). Building on that reading of Clark, Hinkle,
and Carr, defendant argues that voters in 1908 would not
have viewed a failure to include joinder allegations as a simple defect “in form” as provided in Article VII (Original), section 18. The state responds that those cases are consistent
with the proposition that the Oregon Constitution assigns
to the grand jury the responsibility to find and allege facts
constituting the crime charged but provide no support for
defendant’s argument that the grand jury is charged to find
and allege a statutory ground for joinder of multiple crimes
in one indictment. We agree with the state.
         Two of the cases, Clark and Carr, illustrate the
undisputed proposition that indictments at the time were
required to charge but one crime and were subject to
demurrer for failure to comply with that requirement, but
the decisions do not characterize such a failure as either
a defect in substance or in form. Both involved one-count
indictments. In Clark, the defendants were convicted of larceny after unsuccessfully challenging the indictment on the
ground that more than one crime was charged. 

. This court concluded that the indictment alleged a single crime, because it alleged that the defendants had stolen
horses belonging to two victims at the same time and place.

. In Carr, the defendant successfully challenged
an indictment in the trial court, and the state appealed.
This court held that the indictment, which alleged that
the defendant had committed a gambling crime by various
means (dealing, playing, and carrying on a game of faro for
money), stated only one offense and that the trial court had
erred in sustaining the defendant’s demurrer. Carr, 

. This court reversed and remanded the case to the
trial court. 

.
        Unlike in Clark and Carr, this court in Hinkle concluded that the indictment was defective by charging more
than one crime. 

. But, as in Clark and Carr, the
decision in Hinkle did not address the dichotomy of defects
Cite as 

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in substance and in form in indictments. The court reversed
the judgment of conviction because the indictment charged
two offenses and because the trial court committed reversible error in an evidentiary ruling. Id. at 98. In his opening
brief, defendant draws from the disposition in Hinkle the
conclusion that this court “considered such a defect not a
mere matter of form.” (Emphasis in original.) Without further elaboration from defendant, we understand his contention to be that, because an indictment that is found defective
on the ground of duplicity would lead to a consequential disposition on appeal, reversal of the judgment of conviction,
this court must have viewed the defect as one of substance
rather than form. On at least two fronts, defendant’s position faces difficulties.
         First, there is equivocation. Defendant appears to
equate a defect “in substance” with one that results in a
serious or consequential disposition. That is, a defect in substance is a substantial or significant defect (and, thus, concomitantly, a defect “in form” is one that results in a minor
consequence). In other contexts, one involving ordinary parlance, for example, a problem of substance may be understood as one of substantial or significant import. But that is
not the proper understanding in this context, which involves
the text of a constitutional provision—“defective in form”—
that is a legal term of art. Applying our interpretive precedents, we have already noted that, voters in 1908 would
have understood that an indictment “defective in form” in
Article VII (Original), section 18, refers to one that is defective as to matters that are not essential to show that a crime
has been committed.
        Second, defendant’s suggestion that a multicount
indictment is substantively defective because of the seriousness of such an error also is undercut by the fact that a
defendant could waive an objection to the indictment on the
ground of duplicity by failing to properly raise it.13 In 1908,
the demurrer statute provided that

    13
       Defendant briefly acknowledges that, in 1908, demurring to an indictment
on the ground that it alleged multiple crimes was a waivable objection but asserts
that “[h]olding that an objection has been waived … is much different than relegating the defect to be one of mere form.”
418                                                              State v. Haji

       “[t]he defendant may demur to the indictment when it
    appears upon the face thereof either,—
       “1. That the grand jury by which it was found had no
    legal authority to inquire into the crime charged because
    the same is not triable within the county;
       “2. That it does not substantially conform to the
    requirements of chapter VIII of title XVIII of this code;
       “3. That more than one crime is charged in the
    indictment;
        “4. That the facts stated do not constitute a crime;
       “5. That the indictment contains any matter which, if
    true, would constitute a legal justification or excuse of the
    crime charged, or other legal bar to the action.”
The Codes and Statutes of Oregon, title XVIII, ch IX, § 1357
(Bellinger & Cotton 1901) (emphasis added). The bases for
demurrer under section 1357 were divided into two categories. A defendant could attack an indictment under subsections 1 and 4—the grand jury lacked authority to act or
the facts alleged did not constitute a crime—at any point
during the proceedings. State of Oregon v. Bruce, 

 (1873). But the other bases were waivable: A defendant
could challenge an indictment under subsections 2, 3, and
5—including on the basis that more than one crime was
charged—only through a demurrer, and if he or she failed
to do so, that basis was waived. State v. Jarvis, 

, 

 (1890); Bruce, 

. Thus, a conviction
could withstand appeal, even if the indictment had charged
multiple crimes, if the defendant failed to timely demur on
the ground of duplicity. See, e.g., State v. Lee, 

, 

 (1899).14
    14
       In Lee, the state alleged in the indictment that the defendant had forcibly
engaged in sexual intercourse with the victim and also alleged the elements of
statutory rape, including that the defendant was over 16 years old and the victim
was a child under 16 years old. 33 Or at 507. The defendant failed to demur before
trial and was convicted. Id. at 507, 510. The defendant then appealed his conviction by arguing that the indictment charged only statutory rape, which the state
had failed to prove, and that the allegation of forcible sexual intercourse was
merely a legal conclusion related to the statutory rape offense. Id. at 507-08. The
state argued that the indictment was duplicitous, that the state “had the right
to adopt either theory of the case,” and that it had elected to proceed upon the
common-law, forcible rape charge at trial. Id. at 508. This court concluded that
the indictment had charged both common-law rape and statutory rape. Id. at 510.
Cite as 

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         The dissent uses Clark and Carr for a different purpose. The dissent contends that those cases illustrate that,
in 1908, an indictment had to include factual allegations
demonstrating the proper connection between the defendant’s multiple acts so that those acts could be joined in a
single indictment. See 366 Or at 445, 446 (Duncan, J., dissenting). The dissent further concludes that the voters in
1908 would have viewed a failure to include an allegation
of the statutory basis for joinder as a defect in substance
rather than “in form,” because case law indicated that the
grand jury was responsible for determining the number of
acts that could be charged in a single indictment. 366 Or at
447 (Duncan, J., dissenting).
         The dissent correctly points out that, in those cases,
this court looked to the indictment for the acts the defendant
was accused of committing. But the court’s examination in
those cases illustrates that whether multiple crimes were
alleged and joined in an indictment—lawfully or unlawfully—
was a question of law. The legal question depended in part
on the historical facts as alleged in the grand jury’s indictment, but this court was evaluating whether the allegations
should be understood to charge more than one crime as a
legal matter. Although the grand jury found probable cause
as to historical facts, it is difficult to move from that to the
conclusion that a voter in 1908 would have understood that
the grand jury had to allege the statutory or legal basis for
joining multiple counts in one indictment, when such joinder
was prohibited at the time.15
                          III.   CONCLUSION
        In sum, considering the text, context, and historical analysis together, we reject defendant’s contention that
the omission of statutory bases for joinder of multiple crimes

