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Despite what the Criminal Law Revision Commission specifically said in its Report at page 190, quoted above, it has been argued to us that ORS 135.855(1)(c) was meant to protect a recording of the testimony of a witness before the grand jury from discovery at any and all times.[4] If so, the Commission and the legislature chose an odd place in which to codify that section. By its own terms, the section applies only to "discovery under ORS 135.805 to 135.873." The Commission's draft from which those sections of ORS are taken separately groups the sections under the name, "Pre-Trial Discovery" as Article 11 of the Final Draft and Report. The commentary reveals the following sense of the Commission with respect to the application of what is now ORS 135.805 to 135.873:
The state's final position is that if discovery of Losh's testimony before the grand jury is to be allowed, that can only be accomplished as prescribed in ORS 132.220 by calling a grand juror.[7] This argument *593 confuses discovery with manner of proof. ORS 132.220 deals with the power of a court to require a grand juror to testify as a means of proving what took place before the grand jury.[8] Unless the defendant is afforded the right to inspect the tape of Losh's testimony, defendant has no practical method of discovering whether to call a grand juror to testify as to inconsistencies, if any.[9]
Oregon's current burglary statute, ORS 164.215, was enacted in 1971, five years after the Keys decision. The statute is identical to Section 136 of the Proposed Oregon Criminal Code, Final Draft and Report of the Criminal Law Revision Commission, July, 1970. As we pointed out in note 10 supra, the drafters intended that burglary under the revised statutory scheme was to consist of a form of criminal trespass with two aggravating factors: (1) that the premises invaded be a building, and (2) that the trespasser entered or remained with the intent to commit a crime in the building. The requisite primary element, i.e., criminal trespass, is required to be established. The criminal trespass is then transformed into a burglary only if the aggravating factors are present.
The origin of ORS 135.815(1) which requires the district attorney to disclose to defendant the names and statements of his proposed witnesses, is in a draft prepared and explained by then Solicitor General John Osburn. The following excerpts from the minutes are consistent with the Commentary to the ABA Standards and demonstrate that the Commission intended discovery to be made prior to trial as a matter of efficient timing, not to restrict application of the statutes to preliminary proceedings:
The Committee did not hesitate. ItsAnnual Report for 1918, sent to the president within three weeks ofthe armistice, recommended federal legislation to promote andregulate civilian and commercial aviation. To this end, it reportedthe formation of a committee in conjunction with other governmentagencies concerned with aviation: the War, Navy, Commerce, and PostOffice Departments. The issues taken up by the committee were thesame ones confronted more than seven years later when legislation wasfinally enacted: First, what action should be taken to ensure ahealthy aviation industry, both as a commercial enterprise worthy inits own right and as a reliable source of military aircraft in theevent of war? Second, how much regulation did flying require to makeit a safe, attractive, and profitable means of transportation? Andthird, what organization of government agencies would be mostconducive to these ends? Disagreement on the first two issues wasminor, technical, and negotiable. Disagreement on the last wasintense, divisive, and finally bitter. It held up passage ofcivil-aviation legislation for more than sevenyears.3
This interdepartmental committee proved anunsatisfactory mechanism for dealing with these questions. Itformulated a proposal quickly enough, recommending that the presidentappoint a joint interagency board to control civil aviation. But theNACA lacked authority to submit this proposal without the approval ofthe agencies concerned. While the draft circulated through theseagencies, 1918 slipped away, several of the military members of thecommittee were transferred, and the interdepartmental committeeitself dissolved for lack of replacements. By February 1919 littlehope remained that the proposal for a joint board could be consideredby the 65th Congress before it expired in March. Meanwhile, theaviation situation was becoming increasingly desperate. The army waslicensing domestic aviation under wartime [53] emergencylegislation. Surplus military aircraft were being put on the openmarket with virtually no control over how and where they mightoperate. Aviation anarchy loomed.
