reversing defendant’s conviction because trial court failed to require an election where it was “entirely possible that some of the jurors may have found the defendant guilty of one of the prohibited acts, while others relied upon some other and different alleged act”
How later courts described this case
- reversing defendant’s conviction because trial court failed to require an election where it was “entirely possible that some of the jurors may have found the defendant guilty of one of the prohibited acts, while others relied upon some other and different alleged act”
- prosecutor’s statement in rebuttal was too late to qualify as an election
Written by the judges who cited it.
Distinguished
Distinguished by State v. Cruse, 231 Or. 326 (1962)
174 Or 487, 149 P2d 765 (1944), but these cases are clearly distinguishable and contain nothing helpful to the defendant in this case.
The opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 489
Leland Stanford Ewing was convicted of sustaining osculatory relations with the private parts of a male person, and appeals.
REVERSED.
The defendant was tried, found guilty, and sentenced upon an indictment, the charging part of which is as follows:
"`The said Leland Stanford Ewing on the 15th day of September, A.D., 1941 in the said County of Grant and State of Oregon, then and there being, did then and there unlawfully and feloniously and against the order of nature, have a certain venereal affair with a human being, to-wit: W.L. Miller, the said W.L. Miller being a male person, and the said Leland Stanford Ewing, did then and there sustain osculatory relations with the private parts of the said W.L. Miller, and so the said Leland Stanford Ewing did in the manner and form aforesaid, commit and perpetrate the detestable crime of sodomy, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.'"
Before the trial, the defendant had demurred to the indictment upon the alleged ground that more than one crime was charged therein. The overruling of that demurrer forms the basis upon which defendant makes his first assignment of error in this appeal.