Summary
The Supreme Court of Oregon held that an indictment alleging assault with a deadly weapon was defective in form, rather than substance, because the indictment already included the allegations necessary to charge assault with a dangerous weapon. The court concluded that the trial court properly permitted the district attorney to amend the indictment at the close of the state's case-in-chief. The court reversed the Court of Appeals and affirmed the defendant's conviction.
Topics
Practice areas
Questions Presented
- Whether an indictment alleging that an automobile was a deadly weapon was defective in form or substance when the trial evidence established that the automobile was a dangerous weapon under the circumstances of its use.
- Whether Article VII (Amended), section 5(6), of the Oregon Constitution permitted the district attorney to amend Count 2 at the close of the State's case-in-chief.
- Whether the amendment altered the essential nature of the charge or prejudiced defendant's notice, defense, or protection against double jeopardy.
- Whether State v. Russell, 231 Or. 317, 372 P.2d 770 (1962), remained controlling.
Holdings
- The indictment's use of the term "deadly weapon" instead of "dangerous weapon" was a defect in form only because the original indictment already alleged facts sufficient to charge assault with a dangerous weapon.
- The amendment did not prejudice defendant because the original Count 2 informed him of the factual allegations necessary to defend against assault with a dangerous weapon and did not eliminate an independent defense.
- The amendment did not violate the constitutional grand-jury requirement because the grand jury had already determined the factual charge, and the district attorney corrected only a formal defect.
- State v. Russell, 231 Or. 317, 372 P.2d 770 (1962), was overruled because its treatment of an unnecessary allegation as material was inconsistent with the principle that surplusage does not make an indictment insufficient.
Key quotations
“Therefore, the constitution 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.” (344 Or. at 486)
“Because the original indictment alleged that defendant used the car under circumstances that rendered it capable of causing injury, it already charged the crime of assault with a dangerous weapon.” (344 Or. at 489)
“The defect in the indictment was a defect in form only, and the trial court did not err by allowing the district attorney to amend it.” (344 Or. at 491)
Factual background
Pachmayr drove a car over a highway median and into another car, injuring the two occupants of that car and a passenger in his own vehicle. The grand jury charged him with three counts of second-degree assault, alleging that the automobile was a dangerous weapon in Counts 1 and 3 and a deadly weapon in Count 2. At trial, the State presented evidence that Pachmayr drove recklessly and caused physical injury, but conceded that it had not shown that the automobile was specifically designed to cause serious injury.
Procedural history
A jury convicted Pachmayr of three counts of second-degree assault arising from a vehicle collision. The trial court permitted the State to amend Count 2 from alleging use of a deadly weapon to alleging use of a dangerous weapon. The Court of Appeals held that the amendment was substantive and reversed; the Oregon Supreme Court allowed review, reversed the Court of Appeals, and affirmed the circuit court judgment.