Implicitly accepting the state’s argument, the court also held that, because the
defendant had waived a duplicity objection, the allegations supporting statutory rape—the ages of the defendant and the victim—could be stricken from the
indictment “as surplusage, without affecting the conviction.” Id. Given the sufficiency of the evidence of common-law rape, this court affirmed the judgment.
Id. at 512.
     15
        Twenty-five years later, in 1933, the legislature passed House Bill 277,
which allowed for multicount indictments when several charges arose from the
same act or transaction. Or Laws 1933, ch 40, § 1.
420                                               State v. Haji

categorically requires the district attorney to resubmit the
case to a grand jury. In this case, the district attorney added
only statutory bases for joinder of multiple crimes, which
were consistent with the allegations of facts in the original
indictment, not additional historical facts essential to show
that a crime had been committed. Accordingly, the defect in
the indictment was one of form, and the trial court correctly
permitted the district attorney to amend the indictment. We
also affirm the decision of the Court of Appeals, albeit based
on different reasoning.
        The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
        DUNCAN, J., dissenting.
          At the outset it is important to identify the points
on which the majority and the dissent agree. First, we agree
that the grand jury plays an important protective role in
criminal cases. Second, we agree that the grand jury is
responsible for making all findings of historical fact regarding the conduct upon which a charge is based. That is, the
grand jury is responsible for determining, among other
things, what act or omission the defendant committed that
justifies each charge in an indictment. Third, and relatedly,
we agree that the district attorney cannot amend an indictment to add any allegations of historical fact.
         In this case, the grand jury indicted defendant for
multiple crimes but did not allege any bases for joining the
charges. Over defendant’s objection, the trial court granted
the district attorney’s motion to amend the indictment to
include joinder allegations. The majority affirms the trial
court’s ruling because, in its view, the amendment did not
add any allegations of historical fact to the indictment. I disagree because I conclude that the joinder allegations added
by the district attorney are allegations of historical fact.
I write separately to explain why, if a grand jury charges
a defendant with multiple crimes in a single indictment,
it must find and allege facts that justify the joinder of the
charges, and, if it does not, the indictment is defective in
substance and cannot be corrected by an amendment by the
district attorney.
Cite as 

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         As I will explain, this case presents a constitutional
question. Article VII (Amended), section 5(6), of the Oregon
Constitution provides that a district attorney may amend
an indictment only to correct a defect “in form.” A district
attorney may not amend an indictment to correct a defect in
substance. State v. Moyer, 

, 

 (1915).
When determining whether an indictment was defective in
substance when it was issued, this court considers whether
the indictment was sufficient to serve its constitutional
purposes. State v. Wimber, 

, 

(1992); State v. Pachmayr, 

, 

(2008). One of the constitutional purposes of an indictment
is to ensure that the defendant is tried based on the facts
found by the grand jury. Moyer, 

; Pachmayr,

. Another is to provide the defendant with
notice of the nature and character of the crime charged with
sufficient particularity so that the defendant can prepare
and present an informed response. Wimber, 

;
Pachmayr, 

. In this case, the indictment, as
issued by the grand jury, was not sufficient to serve either of
those purposes.

         Because the indictment did not allege the basis
for joinder, it was unclear whether the charges were based
on the same act, different acts during a single incident, or
different acts during multiple incidents. Simply put, it was
unclear what acts the grand jury had based the charges on.
As a result, the indictment was too ambiguous to ensure
that the act that the grand jury had relied on when authorizing each charge would be the same act that the district
attorney would rely on when seeking a conviction on that
charge. It also was too ambiguous to provide defendant with
adequate notice of what acts he was being prosecuted for
committing.

         That the indictment was too ambiguous to serve its
constitutional purposes is illustrated by the fact that even
the district attorney could not tell what acts the grand jury
had based the charges on. Before trial, the district attorney
asserted that the charges were based on acts committed during
two incidents, but at trial he asserted that they were based on
acts committed during a single incident. The district attorney’s
422                                                State v. Haji

changing positions show that, as a result of the failure to allege
the basis for joinder, the indictment was too ambiguous to bind
the state to the facts found by the grand jury and too ambiguous to provide adequate notice to defendant.
         The ambiguity was a substantive defect and, as
such, it could not be fixed by a district attorney’s amendment. That conclusion makes sense because allowing the
district attorney to determine, for example, whether two
charges were based on the same act or different acts would
put the district attorney in the position of determining which
act or acts the charges were based on, thereby supplanting
the grand jury’s fact findings about the acts underlying the
charges.
         The conclusion that the grand jury must find and
allege facts sufficient to support the joinder of charges is
also supported by the legislative history of Article VII
(Amended), section 5(6). The constitutional limit on a district attorney’s authority to amend an indictment, which is
now in Article VII (Amended), section 5(6), dates back to
1908 and was intended to protect the role of the grand jury.
Consequently, it is helpful to understand what the grand
jury’s role was at that time. On that point, the then-existing
statutes and case law are instructive. They establish that,
contrary to the state’s argument in this case, the grand jury’s
role was not limited to finding facts relating to the elements
of the charged crime. Of importance to this case, the grand
jury’s role included finding facts relating to the number of
crimes that could be charged in a single indictment. Again,
that makes sense. Whether charges can be joined depends
on the relationship between the acts on which the charges
are based. Because the grand jury is the entity that determines what acts a defendant committed, the grand jury is
in the best position—and perhaps the exclusive position—to
determine whether the acts underlying multiple charges are
related in a way that justifies joinder.
                          I.   FACTS
        In order to understand the effects of the failure to
allege the basis for joinder in this case, it is necessary to
describe the procedural history of the case in some detail.
As mentioned, a grand jury indicted defendant for multiple
Cite as 

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crimes. The indictment is the only record of the grand jury’s
factual findings. Grand juries meet in private, ORS 132.310,
and, although a district attorney can be present for the presentation of evidence to a grand jury, no one, not even a district attorney, can be present for a grand jury’s deliberations
and voting, ORS 132.090(4).
         The indictment charged defendant with seven counts:
two counts of first-degree robbery (one with a deadly weapon,
Count 1, and one with a dangerous weapon, Count 2);
two counts of unlawful use of a weapon (one with a knife,
Count 3, and one with a gun, Count 4); two counts of first-degree burglary (one with the intent to commit theft, Count 5,
and one with the intent to commit menacing, Count 6);
and one count of felon in possession of a firearm (Count 7).
Each count alleged the same crime commission date. The
robbery counts specified the same victim, RM, and the burglary counts specified the same apartment address. It was
not clear from the indictment whether the seven counts
were based on a single incident or separate incidents. If the
counts were based on separate incidents, it was not clear
which counts were based on which incident. In addition, for
two of the pairs of counts (the robbery pair and the burglary
pair) it was not clear whether each count in the pair was
based on the same act or separate acts.
        As a general rule, an indictment “must charge but
one offense, and in one form only.” ORS 132.560(1). But,
there are exceptions to that general rule. An indictment
may charge more than one offense if the offenses are “[o]f
the same or similar character,” “[b]ased on the same act
or transaction,” or “[b]ased on two or more acts or transactions connected together or constituting parts of a common
scheme or plan.” ORS 132.560(1)(b)(A) - (C).
        After the grand jury issued the indictment in this
case, the Court of Appeals decided State v. Poston, 

, 

 (2016), adh’d to on recons,

, 

, rev den, 

 (2017),
in which it held that, if an indictment charges a defendant
with multiple crimes, it must allege the basis for joining the
charges. Because the indictment in this case did not comply
with that requirement, the district attorney filed a motion
424                                                 State v. Haji

to amend the indictment to include bases for joining the
charges.
         As mentioned, under Article VII (Amended), section
5(6), a district attorney may amend an indictment only to
correct a defect “in form.” Pachmayr, 

. A district
attorney may not amend an indictment to correct a defect
“in substance.” Moyer, 

 (holding that amendments as to matters “of substance” are “unauthorized”).
        In his motion to amend, the district attorney
asserted that the failure to allege the basis for joining the
charges was a defect in form. He proposed that the indictment be amended to add the following paragraph to each
count:
       “This count constitutes part of a common scheme or
   plan based on two or more acts or transactions with the
   other counts of this indictment. This count is of the same or
   similar character as the conduct alleged in the other counts
   of this indictment. This count is connected together by two
   or more acts or transactions with the other counts of this
   indictment.”
Thus, the district attorney sought to amend the indictment
to allege two of the three statutory bases for joinder for
each count. Specifically, he sought to amend the indictment
to allege that the counts were “based on two or more acts
or transactions” that were “connected together” and “part
of a common scheme or plan,” ORS 132.560(1)(b)(C), and
that they were “of the same and similar character,” ORS
132.560(1)(b)(A). The proposed amendment did not allege
that the counts were “based on the same act or transaction.”
ORS 132.560(1)(b)(B).
         The district attorney argued that the amendment
was not substantive because it did not “alter the elements
of the charged crimes.” He asserted that, “for purposes of
Article VII (Amended), section 5, any part of the indictment
other than an element of a charged crime is non-substantive.”
         Defendant objected to the proposed amendment,
arguing that the failure to allege the basis for joinder was
a defect in substance. He also argued that allowing the
amendment would prejudice him because, among other
things, it would affect what evidence the state could offer
Cite as 

