Bonnie v. Gladden

• Decision Date: 26 May 1965
• Parties: Thomas William BONNIE, Appellant, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Respondent.
• Court: Oregon Supreme Court

Page 237

402 P.2d 237

240 Or. 462

Thomas William BONNIE, Appellant, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Respondent.

Supreme Court of Oregon, Department 1.

Argued and Submitted April 8, 1965.

Decided May 26, 1965.

Lawrence A. Aschenbrenner, Public Defender, Salem, argued the cause and filed briefs for appellant.

C. L. Marsters, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief was Robert Y. Thornton, Atty. Gen., Salem.

Before McALLISTER, C. J., and PERRY, O'CONNELL and DENECKE, JJ.

PERRY, Justice.

Petitioner Thomas William Bonnie was indicted, tried and convicted in the trial court of the crime of contributing to the delinquency of a minor. Thereafter he commenced this post-conviction proceeding, contending that the indictment under which he was charged failed to state a crime. The defendant filed a demurrer to his petition and the trial court sustained the demurrer. From the order sustaining the demurrer the petitioner has appealed.

The indictment reads as follows:

'THOMAS WILLIAM BONNIE is accused by the Grand Jury of the County of Multnomah and State of Oregon, by this indictment of the crime of CONTRIBUTING TO THE DELINQUENCY OF A MINOR committed as follows:

'The said THOMAS WILLIAM BONNIE on or about the 2nd day of July, A. D. 1963, in the County of Multnomah and State of Oregon, then and there being, and one Deborah LaRiviere then and there being an unmarried female child under the age of eighteen years, the said THOMAS WILLIAM BONNIE did then and there unlawfully, wilfully and feloniously do certain acts, to-wit, did then and there place his tongue inside the mouth of the said Deborah LaRiviere and did then and there place his face upon the lap of the said Deborah LaRiviere, which said acts did manifestly then and there tend to cause the said Deborah LaRiviere to become a delinquent child, contrary to the Statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.'

The basis of the petitioner's complaint is that both acts alleged in the indictment are in themselves innocent acts and, therefore, are insufficient to allege a crime.

The petitioner did not appeal from his conviction. His attack upon the indictment is raised under the provisions of ORS 138.510 et seq., generally referred to as the Post-Conviction Relief Act.

It is well settled that an attack upon on the sufficiency of an indictment in a post-conviction proceeding is collateral and is governed by the same legal principles which have been by this court previously applied when the person incarcerated upon conviction of a crime attacks the sufficiency of the indictment by habeas corpus. State v. Cloran, 233 Or. 400, 414, 374 P.2d 748, 377 P.2d 911, 378 P.2d 961, 98 A.L.R.2d 732.

In Hills v. Pierce, 113 Or. 386, 231 P. 652, and Brooks v. Gladden, 226 Or. 191, 358 P.2d 1055, this court noted that a collateral attack is not intended to afford the relief of direct proceedings granted by appellate review. See also McNally v. Hill, Warden, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238.

The inquiry to determine the sufficiency of an indictment in a collateral proceeding then is not governed by the rules of law applicable when its sufficiency is tested by a demurrer or motion to quash. The inquiry is directed to whether the indictment charges the accused with an offense made criminal by the laws of the state and whether the court in which the accused was tried had jurisdiction of the cause and person. State v. Cloran, supra, and cases cited therein.

The argument of the petitioner herein is addressed to the proposition that the acts of merely placing petitioner's tongue in the mouth of the girl, or as he expresses it 'French kissing,' and placing his face upon her lap are not in themselves acts which will manifestly tend to cause a minor girl to become a delinquent. Therefore, he draws the conclusion that no crime is charged and the trial court was without...