Barber v. Gladden
| Decision Date | 27 March 1957 |
| Parties | Application for a Writ of Habeas Corpus of George R. BARBER, Appellant, v. Clarence T. GLADDEN, Warden of the Oregon State Penitentiary, Respondent. |
| Court | Oregon Supreme Court |
George R. Barber, appellant, in pro. per.
Robert Y. Thornton, Atty. Gen., and Peter S. Herman, Asst. Atty. Gen., for respondent.
This is an appeal from an order of the circuit court which dismissed a habeas corpus proceeding and remanded the plaintiff to the custody of the defendant warden of the state penitentiary.
The plaintiff filed a petition for a writ of habeas corpus in the Circuit Court for Marion County December 22, 1955, naming as defendant the warden of the state penitentiary. The court issued the writ, the defendant filed a return, and plaintiff demurred to the return. The demurrer was overruled and plaintiff filed a reply. Defendant demurred to the reply and the court sustained the demurrer. Upon the refusal of the plaintiff to plead further, the court issued the challenged order which dismissed the proceeding. The plaintiff appealed.
The defendant warden, in the return of the writ, set forth as his authority for the imprisonment a copy of a judgment order and sentence rendered by the Circuit Court for Douglas County November 20, 1953. By that order, plaintiff was sentenced to the penitentiary for an indeterminate period of time not to exceed 25 years, having been convicted of the crime of burglary with explosives. Plaintiff had entered a plea of guilty to the indictment.
On this appeal, plaintiff bases his attack on the legality of his imprisonment upon the following five grounds:
1. ORS 164.260, which defines the crime of burglary with explosives, is so vague that it violates Art. I, § 11 of the Oregon Constitution and the due process clause of the Fourteenth Amendment to the Constitution of the United States.
2. ORS 132.550, which is a guide to district attorneys in the drawing of indictments, is violative of Art. I, § 11, of the Oregon Constitution and the due process clause of the Fourteenth Amendment of the Constitution of the United States in that it sanctions the omission from the indictment of a description of the crime of which the defendant is accused and of the act or acts done by him constituting that crime.
3. The indictment under which plaintiff was tried and convicted failed to state facts sufficient to constitute a crime and was, therefore, violative of ORS 132.510 et seq., Art. I, § 11, of the Oregon Constitution, and the due process clause of the Fourteenth Amendment to the Constitution of the United States.
4. The sentence is void because it constitutes cruel and unusual punishment in violation of Art. I, § 16, of the Oregon Constitution.
5. Plaintiff was denied equal protection of the laws in violation of the Fourteenth Amendment to the Constitution of the United States in that his two accomplices in the perpetration of the crime for which he is imprisoned were permitted to plead guilty to the crime of burglary not in a dwelling, ORS 164.240, and received indeterminate sentences of not to exceed three years.
The constitutionality of a statute under which a person has been convicted upon a plea of guilty may be tested by habeas corpus. Kelley v. Meyers, 124 Or. 322, 263 P. 903, 56 A.L.R. 661, Smallman v. Gladden, 206 Or. 262, 291 P.2d 749.
ORS 164.260 reads:
'Any person who breaks and enters any building in the nighttime with intent to commit a crime therein, and in the commission of or attempt to commit such crime, uses or attempts to use nitroglycerine, dynamite, gunpowder or other high explosive, is guilty of burglary with explosives, and shall be punished upon conviction by imprisonment in the penitentiary for not more than 40 years.'
In the words fo Mr. Justice Holmes, we believe the statute 'lays down a plain enough rule of conduct for anyone who seeks to obey the law.' United States v. Alford, 274 U.S. 264, 47 S.Ct. 597, 598, 71 L.Ed. 1040. None of the words employed in the statute are beyond the ken of a man of ordinary understanding. In addition, two of them are clearly defined elsewhere. See ORS 161.020 and 161.030 ('crime') and ORS 164.210(1) ('nighttime').
Plaintiff's complaint seems to be that the statute does not specifically mention the use of explosives to force a safeguard nor the taking of property. Suffice it to say that while these may be among the elements of a charge under ORS 164.260, the legislature has so drawn the statute as to make it broader in scope.
ORS 164.260 is not vague and indefinite, and conviction pursuant to it did not, therefore, deprive plaintiff of his liberty without due process of law, 14th Amendment, U. S. Constitution, nor did it prevent plaintiff from being informed of the nature of the accusation against him, Art. I, § 11, Oregon Constitution.
ORS 132.550 provides that indictments 'may be substantially in the following form:
A_______ B_______ ) State of Oregon
'A.B. is accused by the grand jury of the County of _____, by this indictment, of the crime of _____ (here insert the name of the crime, if it has one, such as treason, murder, arson, manslaughter, or the like; or if it is a crime having no general name, such as libel, assault, and battery, and the like, insert a brief description of it as given by law), committed as follows:
'A.B., on the ___ day of _____, 19__, in the county aforesaid (here set forth the act charged as a crime).
'Dated at _____, in the county aforesaid, the ___ day of _____, A.D. 19__.
(Signed: C.D., District Attorney.
'(Indorsed): 'A true bill.'
(Signed) E.F., Foreman of the Grand Jury.'
That statute received comment in United States v. McKinley, C.C., 127 F. 168, 170, as follows:
'The form prescribed in the Oregon statute is not intended to indicate a rule as to the requisites of indictments but is a guide for the convenience of the pleader.'
Viewed in that light, ORS 132.550 is not amenable to attack; its provisions are not intended to establish a rule of law.
Lest the foregoing seem to imply criticism of ORS 132.550, we state that plaintiff has failed by a wide margin to demonstrate any defect in it. Spaces to detail the requirements of ORS 132.530 that the indictment must be certain as to the crime charged and its particular circumstances are fully provided for in the form.
A facsimile of the indictment introduced in evidence by plaintiff, omitting formal parts, follows:
'George R. Barber is accused by the Grand Jury for the County of Douglas, State of Oregon, by this indictment of the crime of Burglary with explosives committed as follows:
'The said George R. Barber on the 25th day of October, A.D.1953, in the said County of Douglas and State of Oregon, then and there being, did then and there unlawfully, wilfully and feloniously break and enter in the nighttime a certain building not a dwelling, to-wit: Neilson's Market located on South Stephens Street near the South City limits of the City of Roseburg, County and State aforesaid, the same being then and there a building in which there was at the time property kept with the intent of him, the said George R. Barber, to commit larceny therein by forcibly breaking an outer ventilator of the said building and while he, the said George R. Barber, was engaged in the commission of said larceny therein, did then and there use nitroglycerine, contrary to the Statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.'
In Hills v. Pierce, 113 Or. 386, 231 P. 652, 655, this court said:
'It is settled by abundant authority that although the indictment under which a prisoner is held in custody is defective in that it fails to state the facts constituting the crime, yet the is not entitled to his discharge upon habeas corpus if enough appear upon the face of the indictment to charge him with the crime.'
State . Chapin, 74 Or. 346, 144 P. 1187, 1189, sets out the standard which governs the sufficiency of indictments on appeal:
And see ORS 132.540.
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