 (2020)                                      425

against him. As an example, he pointed out that it would
enable the state to offer evidence to support the allegation
in the proposed amendment that the crimes were part of a
common scheme or plan.
        The trial court held a hearing on the state’s motion,
during which the district attorney stated that the crimes
charged in the indictment were based on two incidents that
occurred on the same day, one in which defendant entered
an apartment with a gun and took a tablet computer and a
later one in which defendant entered the same apartment
and took a knife:
      “Your Honor, we have a series of acts that occurred on
   a single day. [Defendant] came to a particular residence
   where our victim used to live with an acquaintance of
   [defendant’s] who had just moved out.
       “He had a firearm with him and there was some discussion at the door with the victim about letting him come
   in, letting [defendant] come into the apartment. The victim
   ultimately was unable to keep [defendant] out.
      “Upon entry into the apartment … [defendant] showed
   the victim that he had a loaded firearm and took several
   things from the apartment, to include a tablet computer or
   an iPad-type of device from one of the bedrooms.
      “He then wound up leaving. Then later in the afternoon
   came back and again was seen by the victim. He came back
   into the apartment. On that second return, he took a knife
   out of the kitchen, I recall. So there’s a second incident
   there.
      “…
       “We have two acts or transactions that occur throughout the course of the day. And I would argue that there’s
   sort of a common scheme or plan throughout the course of
   this to not only show up at the apartment, but to do so with a
   firearm, to take the property, and then to come back and do
   so again.”
(Emphases added.)
         Defendant argued against the amendment, asserting that the grand jury had to find the facts to justify joinder of the charges.
426                                                           State v. Haji

        Observing that one consideration relevant to whether
an amendment is substantive is whether it affects the evidence that may be admitted at trial, the trial court asked
defendant whether, if some counts were tried separately
from others, the evidence would be the same in each trial.
Defendant answered that, in a trial based on one incident,
evidence of the other incident would not necessarily be
admissible.
         At the close of the hearing, the trial court granted
defendant leave to file a demurrer and asked the state to file
a “factual summary.” The parties submitted those filings.
The state’s factual summary was a written statement by the
district attorney. It was similar to the oral statement that
the district attorney had made to the court during the motion
hearing in that it reported that defendant had entered RM’s
apartment twice, the first time around 9:30 a.m. and the
second time around 4:00 p.m. But it differed from the oral
statement in that it did not mention a knife at all. Instead,
it reported that defendant had pulled out a gun in front of
RM during the second incident.1
         After receiving the parties’ post-hearing filings,
the trial court issued an order granting the state’s motion
to amend and, thereby, implicitly disallowed defendant’s
demurrer. The case proceeded to a jury trial in front of a
different judge than the one who had heard and ruled on the
motion to amend.
         At trial, the state changed its position regarding
when the crimes occurred. Instead of asserting that the
crimes occurred during two different incidents, as it had
before trial, it asserted that all the crimes occurred during
one incident. In keeping with that position, RM testified

    1
      In the factual summary, the district attorney stated that a police officer
had spoken to RM on the date at issue. RM told the officer that defendant had
come to his apartment around 9:30 a.m. and RM had let him in. RM then called
his roommate, YR, who said that she wanted defendant to leave. RM asked defendant to leave, but defendant refused. Defendant pulled out a gun in front of RM
and told RM that he would kill him. Defendant went into YR’s room and took a
tablet computer. RM demanded the tablet back, but defendant denied having it
and left. Later that day, around 4:00 p.m., RM came home to find defendant in
the apartment. Defendant again pulled out a gun in front of RM but left when RM
called 9-1-1.
Cite as 

 (2020)                                                       427

that, on the morning of the day at issue, defendant pushed
his way into the apartment, threatened him with a gun, and
took property, including a knife, which he used to threaten
RM before leaving the apartment.2
         Although the state’s trial position was that defendant had committed all the charged crimes during his first
entry into the apartment, the state presented evidence about
defendant’s second entry, including that defendant refused
to leave the apartment that afternoon until RM threatened
to call the police.
        The jury did not accept all of RM’s testimony. It
found defendant not guilty of both counts of first-degree robbery (one with a deadly weapon, Count 1, and one with a
dangerous weapon, Count 2), one count of unlawful use of
a weapon (a knife, Count 3), and one count of first-degree
burglary (with the intent to commit theft, Count 5). It found
him guilty of one count each of unlawful use of a weapon (a
gun, Count 4), first-degree burglary (with the intent to commit menacing, Count 6), and felon in possession of a firearm
(Count 7).
         Defendant appealed, arguing that the trial court
had erred in allowing the state to amend the indictment.
The Court of Appeals affirmed. It did so before this court
decided State v. Warren, 

, 

(2018), in which we held, as the Court of Appeals had in
Poston, that an indictment must allege the basis for joinder. In Warren, we explained that, “for more than one hundred years, Oregon law has limited the number of offenses
that can be charged in a single charging instrument and
has required that charging instruments allege facts sufficient to demonstrate compliance with those limits.” 

 (emphasis added). Notably, we described the required
allegations as factual allegations. The issue in this case is
whether the failure to allege those facts in this case was a
defect in form, which could be corrected by the district attorney. For the reasons that follow, I conclude that it was not.
    2
      In its description of the case, the majority describes the state’s trial theory.
But that was not the state’s only theory, and it was not the theory it presented to
the trial court when arguing in support of its motion to amend the indictment,
which was that defendant committed the crimes during two incidents.
428                                              State v. Haji

                       II. ANALYSIS
         I base my conclusion on two analyses: (1) an analysis
of this court’s cases involving the constitutional limitation
on a district attorney’s authority to amend an indictment
and (2) a historical analysis of the limitation. I begin with
the case law.
A.    Case Law Analysis
         This court has previously interpreted the constitutional limitation on a district attorney’s authority to
amend a grand jury indictment, and its cases doing so—
including Moyer, Wimber, and Pachmayr—are instructive.
As explained below, they establish that, when the state proceeds against a defendant on an indictment, it is the grand
jury’s role to determine the facts underlying the charges.
Relatedly, they also establish that a defendant has a right
to be tried based on the facts found by the grand jury. A district attorney cannot amend an indictment based on what
the district attorney thinks the grand jury found or would
have found.
         Moyer makes that clear. In Moyer, a grand jury
indicted the defendant for arson, which, as relevant here,
was defined by statute as the willful and malicious burning of the property of another. The indictment alleged that
the defendant “did … wrongfully, unlawfully, feloniously,
willfully and maliciously … set fire to and burn a stable,
to wit, the Jordan Valley Livery Stable.” 

. The
defendant demurred to the indictment, asserting that it was
insufficient because it did not allege that the stable was the
property of another. The trial court agreed and sustained
the demurrer. But the court allowed the district attorney to
amend the indictment to allege that the stable was the property of another. The defendant was convicted and appealed.
On appeal, this court held that the amendment violated
the constitutional limitation on amendments by a district
attorney. 

. It stated that a defendant “is entitled
to be tried upon an indictment found by a grand jury who
act under oath,” 

, and that a district attorney “cannot amend [an indictment] as to charge the crime which it
is supposed [the grand jury] intended,” 

 (internal
quotation marks omitted). As the facts of Moyer illustrate,
Cite as 

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that is true regardless of how likely it is that the grand jury
found, or would have found, the fact at issue.
         In its subsequent cases involving amendments to
indictments, this court has continued to focus on whether
the indictment, as issued by the grand jury, reflected that
the grand jury found the facts upon which the defendant
was tried. In Wimber, this court held that an amendment
was permissible because, among other things, it did not
“alter the availability … of defenses or evidence, or add
new or different theory, element, or crime.” 

.
“To the contrary, the indictment returned by the grand jury
was narrowed.” 

.
         Similarly, in Pachmayr, this court approved an
amendment that deleted surplusage from an indictment.

. This court explained that it was not making
assumptions “about what the grand jury ‘actually’ intended
to charge[.]” 