When approved by the Executive Committee,these principles were embodied in draft legislation "To Create aBureau of Air Service in the Department of Commerce ......" Threeprovisions of this draft bill are crucial to a study of NACA history,for by following them it is possible to follow all subsequentcivil-aviation legislation and see where the NACA stood. First, themain purpose of the bill was to create an organization within theDepartment of Commerce to regulate and encourage civil aviation.Second, it precluded a single, unified department of aeronautics forthe entire federal government, calling instead for autonomousaeronautical bureaus within the Departments of War, Navy, PostOffice, and Commerce, in addition to the National Advisory Committeefor Aeronautics. Finally, the bill provided for a "Joint Board" to becomposed of the heads of these autonomous bureaus. The board wouldmeet to coordinate the various aeronautical activities of the federalgovernment, a role that the NACA had been filling unofficially sinceits creation and that it would continue to fill in the area ofaeronautical research. It was on this last issue - the coordinatingfunction - that the NACA would be drawn into overstepping its boundsin the fight for civil-aviation legislation.8
On 19 May 1920, Congressman F.C. Hicksintroduced a bill "To Create a Bureau of Aeronautics in theDepartment of Commerce ....." Modeled on the draft NACA legislation,the bill was the joint product of Hicks on the one hand and Dr.Walcott and two military members of the NACA on the other. Hicksreportedly said that the principles it embodied were the same as theCommittee's. A more limited piece of legislation, providing only forthe regulation of air commerce by a bureau within the Department ofCommerce and containing no provisions for governmentwidecoordination, had been introduced six days earlier by CongressmanJulius Kahn. While not at odds with either the Hicks or the NACAproposals, the Kahn bill did not go as far in outlining the entiregovernment structure for aeronautics; it was silent on the pivotalissue of coordination.9
How this particular wording found its way intothe revised Hicks bill is not entirely clear. Congressman Hicks, indrafting his original legislation, had apparently expanded upon thesuggestions of the NACA. He gave to the Aeronautics Board powers thatthe NACA had not recommended, powers which reflected "that sentimentin Congress which has sought to prevent duplication of expendituresand effort in the military and naval air services." When Walcott cameto suggest [57] revisions to the bill, he found himself caughtbetween Congress and the military. Congress wanted the strongcoordinating function; the military did not want it in the Departmentof Commerce. So Walcott simply transferred the function to the NACAand presented the results to the Executive Committee on 11 June 1920.In subsequent meetings during the summer, the Executive Committee inWalcott's absence moderated the powers ascribed to the NACA; thefinal result, quoted above, nevertheless retained the appearance of apower grab by the Committee. Hicks, who apparently approved and mighteven have encouraged the change, accepted the NACArecommendations.12
Neither the Hicks nor the Kahn bill passed inthe third and final session of the 66th Congress, or in the specialsession of the 67th Congress that followed immediately thereafter.There seems to have been little of the opposition that the NACA feltmight face the Hicks bill. Rather the legislation failed for lack ofinterest and active support. Congress was not opposed, justindifferent and preoccupied with other business. This experience ledthe members of the NACA to seek more cooperation among the governmentagencies that favored the legislation and more assistance from theWhite House - specifically from the new Harding administration. Onthe initiative of the NACA, a meeting was held at the War Department31 March 1921. A subcommittee was appointed to draft a letter for thesignature of President Harding, calling upon the NACA to investigatethe subject of civil aviation and report to him on what steps wereneeded.17
The president signed the letter on theafternoon it was presented to him, and four days later the NACA'sSubcommittee on Federal Regulation of Air Navigation held its firstmeeting. With Walcott as chairman, Victory as secretary, and othermembers drawn from the War, Navy, Commerce, and Post OfficeDepartments as well as from private life, the subcommittee set aboutanswering the questions posed by Harding: What could be done withoutfurther legislation, and what legislation and appropriations would benecessary to effect whatever recommendations the subcommittee mightmake? Using the National Aviation Policy recently published by theNACA as foundation, the subcommittee drafted a set of recommendationsin three consecutive days.18 2ff7e9595c
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