282 P.2d 675 (Or. 1955), State v. Wojahn

Citation:282 P.2d 675, 204 Or. 84
Opinion Judge:ROSSMAN, J.
Party Name:STATE of Oregon, Plaintiff-Appellant, v. Kenneth C. WOJAHN, Defendant-Respondent.
Attorney:James J. Kennedy, Deputy District Attorney, Portland, argued the cause for appellant. With him on the brief were John B. McCourt, District Attorney, Portland, and Robert Y. Thornton, Attorney General, Salem. Howard K. Beebe, Portland, argued the cause for respondent. On the brief were Maguire, Sh...
Case Date:April 13, 1955
Court:Supreme Court of Oregon

Page 675

282 P.2d 675 (Or. 1955)

204 Or. 84

STATE of Oregon, Plaintiff-Appellant,

v.

Kenneth C. WOJAHN, Defendant-Respondent.

Supreme Court of Oregon, En Banc.

April 13, 1955

Page 676

Argued Feb. 2, 1955.

Page 677

[204 Or. 86] James J. Kennedy, Deputy Dist. Atty., Portland, argued the cause for appellant. With him on the brief were John B. McCourt, Dist. Atty., Portland, and Robert Y. Thornton, Atty. Gen.

Howard K. Beebe, Portland, argued the cause for respondent. On the brief were Maguire, Shields, Morrison & Bailey, Portland.

ROSSMAN, Justice.

This is an appeal by the state from a judgment of the circuit court which was entered in favor of the defendant after the court had sustained a demurrer to the indictment upon the ground that the indictment did not charge the commission of a crime.

The indictment is based upon Oregon's negligent homicide statute, ORS 163.090. The latter was amended, after the indictment was filed, by Oregon Laws 1953, ch. 676, § 2. The material part of ORS 163.090 follows:

'When the death of any person ensues within one year as the proximate result of injuries caused by the driving of any motor vehicle in a negligent manner, * * * the person so driving such vehicle * * * is guilty of negligent homicide, and, upon conviction, shall be punished by imprisonment in the county jail for not more than one year, or in the state penitentiary for not more than three years, or by a fine of not to exceed $2,500, or by both fine and imprisonment.'

ORS 161.010 says:

'As used in the statutes relating to crimes and criminal procedure, unless the context requires otherwise:

* * *

* * *

[204 Or. 87] '(2) 'Neglect,' 'negligence,' 'negligent' and 'negligently' import a want of such attention to the nature or probable consequences of the act or omission referred to as a prudent man ordinarily bestows in acting in his own concerns.'

The indictment charges that the defendant, on July 7, 1953, 'negligently operated a motor vehicle upon Northeast Broadway Street in the City of Portland,' and gives the following particulars:

'* * * failing to obey a traffic signal, and without due regard to the traffic, surface and width of the highway, and the hazard and other conditions then and there existing; and with want of such attention to the nature and probable consequences of his acts or omissions as a prudent person ordinarily bestows in acting in his own concerns.'

The indictment avers that the defendant, while operating his car in the above manner, injured one Thomas Howell, who on the same day died 'as a proximate result' of the defendant's negligence.

The defendant-respondent does not claim that the indictment fails to charge him with negligence. His challenge of the indictment is in fact a challenge of ORS 163.090. The defendant's brief makes these charges against the act (which was Oregon Laws 1941, ch. 439, § 3):

'(a) A conviction thereunder would deprive this respondent of his liberty without due process of law in violation of the Fourteenth Amendment to the Constitution of The United States;

'(b) Said statute is so vague and indefinite that respondent's right to demand the nature and cause of the accusation against him is denied and impaired and, therefore, violates Article I, Section 11, Oregon Constitution;

'(c) Because of its vagueness and uncertainty the statute casts upon the judges and juries of the judicial department the duty to ascertain and fix [204 Or. 88] a standard of conduct, ex post facto, the breach of which constitutes a crime, and, therefore, violates Article I, Section 1, and Article III, Section 1, Oregon Constitution;

'(d) Because of its vagueness the statute which provides for the punishment of crime cannot be founded upon the principles of reformation but must necessarily be founded upon vindictive justice and, therefore, violates Article I, Section 15, Oregon Constitution.'

Page 678

The issues presented by those contentions are not unprecedented. Many states have legislation comparable to ours, and their acts have been the subject of judicial attention. Although our negligent homicide act controlled the outcome in State v. Smith, 198 Or. 31, 255 P.2d 1076, and State v. Coffman, 171 Or. 166, 136 P.2d 687, no one questioned its adherence to constitutional requirements.