 Instead, it was relying on the original
indictment, which, it concluded, “contained the allegations
necessary to charge” the defendant with the crime for which
he was tried. 

 Accordingly, this court stated that it was
“satisfied that … the grand jury, not the prosecutor, determined the charge to be brought and found the facts on which
the charge was based.” Id.; see also State v. Long, 

, 

 (1994) (holding that a trial court’s
correction of a typographical error did not enable the state
to try the defendant on facts other than those found by the
grand jury).
        Moyer, Wimber, and Pachmayr show that, when
determining whether an indictment was defective in form,
this court has focused on the constitutional purposes of an
indictment, one of which is to ensure that a defendant is
tried based on the facts found by the grand jury. Moyer, 

; Pachmayr, 

. If an indictment fails to
serve that purpose, it is defective in substance. Moyer, 

.
         Another constitutional purpose of an indictment
is to provide notice of the crime charged. Wimber, 

; Pachmayr, 

. As this court stated in
Wimber, an indictment must inform the defendant “ ‘of the
nature and character of the criminal offense with which
430                                                State v. Haji

he is charged with sufficient particularity to enable him to
make his defense[.]’ ” 

 (quoting State v. Smith,

, 

 (1948)); 

-10
(citing Smith, 

, for the proposition that, when
a statute describes an offense in generic terms, a statement of particular circumstances may be necessary). If an
indictment does not provide such notice, it is defective in
substance.
          In Wimber, when determining whether an amendment to an indictment was permissible, this court asked
itself three questions:
      “(1) Did the amendment alter the essential nature of
   the indictment against defendant, alter the availability to
   him of defenses or evidence, or add a theory, element, or
   crime? …
      “(2) Did the amendment prejudice defendant’s right to
   notice of the charges against him and to protection against
   double jeopardy? …
      “(3) Was the amendment itself sufficiently definite and
   certain?”

. Thus, Wimber reflects that a grand jury
indictment binds the state; a district attorney may not
amend an indictment in a way that alters the available evidence or defenses or adds a theory, element, or crime. It also
reflects that an indictment must provide notice of the nature
and character of the crime charged so that the defendant is
not prejudiced in his ability to make a defense or his ability
to protect against double jeopardy. Finally, it reflects that,
if an amendment is made, it must be sufficiently definite
and certain, so that it does not prevent the indictment from
binding the state or providing adequate notice.
         In Wimber, this court answered the three questions
and held that the amendment, which shortened the time
period alleged, was permissible. As mentioned, this court
concluded that the amendment did not enable the state to try
the defendant on facts other than those found by the grand
jury, noting that the amendment did not alter the availability of defenses or evidence or add a new or different theory,
element, or crime. 

. This court also concluded that
Cite as 

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the amendment did not prejudice the defendant’s right to
notice of the nature and character of the charges against
him or his right to protection against double jeopardy. Id. at
115. And, finally, this court concluded that the amendment
was sufficiently definite and certain. Id.
         This court followed Moyer and Wimber in Pachmayr,
its most recent case involving the amendment of an indictment. This court again focused on whether the indictment,
as issued by the grand jury, was sufficient to serve its constitutional purposes. Applying the first two questions that it
had set out in Wimber, this court concluded that the amendment was permissible because it did not alter or add to the
facts found by the grand jury, 

, and because it
did not prejudice the defendant’s right to notice of the allegations against him, 

. (In Pachmayr, this court did
not need to apply the third question, regarding whether the
amendment was sufficiently definite and certain, because
the amendment in the case deleted surplusage.)3
         To summarize, Moyer, Wimber, and Pachmayr show
that, when determining whether an indictment is defective in substance, this court considers whether the indictment is sufficient to serve its constitutional purposes, which
include ensuring that the defendant is tried based on the
facts found by the grand jury and providing adequate notice
to the defendant. If an indictment is not sufficient to serve

     3
       In Pachmayr, the defendant drove a car across a highway median and into
another car, injuring three other persons, and a grand jury indicted defendant for
three counts of second-degree assault. Two of the counts alleged that the defendant had caused the injuries using a “dangerous weapon,” but one of them alleged
that he had caused the injuries using a “deadly weapon.” All the counts identified
the weapon as “an automobile.” At trial, after the state’s case-in-chief, the defendant moved for a judgment of acquittal on the count that alleged that he had
caused the injuries with a “deadly weapon,” arguing that a car is not a “deadly
weapon” as defined by the applicable statute. The state acknowledged that a car
is not a “deadly weapon” and moved to amend the indictment to replace “deadly
weapon” with “dangerous weapon.” The trial court allowed the amendment and,
on review, this court affirmed, reasoning that, “although the original indictment
did not use the phrase ‘dangerous weapon,’ it contained all of the allegations that
were necessary to make out a charge under that theory: that defendant drove a
car, and did so under circumstances that made it capable of causing death or serious physical injury.” 

. For support, the court cited cases holding that
surplusage does not render an indictment insufficient. 

 at 493 (citing State v.
Humphreys, 

, 

 (1902), and State v. Horne, 

, 

 (1891)).
432                                              State v. Haji

its constitutional purposes, then it is defective in substance
and the defect cannot be cured by an amendment. Relatedly,
a district attorney cannot make a substantive amendment,
which includes an amendment that alters the available evidence or adds a new theory.
         Applying Moyer, Wimber, and Pachmayr to this case
leads to the conclusion that, as issued by the grand jury, the
indictment against defendant was defective in substance.
As described above, the indictment charged defendant with
multiple crimes, but did not allege the basis for joining the
charges in a single indictment. Because of that omission,
the indictment was ambiguous. It was not clear whether the
charges were based on a single act, different acts in a single incident, or different acts in separate incidents. Because
of that ambiguity, the indictment was insufficient to serve
its constitutional purposes; it failed to ensure that defendant was tried upon the facts found by the grand jury, and it
failed to provide adequate notice to defendant of the charges
against him. The burglary counts illustrate the problem.
          The indictment charged defendant with two counts
of first-degree burglary. Both counts alleged that defendant
entered and remained unlawfully in an apartment with the
intent to commit a crime. One count alleged that defendant
intended to commit theft, Count 5, and the other alleged
that defendant intended to commit menacing, Count 6. The
indictment did not indicate whether the charges were based
on the same act or separate acts. As a result, it was not clear
whether the grand jury had found that defendant entered
and remained unlawfully two times, with a different intent
each time, or that defendant entered and remained unlawfully one time, but with two different intents. As mentioned,
even the district attorney could not tell what the grand jury
had found. The state took different positions on the issue
over the course of the trial court proceedings. Before trial,
the state took the position that the charges were based on
two incidents, one in the morning and one in the afternoon.
At trial, however, the state changed its position and asserted
that the charges were based only on the morning incident.
        The state’s changing versions of events throughout
the course of the trial proceedings show that the indictment
Cite as 

 (2020)                                                  433

was defective in substance; it did not provide adequate
notice of the facts on which the grand jury based the charges
and, as a result, it failed to ensure that defendant was tried
based on those facts. Unlike Pachmayr, this is not a case
where this court can be “satisfied that the grand jury …
found the facts” on which the defendant was tried. 

