277 P.2d 386 (Or. 1954), State v. Holland

Citation:277 P.2d 386, 202 Or. 656
Opinion Judge:BRAND, J.
Party Name:STATE of Oregon, Respondent, v. Oscar HOLLAND, Appellant.
Attorney:Roy Kilpatrick, of Canyon City, argued the cause for appellant. With him on the brief were Rob't. D. Lytle and W. F. Schroeder, of Vale. Clifford B. Olsen, Deputy District Attorney for Grant County, argued the cause for respondent. With him on the brief was Michael S. Mogan, District Attorney for...
Case Date:December 08, 1954
Court:Supreme Court of Oregon

Page 386

277 P.2d 386 (Or. 1954)

202 Or. 656

STATE of Oregon, Respondent,

v.

Oscar HOLLAND, Appellant.

Supreme Court of Oregon.

December 8, 1954

Argued and Submitted Oct. 27, 1954.

[202 Or. 657] Roy Kilpatrick, Canyon City, argued the cause for appellant. With him on the brief were Rob't D. Lytle and W. F. Schroeder, Vale.

Page 387

Clifford B. Olsen, Canyon City, Deputy Dist. Atty., for Grant County, argued the cause for respondent. With him on the brief was Michael S. Mogan, Canyon City, Dist. Atty., for Grant County.

[202 Or. 658] Before WARNER, Acting C. J., and LUSK, BRAND and PERRY, JJ.

BRAND, Justice.

The defendant was charged with the crime of murder in the second degree. He entered a plea of not guilty, was tried by a jury, and found 'guilty * * * as charged in the indictment.' He was sentenced, and now appeals. The indictment reads as follows:

'Oscar Holland is accused by the Grand Jury of the County of Grant by this Indictment of the crime of murder in the 2nd degree, committed as follows:

'The said Oscar Holland on the 31st day of October, 1953, in the said County of Grant, and State of Oregon, then and there being, did then and there purposely, and maliciously, kill Braskell Merle Wright, by then and there cutting and stabbing him, the said Braskell Merle Wright, about the neck and body with a knife. contrary to the statutes * * *.'

The first assignment of error reads as follows:

'The trial court lacked jurisdiction to try the defendant because Section 23-402 OCLA under which the indictment was brought was repealed before the trial began.'

Defendant contends that the 1953 legislature, by enacting Oregon Revised Statutes without a saving clause, granted a legislative pardon to the defendant. On 31 October 1953, the date of the alleged crime, the following statute was in full force and effect:

'If any person shall purposely and maliciously, but without deliberation and premeditation, or in the commission or attempt to commit any felony, other than rape, arson, robbery, or burglary, kill [202 Or. 659] another, such person shall be deemed guilty of murder in the second degree.' O.C.L.A. § 23-402.

The statute remained in effect at the time of arraignment and plea of not guilty, but on 31 December 1953 the Oregon Revised Statutes went into effect pursuant to the provisions of Oregon Laws 1953, ch. 3. The defendant was tried on 4 January 1954.

The crime of murder in the second degree, so far as relevant here, is defined in Oregon Revised Statutes as follows:

'(1) Any person who kills another purposely and maliciously but without deliberation and premeditation, or in the commission or attempt to commit any felony other than rape, arson, robbery or burglary, is guilty of murder in the second degree. * * *' ORS 163.020.

Comparison of O.C.L.A. § 23-402 with ORS 163.020 discloses that the essential elements of the crime have not been changed.

The duties of the Statute Revision Council were set forth by statute:

'It shall be the duty of the statute revision council to clarify, simplify, classify, arrange, coordinate, codify and revise the laws of this state now in force, including those enacted by the forty-fifth session of the legislative assembly, and prepare and have set in type for publication as much thereof as is practicable and make a printed report of their progress to the forty-sixth session of the said assembly. In preparing editions of the statutes for publication and distribution, the statute revision council shall not alter the sense, meaning or effect of any act, but, within such limitations, may correct the grammar, punctuation, spelling and form thereof, employ standard nomenclatures, renumber sections [202 Or. 660] and parts of sections of the acts, rearrange sections, subsections and paragraphs, change reference numbers to agree with renumbered chapters, sections or other parts, substitute the proper subsection, section or chapter or other division numbers, strike out figures

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which are merely a repetition of written words, change capitalization for the purpose of uniformity, and correct manifest clerical or typographical errors, and generally revise, coordinate, correlate, clarify and simplify the statutory law of this state.' Oregon Laws 1949, Chapter 317, Section 3.

In defining second degree murder the revisors clearly complied with the direction that they should not 'alter the sense, meaning or effect' of the previous statute on the subject.

Defendant relies upon the provisions of Oregon Laws, Chapter 3, now ORS 174.520 to and including 174.560, as granting to defendant a 'legislative pardon.' We quote the relevant portions:

'(1) All statute laws of Oregon of a general, public and permanent nature enacted prior to January 12, 1953, hereby are repealed, except as provided in subsection (2) of this section.

'(2) If any provision of the Oregon Revised Statutes as enacted by ORS 174.510, derived from an Act that amended or repealed a pre-existing statute, is held unconstitutional, the provisions of subsection (1) of this section shall not prevent the pre-existing statute from being law if that appears to have been the intent of the Legislative Assembly or the people.' ORS 174.520.

'The Oregon Revised Statutes, as enacted by ORS 174.510, are intended to speak for themselves; and all sections of the Oregon Revised Statutes as so enacted shall be considered to speak as of the same date, except that in cases of conflict between two or more sections or of an ambiguity in a section, reference may be had to the Acts from [202 Or. 661] which...

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