Before turning to the decisions of the other jurisdictions which determined the validity of comparable legislation we will take note of the fact that penal statutes, which authorize a determination of an accused's guilt or innocence by applying to his challenged act a criterion of due care, are not strangers to this jurisdiction. One act of that kind is our involuntary manslaughter act, ORS 163.040, subsection (2); another is our act which governs the speed of motor vehicles, ORS 483.102.

ORS 163.040, subsection (2), says:

'Any person who, in the commission of any unlawful act, or a lawful act without due caution or circumspection, involuntarily kills another, is guilty of manslaughter. The provisions of this subsection shall not apply to the killing of any person where the proximate cause of such killing is an act or omission defined as negligent homicide in ORS 163.090.'

[204 Or. 89] The penalty for manslaughter is 'imprisonment in the penitentiary for not more than 15 years and by a fine not exceeding $5,000.' ORS 163.080. The first sentence of ORS 163.040, subsection (2), in substantially its present language, became a part of our laws in 1864.

It will be observed that the above section of our manslaughter act authorizes a finding that the accused is guilty if the fatal lawful act was committed 'without due caution or circumspection'. We have noticed that the negligent homicide act renders the accused guilty if he drove 'in a negligent manner' and thereby inflicted an injury, as a proximate result of which the victim died within one year.

According to a note in 31 California Law Review 215, negligent homicide acts have been enacted 'because of the difficulty of getting manslaughter convictions in automobile death cases.' Since the criteria employed by the two acts as the means of determining guilt are virtually alike, the jury's reluctance to convict of manslaughter and its response to duty under the negligent homicide act must come from something other than the criteria which determine guilt.

Giving attention only to the phraseology in which the two measures are cast, we observe that the differences between manslaughter and negligent homicide are (a) the title for the new crime is less grisly in its connotation than that of the old; (b) a lesser penalty is prescribed for negligent homicide than for manslaughter; (c) the test for negligent homicide is 'in a negligent manner', whereas manslaughter takes as its test 'due caution or circumspection'; (d) the manslaughter act prescribes no period within which death must ensue, but the negligent homicide act fixes as the period one year.

In its administration of the manslaughter act, this court has regarded the term 'without due caution or [204 Or. 90] circumspection' as the virtual equivalent of the term 'negligence'. For example, State v. Miller, 119 Or. 409, 243 P. 72, affirmed per curiam 273 U.S. 657, 47 S.Ct. 344, 71 L.Ed. 825, and see the comment in Cline v. Frink Dairy Co., 274 U.S. 445, 464, 47 S.Ct. 681, 71 L.Ed. 1146, upon State v. Miller said [119 Or. 409, 243 P. 74]:

'If the defendant had been indicted for having committed the crime of involuntary manslaughter by the doing of a lawful act 'without due caution or circumspection,' it would have been necessary under that theory to have alleged specifically the facts constituting such negligence. The rule in alleging negligence in civil actions would then apply.'

See, also, State v. Boag, 154 Or. 354, 59 P.2d 396; State v. Newberg, 129 Or. 564, 278 P. 568; and State v. Clark, 99 Or. 629, 196 P. 360.

The above section of the manslaughter act has been enforced many times, yet no

Page 679

one has ever called upon the act to sustain its validity. State v. Boag, supra; State v. Lockwood, 126 Or. 118, 268 P. 1016; State v. Trent, 122 Or. 444, 252 P. 975, 259 P. 893; State v. Newberg, supra; State v. Miller, supra; State v. Clark, supra; State v. Justus, 11 Or. 178, 8 P. 337. Its validity has been taken for granted.

The above indicates that ever since its enactment in 1864 the precursor of the negligent homicide statute has been treated as constitutional. Seemingly, no doubt has ever been entertained upon that score. We also see from the foregoing that the formula of 'due caution or circumspection', which the manslaughter act employs as the test of an accused's conduct, has been treated as correlative of 'negligence', and that no difficulty has been experienced in drafting indictments under the act, or with any other phase of the act's administration.

[204 Or. 91] ORS 483.102, which we mentioned in the preceding paragraph, follows:

'(1) No person shall drive a vehicle upon a highway at a speed greater than is reasonable and prudent, having due regard to the traffic, surface and width of the highway, the hazard at intersections and any other conditions then existing.

'(2) No person shall drive at a speed which is greater than will permit the driver to exercise proper control of the vehicle and to decrease speed or to stop as may be necessary to avoid colliding with any person, vehicle or other conveyance on or entering the highway in compliance with legal requirements and with the duty of drivers and other persons using the highway to exercise due care.'

ORS 483.990, subsection (2), says:

'Any violation of ORS 483.102, unless such violation occurs under the conditions of subsection (3) of this section, is punishable, upon conviction, by a fine of not more than $25, or by imprisonment for not more than five days, or both.'

Subsection (3) of ORS 483.990 authorizes the imposition of a penalty somewhat greater than the one prescribed in subsection...

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