. Indeed, given the multiple versions of events the state
presented throughout the proceedings in the trial court, it
is impossible to draw any reasonable conclusions about what
evidence was presented to the grand jury and what facts it
found.
          In addition, because the indictment was ambiguous, it failed to provide defendant with adequate notice “ ‘of
the nature and character’ ” of the crimes charged “ ‘with sufficient particularity to enable him to make his defense[.]’ ”
Wimber, 

 (quoting Smith, 

).
Here, defendant was left to guess what acts the grand jury
had based the charges on and what theory (or theories) the
state would pursue. See Warren, 

 n 6 (noting
that the failure to allege the basis for joinder can impair a
defendant’s ability to make a defense because it can put the
defendant in the position of having “to guess as to whether
charges are based on the same or separate incidents”). In
addition, because it was not clear what acts the charges
were based on, the indictment did not provide defendant
with the information he was entitled to have in order to protect against the admission of irrelevant or unfairly prejudicial evidence of other acts.4 It also failed to provide him
with the information he was entitled to in order to protect
against improper joinder. Warren, 

 (explaining that allegations of the basis for joining charges is necessary so that the defendant can make “an informed choice
about whether to demur to the indictment on the ground
that the allegations are insufficient to support joinder and,
later, to make an informed decision about whether to move
    4
      A hypothetical illustrates the problem: If a grand jury finds that a defendant committed multiple crimes during a single incident but issues an indictment that fails to allege the basis for joinder, the defendant will not have the
information he needs to prevent the state from proceeding on a theory that the
crimes were committed in multiple incidents, as the district attorney did in this
case when he amended the indictment, which created a basis for the admission of
evidence of both incidents.
434                                                                 State v. Haji

to sever on the ground that the evidence is insufficient to
support joinder”).
         Looking at the amendment itself also leads to the
conclusion that the amendment was impermissible. The
amendment added allegations to the indictment about the
relationship between the charged crimes. It alleged, among
other things, that the counts were based on two or more
acts or transactions. As such, the amendment introduced a
theory—specifically, that defendant had committed the
crimes during two different incidents—which the indictment did not reflect and which, given the varying versions
of events, may not have been the theory on which the grand
jury based the charges.5 The amendment was significant
because it provided a basis for the state to introduce evidence of both incidents. In doing so, it reduced the defendant’s ability to exclude potentially prejudicial evidence.
         Finally, looking to general propositions regarding
the differences between matters of substance and matters
of form also leads to the conclusion that the indictment’s
failure to allege the basis for joinder of the charges was not
a mere defect in form. In Moyer, this court stated that a matter that must be “proved as alleged” is a matter of substance.
     5
       The majority asserts that the joinder allegations added by the district
attorney did not add any “factual allegations about the crimes.” 366 Or at 386.
I disagree. Joinder allegations are factual allegations about the charged crimes.
In order for the grand jury to issue an indictment that charges two offenses, the
conduct underlying each charge must be related in a way that justifies joinder.
How the conduct is related (if at all) is a factual question. Is the first charge based
on the very same act as the second one or were there two separate acts? If there
were two separate acts, were they related by a common scheme or plan? Those are
factual questions. When alleged in an indictment, the answers to those questions
are allegations of historical fact about the charged crimes.
     Even more importantly, when, as here, it is not clear from the indictment
whether two charges were based on the same act or different acts and the district
attorney amends the indictment to allege that they are based on different acts,
the district attorney is selecting which acts the charges are based on. In Moyer,
this court held that a district attorney could not amend an indictment to add a
factual allegation regarding an element, so a district attorney should not be able
to amend an indictment in a way that can add a criminal act.
     The majority refers to the joinder allegations as “allegations specifying the
statutory basis for joinder.” E.g.¸ 366 Or at 386, 399, 411, 419 (emphasis added).
The permissible bases for joinder are specified by statute, but that does not mean
that an allegation of a basis for joinder is not an allegation of historical fact.
Elements of a crime are specified by statute, and allegations of elements are allegations of historical fact.
Cite as 

 (2020)                                   435

 (citing 22 Cyclopedia of Law and Procedure
439 (William Mack ed 1906)). The basis for joinder is such a
matter. If the state joins two or more charges, it must prove
the basis for joinder in order to obtain convictions on both
charges. If the state does not present such evidence, the state
can proceed on only one of the charges. State v. Fitzgerald,

, 

 (1973) (holding that, where
the state failed to prove at trial that the two charged crimes
were part of the same transaction as alleged, the trial court
erred in denying defendant’s motion to have the state elect
between the two crimes). Thus, the basis for joinder is a matter that must “be proved as alleged.” Moyer, 

.
For that additional reason, it is a matter of substance.
         To summarize, I conclude that, under this court’s
case law, the indictment’s failure to allege the basis for joinder in this case was not a mere defect in form for three independent reasons. First, as a result of the failure to allege the
basis for joinder, the indictment was too ambiguous to serve
its constitutional purposes. It was not sufficient to ensure
that defendant would be tried for the acts that the grand
jury relied on when it approved the prosecution, and it was
not sufficient to provide defendant with the notice to which
he was entitled to prepare and present his case. Second,
the amendment itself was impermissible because it added
a theory and altered the evidence that could be admitted.
Third, the failure to allege the basis for joinder was a substantive defect because the bases for joinder must be proved
as alleged.
          Concluding that the grand jury must find and allege
facts that justify the joinder of charges makes practical
sense. Whether charges can be joined depends on the relationship between the acts on which the charges are based.
Because the grand jury is the entity that determines what
acts a defendant engaged in, it is in the best position—and
perhaps the exclusive position—to determine whether the
acts underlying multiple charges are related in a way that
justifies joinder. This case illustrates that point. The district
attorney could not tell what acts the charges were based on
and, therefore, he was not in a position to make allegations
about how the acts were related. When the district attorney amended the indictment, he did so based on his own
436                                                               State v. Haji

beliefs about what acts defendant had committed (beliefs
that changed over the course of the case). In doing so, he
supplanted the grand jury’s findings regarding the defendant’s acts with his own. That was impermissible.6
         In concluding that the indictment’s failure to allege
the basis for joinder was a defect in form, the majority relies
on language in Moyer. 366 Or at 405. But Moyer states that
“any omission” that prevents an indictment from “showing
what offense [it] is intended to charge is a defect in matter
of substance which cannot be cured by amendment,” 

 (internal quotation marks omitted), and, here, the
ambiguity resulting from the failure to allege the basis
for joinder was such an omission because it prevented the
indictment from showing what acts the charges were based
on. In addition, Moyer states that “the power of amendment extends to formal matters which are not essential to
the charge and mere clerical errors, etc., where the defendant cannot be misled or prejudiced,” 

 (internal quotation
marks omitted), but here, the amendment was prejudicial
because it introduced a new theory, which may not have
been the theory relied on by the grand jury.
B.    Historical Analysis
         An examination of intent underlying the constitutional limitation on a district attorney’s authority to amend
an indictment also leads to the conclusion that the grand
jury must find and allege facts sufficient to justify the joinder of charges. Currently, that limitation is in Article VII
(Amended), section 5(6), which provides:
         “An information shall be substantially in the form provided by law for an indictment. The district attorney may
     file an amended indictment or information whenever, by ruling of the court, an indictment or information is held to be
     defective in form.”

     6
       I note that, if the district attorney did not want to resubmit the case to the
grand jury to make and allege the findings necessary to join the charges, the district attorney could have proceeded by filing a district attorney’s information and
submitting the case for a preliminary hearing. During the hearing, the magistrate would serve as a neutral factfinder, responsible for making the fact findings
regarding what acts the defendant committed and how they were related, if at
all.
Cite as 

 (2020)                                  437

(Emphasis added.) As explained below, the limitation was
added to the constitution as part of an amendment in 1908,
and it has remained in the constitution unchanged since
then. The amendment was the result of an initiative petition
approved by the voters. Consequently, when interpreting the
amendment, our goal is to ascertain the intent of voters who
approved it. AAA Oregon/Idaho Auto Source v. Dept. of Rev.,

, 

 (2018) (stating that, when
interpreting the text of a constitutional provision imported
from a previous version of the provision, this court’s task
is to determine the intent underlying the previous version);
Roseburg School Dist. v. City of Roseburg, 

,

 (1993) (“In interpreting a constitutional provision adopted through the initiative process, our task is to
discern the intent of the voters.”). It is their understanding
of the different roles of grand juries and district attorneys
that matters.
    1.   Pre-1908 constitutional and statutory provisions governing grand juries and indictments
         It is useful to begin with a review of the history
of the state constitutional and statutory provisions governing grand juries and indictments. When the Oregon
Constitution was ratified in 1857, it contained a provision,
Article VII (Original), section 18, that stated:
      “The Legislative Assembly shall so provide that the
   most competent of the permanent citizens of the county
   shall be chosen for jurors; and out of the whole number in
   attendance at the court, seven shall be chosen by lot as
   grand jurors, five of whom must concur to find an indictment: But the Legislative Assembly may modify or abolish
   grand juries.”
          In addition to that constitutional provision, the
state had criminal procedure statutes that governed the initiation of criminal prosecutions. The statutes were first codified in 1866 in the Deady Code. Under the codified statutes,
the only way a person could be charged with a crime in a
state district or circuit court was by grand jury indictment.
General Laws of Oregon, Crim Code, ch I, § 5, p 442 (

-1864). In addition, the statutes established requirements for, and limitations on, grand juries and indictments.
438                                                 State v. Haji

Among other things, the statutes established grand juries’
authority and responsibilities. 

 at Crim Code, ch VI,
pp 449-51 (powers and duties of grand jury). They also specified the information that an indictment had to contain and
provided that, if an indictment did not contain that information, a defendant could demur to it, which would result in a
judgment in the defendant’s favor on the indictment, and the
charge could only be brought if a new grand jury indictment
was issued. 

 at Crim Code, ch VII, pp 451-52 (finding and
presentation of the indictment); 

 at Crim Code, ch VIII,
pp 453-57 (required content and form of indictments); 

 at
Crim Code, ch XI, pp 461-63 (demurrers); 

 at Crim Code,
ch X, pp 460-61 (resubmission to grand jury required after
successful demurrer or motion to set aside indictment).
         In 1899, the legislature established an additional
method for charging a person with a crime; it enacted
statutes that provided that a person could be charged by
a district attorney’s information. Or Laws 1899, §§ 1 - 7,
pp 99-100; The Codes and Statutes of Oregon, title XVIII,
ch IV, §§ 1258 - 1264 (Bellinger & Cotton 1901). Thereafter,
district attorney informations were used to charge even the
most serious crimes. See, e.g., State v. Blodgett, 

, 

 (1907) (“The defendant by information of the
district attorney was charged with the crime of murder in
the first degree ….”).
         The use of district attorney informations gave rise
to concerns about potential abuses of power. Motivated by
those concerns, citizens filed an initiative petition to amend
Article VII, section 18, to require grand jury indictments in
all criminal prosecutions. The initiative was submitted to
the voters in the June 1908 general election, and the proposed amendment to Article VII, section 18, was set out in
the Official Voters’ Pamphlet as follows:
      “Section 18. The Legislative Assembly shall so provide that the most competent of the permanent citizens of
   the county shall be chosen for jurors; and out of the whole
   number in attendance at the court, seven shall be chosen
   by lot as grand jurors, five of whom must concur to find
   an indictment. No person shall be charged in any Circuit
   Court with the commission of any crime or misdemeanor
   defined or made punishable by any of the laws of this State,
Cite as 

 (2020)                                     439

   except upon indictment found by a grand jury. Provided,
   however, that any District Attorney may file an amended
   indictment whenever an indictment has, by ruling of the
   court, been held to be defective in form.”
Official Voters’ Pamphlet, General Election, June 1, 1908
(1908 Voters’ Pamphlet), 115 (emphasis in original). As is
apparent from its text, the purpose of the amendment was
to establish, as a constitutional requirement, that no person
could be prosecuted for a violation of the state’s criminal
laws unless a grand jury approved the prosecution through
an indictment.
         The proponents of the amendment believed that the
then-current statutes, which authorized district attorneys
to charge crimes through informations, vested too much
power in a single government official and that the power
could be abused for personal or political reasons. They urged
voters to approve the amendment in order to guarantee
that citizens, as grand jurors, played a gatekeeping role in
the administration of the state’s criminal laws. In the only
Voters’ Pamphlet statement concerning the amendment, the
proponents explained:
       “Under the present law, any district attorney can file
   an information against a man for any crime, from murder
   down. The accused is not entitled of right to any preliminary hearing and the first he knows of the matter may be
   his arrest. He may never be tried at all, the information or
   indictment may be dismissed, and yet his record is blackened. It may be that it is not intended from the start that
   he ever should be tried, but the information is issued to
   serve some political purpose, private revenge or the scheme
   of a ring hostile to the victim. It is un-American. It is too
   much like the despotism of Russia and it is too much power
   to be vested in the hands of any one man. The whole history
   of Anglo-Saxon institutions is a battle against this very
   thing: the power of one man to brand another with crime
   and lodge him in prison. It is a return to the Star Chamber
   decrees of Charles I and the time was when Englishmen
   and Americans thought no time or money thrown away
   which protected every citizen from arbitrary arrest and
   arbitrary arraignment and trial at the will of a single man.
   In England the same jealousy exists today, and no man can
   be brought to trial save on an indictment by a grand jury.
   The fathers of our country were careful to write that into
440                                                              State v. Haji

    the United States Constitution, but it is not yet an article of
    the State Constitution. The time has come when it should
    be there, for the time will inevitably come when wealth and
    great interests will seek to shut the mouth of every man
    who is against them; and if we may judge the future by the
    past, the powerful interests are apt to control the political
    offices, including the district attorney.

        “The only argument urged against this amendment is
    that the present plan is cheaper. If the citizens of Oregon
    prefer a few dollars to a great fundamental principle of
    personal liberty, then they certainly do not deserve their
    liberties and they might as well be left open to the whims,
    vengeance, mistakes or political intrigues of any district
    attorney. The citizens of this country will make a great
    mistake if they let go that part of the administration of the
    law which belongs to them through the grand jury and the
    petty jury, and we repeat that this present arbitrary power
    lodged in one man is un-American and dangerous.”

1908 Voters’ Pamphlet at 116-17. Thus, the clear purpose
of the amendment was to protect the role of grand juries in
the initiation of criminal prosecutions and to limit the role
of district attorneys. The voters approved the amendment.
See Or Laws 1909, p 12 (recording approval). Their approval
reflects their determination that, as a matter of state constitutional law, grand juries were to be responsible for initiating prosecutions and that they were to do so through
indictments.7
        Because the voters who approved the amendment
sought to protect the role of grand juries and to require
indictments, the statutes that governed grand juries and
indictments at the time shed light on what the voters
    7
      In 1910, the voters approved another initiative, which replaced Article
VII (Original), section 18, but did not alter the text at issue in this case, which
became part of Article VII (Amended), section 5(6). See Or Laws 1911, pp 7-8
(recording approval). In 1974, the voters approved a legislative referral, which
amended Article VII (Amended), but that amendment did not alter the text at
issue either. It authorized charging a person with a felony through a preliminary
hearing before a magistrate. SJR 1 (1973) (referring the measure); Or Laws 1975,
p 6 (recording approval). As mentioned, because the text at issue has remained
the same since it was first added to the constitution by the voters in 1908, our
goal is to ascertain the intent of those voters. 366 Or at 436-37 (Duncan, J., dissenting) (citing AAA Oregon/Idaho Auto Source, 

, and Roseburg
School Dist., 

).
Cite as 

 (2020)                                441

would have understood the role of the grand jury to be,
including what determinations the grand jury—as opposed
to the district attorney—was to make. See Pachmayr, 

 (looking to the statutes in effect in 1908 when
determining the meaning of “defective in form” in Article
VII (Amended), section 5(6)). As explained below, the then-existing criminal procedure statutes required grand juries
to make certain factual findings in order to perform their
gatekeeping role; in addition, the statutes required that
the grand juries’ indictments reflect those findings. Those
findings included findings about the defendant’s conduct,
which were relevant to the elements of the charged crime.
But, they were not limited to those findings. They also
included findings about the time and location of the person’s conduct, which were relevant to whether the grand
jury could issue an indictment, given the applicable statute
of limitations and the grand jury’s jurisdiction. And, they
included findings about whether the person’s conduct constituted one crime or more than one crime; if it constituted
more than one crime, the grand jury had to issue separate
indictments for each crime.
          Regarding a person’s conduct, the statutes authorized a grand jury “to inquire of crimes committed or triable
within the county from which [it was] selected.” The Codes
and Statutes of Oregon, title XVIII, ch V, § 1265 (Bellinger
& Cotton 1901). If a grand jury determined what conduct
the person had engaged in, but was unsure whether that
conduct constituted a crime, the grand jury could make a
“presentment of the facts” to the court and ask the court to
instruct it on the law. Id. § 1279. Grand jurors were to issue
an indictment when “all the evidence before them, taken
together, [was] such as in their judgment would, if unexplained or uncontradicted, warrant a conviction by the trial
jury.” Id. § 1284. The indictment had to contain, among other
things, “[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 [was] intended.” Id. § 1303. In addition, in
order for an indictment to be sufficient, “the act or omission
charged as the crime [had to be] clearly and distinctly set
forth.” Id. § 1314.
442                                                State v. Haji

         Regarding the time the crime was committed, the
statutes provided that, although the indictment usually did
not need to allege the precise time the crime was committed,
it did need to allege that the crime was committed within the
applicable statute of limitations. Specifically, section 1309 of
those statutes provided:
      “The precise time at which the crime was committed
   need not be stated in the indictment, but it may be alleged
   to have been committed at any time before the finding
   thereof, and within the time in which an action may be
   commenced therefor, except where time is a material ingredient in the crime.”
The statutes also provided that a grand jury could make
a presentment of facts to the court and request that the
court instruct them on the law, so that they could determine
whether the conduct “had ceased to be punishable by reason
of lapse of time.” Id. § 1279. If a grand jury issued an indictment, the indictment had to reflect that “the crime was committed at some time prior to the finding of the indictment,
and within the time limited by law for the commencement of
an action therefor.” Id. § 1314.
         Regarding the location of the crime, the statutes
provided that a grand jury had authority “to inquire of
crimes committed or triable within the county from which
they [were] selected.” Id. § 1265 (defining jurisdiction of
grand jury); id. § 1277 (providing that grand jury has the
power to “inquire into all crimes committed or triable in
the county”); see also id. § 1271 (requiring grand jurors to
take an oath to inquire into crimes “committed or triable
within this county”). The statutes also provided that, to
be sufficient, an indictment had to reflect that “the crime
was committed within the jurisdiction of the court, except
where, as provided by law, the act, though done without
the county in which the court is held, is triable therein.”
Id. § 1314.
        Finally, the statutes provided that an indictment
could not charge more than one crime. Specifically,
section 1308 stated, “The indictment must charge by one
crime, and in one form only; except that where the crime
may be committed by use of different means the indictment
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may allege the means in the alternative.” Accordingly, the
statutes required that an indictment include “a statement of
the acts constituting the offense,” 

 § 1303, and referred to
“the offense” or “the crime” in the singular, e.g., id. §§ 1309,
1314.
          Together, the statutes governing grand juries and
indictments show that the grand jury was the entity responsible for making findings about what acts a person had committed, when and where the person had committed the acts,
and how the acts were related, specifically, whether the acts
constituted one or more crimes. That the grand jury was
responsible for those findings was consistent with its gatekeeping role because the determinations protected against
improper prosecutions. They protected against prosecutions
that were not supported by sufficient evidence, that were
time-barred, that could not be brought in the county where
the grand jury was seated, and that violated the limit on the
number of charges that could be litigated together.
         In addition, the criminal procedure statutes provided a mechanism through which a defendant could stop
a prosecution if an indictment did not reflect that the
grand jury had made the findings necessary to issue a
proper indictment. That mechanism was a demurrer. Id. at
§§ 1355 - 1365. The grounds for a demurrer were set out in
§ 1357, which provided:
      “The defendant may demur to the indictment when it
   appears upon the face thereof either,—
      “1. That the grand jury by which it was found had not
   legal authority to inquire into the crime charged because
   the same is not triable within the county;
      “2. That it does not substantially conform to the
   requirements of chapter VIII of title XVIII of this code;
      “3. That more than one crime is charged in the
   indictment;
      “4. That the facts stated do not constitute a crime;
      “5. That the indictment contains any matter which, if
   true, would constitute a legal justification or excuse of the
   crime charged, or other legal bar to the action.”
444                                                State v. Haji

Thus, a defendant could demur to an indictment for several
reasons, including that the indictment did not substantially
comply with the statutes governing the form and contents
of an indictment, one of which provided that an indictment
could charge only one crime. If a defendant demurred to an
indictment, the trial court was required to “give judgment,
either allowing or disallowing [the demurrer]” and to enter
an entry in the journal “to that effect.” Id. § 1360. If the court
allowed the demurrer, “the judgment [was] final upon the
indictment,” unless the court determined “that the objection
on which the demurrer [had been] allowed may be avoided in
a new indictment” and directed “the case to be resubmitted
to the same or another grand jury.” Id. § 1361.
        Of particular relevance here, a defendant could
demur to an indictment on the ground that it did not comply
with the statutory limit on the number of charges that could
be brought. Stated differently, a defendant could demur to an
indictment on the ground that it improperly joined charges.
If the defendant was correct, then the trial court had to
allow the demurrer and enter a judgment on the indictment in the defendant’s favor. Then, if the court determined
that the defect could be avoided in a new indictment, the
court could direct that the case be resubmitted to the same
or another grand jury. All of that is significant because it
indicates that the grand jury was the entity responsible for
making the findings relevant to the number of crimes that
could be charged in an indictment. In turn, that indicates
that, in 1908, when the voters amended the constitution
to protect the role of the grand jury and eliminate district
attorney informations, they intended that the grand jury—
not the district attorney—would make such findings. And,
as explained in the following section, the contemporaneous
case law bears that out.
      2. Pre-1908 cases concerning the limit on the number of
         crimes charged
         Cases decided before 1908 show that an indictment
had to reflect that the grand jury had made the determinations necessary to charge the proper number of crimes, which
at the time was one. That requirement was the basis for a
rule, repeated in several cases, that, if a statute defining a
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crime included a disjunctive list of acts that could constitute
the crime, an indictment alleging more than one of those
acts had to list the acts in the conjunctive. State of Oregon v.
Dale, 

 (1880); State of Oregon v. Bergman, 

 (1877); State of Oregon v. Carr, 

 (1876).
As this court stated in Carr, “When the statute makes it
a crime to do this or that, mentioning several things disjunctively, the indictment may, as a general rule, embrace
the whole in a single count, but it must use the conjunctive
‘and’ where ‘or’ occurs in the statute[.]” 6 Or at 134. In other
words, an indictment could allege multiple acts, but only if
the acts were alleged to have been committed as part of a
single crime. Thus, the indictment had to reflect a determination that the acts were related in a way that allowed them
to be joined in a single indictment.
         State v. Clark, 

, 

 (1905), is illustrative. In Clark, a grand jury indicted the defendants for
first-degree theft and the indictment alleged that the defendants stole one horse belonging to one person and two horses
belonging to another person. The defendants demurred to
the indictment on the ground that it charged more than
one offense, in violation of the statutory limit. The trial
court disallowed the demurrer and this court affirmed. It
explained that “the stealing of articles belonging to two or
more persons at the same time and place constitute[d] but
one offense, and may so be charged in an indictment,” 

, provided that the indictment alleged that the articles were taken “at the same time and place,” 

. This
court held that the indictment in the case “sufficiently complie[d] with the rule, by alleging that the articles belonging
to the persons named were, as a matter of fact, stolen at
the same time and place, and by the same act.” 

 (emphasis added). Notably, this court explained that alleging that
the articles were stolen on the same date and in the same
county would not have been sufficient; the indictment had
to allege that the horses had been stolen “at one and the
same time.” 

 Thus, Clark shows that, if an indictment
alleged multiple acts, it had to include an allegation that
the acts were related in a way that justified charging them
in a single indictment; it also shows that that allegation was
an allegation of historical fact. The nature of that allegation
446                                                 State v. Haji

indicates that it was for the grand jury to make; it depended
on the grand jury’s findings about what the defendants had
actually done. See Warren, 

 (stating that, “for
more than one hundred years, Oregon law has limited the
number of offenses that can be charged in a single charging
instrument and has required that charging instruments
allege facts sufficient to demonstrate compliance with those
limits”) (emphasis added).
         State v. Fiester, 

, 

 (1897), also
indicates that whether multiple acts can be charged in a
single indictment is a matter for the grand jury. In Fiester,
the defendant was charged with first-degree murder, and
the indictment alleged that he had committed multiple acts
against the victim. The acts were alleged in the conjunctive. Specifically, the indictment alleged that defendant “did
then and there … kill [the victim], by then and there beating her with his fists, and by choking her, and by pushing
and dragging her into the water, and holding her under the
water, whereby she was drowned.” 

. The defendant demurred to the indictment, and the trial court disallowed the demurrer. On appeal, this court affirmed on the
ground that the grand jury could charge multiple acts in a
single indictment if the grand jury found, based on the evidence before it, that the acts were part of the charged crime;
it explained:
   “[T]he means [by which the murder was committed] being
   known to the grand jury, it was proper to allege them conjunctively, for it may have been that, in consequence of the
   alleged beating and choking of the deceased, the defendant
   was enabled to drag her to and hold her under water, until
   life was extinct; and if such were the case, and the facts
   were known to the grand jury, all these acts constituted the
   means by which the deed was accomplished.”

 (emphasis added). That explanation indicates that
it was the grand jury’s role to determine whether multiple
acts could be charged together and, if so, to allege them in a
manner that reflected that it had made that determination.
       The cases just discussed—which predate the 1908
amendment and, therefore, provide context for the amendment, Coultas v. City of Sutherlin, 

, 871
Cite as 

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 (1994) (examining earlier case law construing initiated constitutional amendment in question)—all concern
whether multiple acts could be alleged in a single indictment. That is because, at the time, the statutory limit on
the number of crimes that could be charged in a single
indictment was one and there were no exceptions to that
limit. Since then, exceptions have been added to allow for
joinder of crimes. In 1933, an exception was added to allow
for the joinder of crimes that were based on “the same act
or transaction.” Or Laws 1933, ch 40, § 1. Then, in 1989,
two more exceptions were added, one for joinder of crimes
that were “[b]ased on two or more acts or transactions connected together or constituting parts of a common scheme
or plan,” and another for crimes that were “[o]f the same or
similar character.” Or Laws 1989, ch 842, § 1. Although the
pre-1908 cases do not address joinder of crimes under those
exceptions, they establish a basic rule—specifically, that a
grand jury must make and allege the findings necessary to
charge the proper number of crimes—that leads to the conclusion that a grand jury must make the findings necessary
to join crimes in a single indictment.

         Given the criminal procedure statutes and the case
law that existed in 1908, the voters, who amended the constitution to protect the grand jury’s role and limit the district
attorney’s role, would have intended that a grand jury—not
a district attorney—make the determinations necessary to
show that crimes were properly joined. Consequently, they
would not have regarded the failure to allege the basis for
joinder as a “defect in form” that a district attorney could fix.
Under the criminal procedure statutes in effect at the time,
if an indictment failed to allege the basis for joining multiple
acts, the indictment was insufficient and a defendant could
demur to it. Dale, 

 (stating that if an indictment
charged a defendant with multiple acts in the disjunctive,
the indictment was “bad”). If the defendant did, the defendant was entitled to a judgment on the indictment. See State
v. Jarvis, 

, 

 (1890) (stating that, if an
indictment is “bad” and “if the objection be taken by demurrer at the proper time, it must prevail”); State v. Hinkle, 

, 

 (1898) (stating that, if a defendant demurred
to an indictment on the ground that it did not comply with
448                                                               State v. Haji

the statutory limit on the number of crimes that could be
charged, “the objection to the pleading [was] not waived by
a plea of not guilty, nor [was] the error cured by a judgment
of conviction”). The fact that a defendant could successfully
demur to an indictment on the ground that it failed to allege
the basis for joining multiple acts further indicates that
the failure was not a “defect in form.” See The Codes and
Statutes of Oregon, title XVIII, ch VIII, § 1315 (Bellinger
& Cotton 1901) (providing that no proceeding or judgment
could be affected by defect in form that did not prejudice a
defendant’s substantial rights). To the contrary, it was a failure related to the required contents of the indictment and,
as such, it was a “defect in substance.”8
         The criminal procedure statutes that existed in
1908 support that view. They indicate that “form” was used
to describe the basic structure of a pleading, that is, how the
required allegations were to be set out. Indeed, the statutes
included a sample “form of indictment” that could be used as
a template, as well as an appendix with additional sample
indictments for charging particular crimes. The Codes and
Statutes of Oregon, title XVIII, ch VIII, § 1304-05 (Bellinger
& Cotton 1901).9 The statutes allowed for some variation in form but did not allow for the omission of required
    8
       In concluding that the failure to allege the basis for joinder is a defect in
form, the majority relies on the fact that a defendant could waive the right to
have the allegation in the indictment. The majority cites cases that hold that, if a
defendant does not demur to an indictment on the ground that it violates the statutory limit on the number of crimes that could be charged, the defendant waives
that objection. 366 Or at 418. Those cases concern preservation. They do not alter
the fact that a defendant has a right to have the allegation in an indictment or
the fact that, if the defendant does demur to the indictment, he or she is entitled
to a judgment on the indictment in his or her favor.
    9
       Dictionaries of the time, including those cited by the majority, are consistent with view of “form.” For example, Abbott’s definition of “form” provides:
    “The shape or structure of a thing, as distinguished from the material of
    which it is composed; mode of arrangement. In law, most frequently an established method or practice; a fixed way of proceeding; a formula. A model of
    an instrument; a pleading or other legal proceeding, containing the essential
    requisites so arranged as to be used in accordance with the laws, is frequently
    termed a form; or, where a legal proceeding is pursued in the manner and
    order required by law, it is said to be in proper form.”
Benjamin Vaughan Abbott, 1 Dictionary of Terms and Phrases Used in American
or English Jurisprudence 516 (1987) (emphasis added). Similarly, Bouvier’s defines
“form,” in part, as, “[t]he model of an instrument or legal proceeding, containing
the substance and the principle terms to be used in accordance with the laws.”
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allegations. Because an allegation of the basis for joinder is
required, Carr, 

; Dale, 

; Warren, 

, the failure to include such an allegation when
charging multiple acts or crimes, is not a defect in form.
                           III.   CONCLUSION
         To summarize, I conclude that allegations of the
basis for joining charges—including those phrased in the
language of the joinder statute—are factual allegations concerning the charged crimes. For example, an allegation that
two charged crimes are based on two transactions constituting parts of a common scheme or plan is an allegation of
historical fact. It depends on the grand jury’s factual findings about the acts underlying each charge and it is itself a
factual finding about the relationship between the acts. As
such, it is within the exclusive fact-finding province of the
grand jury. Consequently, it is not an allegation that can be
added to an indictment by a district attorney.
         Moreover, in this case, the indictment’s failure to
allege facts sufficient to support the joinder of charges is not
a defect in “form” for the purposes of Article VII (Amended),
section 5(6). Whether a defect is a defect in form or a defect
in substance depends on whether, despite the defect, the
indictment is sufficient to serve its constitutional purposes.
Here, as a result of the failure to allege the basis for joining the charges, the indictment was ambiguous. Even the
district attorney could not tell what acts the charges were
based on. Consequently, the indictment failed to ensure that
defendant was tried based on the facts found by the grand
jury and failed to provide defendant with the notice to which
he was entitled in order to respond to the charges.
         Finally, the indictment’s failure to allege the basis
for joinder is not the type of amendment that fits within

John Bouvier, 1 Bouvier’s Law Dictionary 881 (1897). And, one of the definitions
of “form” in Black’s is:
     “A model or skeleton of an instrument to be used in a judicial proceeding,
     containing the principal necessary matters, the proper technical terms or
     phrases, and whatever else is necessary to make it formally correct, arranged
     in proper order, and capable of being adopted to the circumstances of the specific case.”
Black’s Law Dictionary 510 (1st ed 1891).
450                                             State v. Haji

the district attorney’s constitutionally limited authority to
amend an indictment. The constitutional limit, first enacted
in 1908, was intended to protect the role of the grand jury,
which—at the time the limit was imposed—already included
finding and alleging facts sufficient to show that the indictment did not allege more crimes than the law permitted
within a single indictment.
         For those reasons, I would conclude that the trial
court erred in allowing the prosecutor to amend the indictment in this case, and I respectfully dissent from the majority’s opinion concluding otherwise.