Lilly v. Gladden

• Decision Date: 30 December 1959
• Citation: 348 P.2d 1,220 Or. 84
• Parties: Raymond D. LILLY, Respondent, v. Clarence T. GLADDEN, Appellant.
• Court: Oregon Supreme Court

Page 1

348 P.2d 1

220 Or. 84

Raymond D. LILLY, Respondent, v. Clarence T. GLADDEN, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted Dec. 16, 1959.

Decided Dec. 30, 1959.

Robert G. Danielson, Asst. Atty. Gen., for appellant. With him on the brief was Robert Y. Thornton, Atty. Gen.

Duane R. Ertsgaard, Salem, for respondent.

O'CONNELL, Justice.

This is a proceeding for post-conviction relief under the Oregon Post-Conviction Hearing Act, Laws 1959, c. 636 initiated in Marion county by the petition of plaintiff, who seeks release from the state penitentiary on the ground that he is unlawfully confined. The defendant demurred to the plaintiff's petition on the ground that it failed to state facts sufficient to constitute grounds for release. The trial court overruled the demurrer, decreed that the sentence entered by the circuit court for Lane county committing plaintiff to the state penitentiary was void, and ordered plaintiff discharged from the custody of the defendant and the Oregon state penitentiary. The defendant appeals from this judgment order of the Marion county circuit court.

On December 16, 1958, plaintiff was charged in an information filed by the district attorney for Lane county with the crime of Attempted Obtaining Money and Property under False Pretenses. The material parts of the information were as follows:

'That said Raymond D. Lilly on the 19th day of November A.D., 1958 in the said County of Lane, State of Oregon, then and there being, did then and there wilfully and unlawfully, with intent to injure and defraud, falsely pretend to John W. Sweeney of Sweeney's Shell Service Station, 129 South A Street, Springfield, Oregon, that he, the said Raymond D. Lilly, had on deposit with the Springfield Main Branch of The First National Bank of Oregon subject to check, the sum of $5.00 and that a certain bank check drawn on said bank for said sum of money, dated November 19, 1958, signed by the said Raymond D. Lilly and then and there delivered by him to John W. Sweeney of Sweeney's Shell Service Station, was a good and valid check for said sum of money, by means of which false token, false pretenses and fraudulent check the said defendant did then and there unlawfully and wilfully attempt to obtain from the said John W. Sweeney of Sweeney's Shell Service Station merchandise, to-wit: two gallons of gasoline, and the balance in lawful money of the United States of America; whereas, in truth and in fact, he, the said defendant did not then and there have on deposit in said bank, subject to check, the sum of $5.00 nor any sum whatsoever subject to check, and the said bank check was neither good nor valid, but was void and worthless, all of which the said defendant then and there well knew; contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.'

The information bears the notation indicating that the crime intended to be charged is defined in ORS 165.205.

On January 8, 1959, plaintiff was placed on probation with the Oregon State Parole Board for a period of two years. The probation was revoked on June 25th, 1959 and plaintiff was on that date sentenced to serve a term not to exceed two years in the penitentiary.

Plaintiff contends that the judgment of conviction and his imprisonment based thereon are void because the Oregon statutes relating to the conduct for which he was prosecuted and convicted permit the district attorney, the magistrate, or the grand jury to decide whether the crime charged will be a felony or misdemeanor, and that consequently there is a violation of the equal protection clause of the Fourteenth Amendment of the United States Constitution and of Article I, § 20 of the Oregon Constitution.

Specifically, plaintiff argues that under the statutes as they existed when he was prosecuted if a person obtained property not exceeding $75 in value the district attorney could, at his discretion, elect to prosecute either under ORS 165.205 which would permit punishment by imprisonment up to five years in the penitentiary, or under ORS 164.310 which limits imprisonment to not more than one year in the county jail for such an offense. The principle relied upon is stated in State v. Powell, 1958, 212 Or. 684, 321 P.2d 333, where the court said:

'It is established law that if there can be found no rational basis for distinguishing the acts committed by one person from the acts committed by another, the acts of one cannot be treated solely as a felony and the acts of the other solely as a misdemeanor. The equal protection clause of the Fourteenth Amendment prohibits such legislation. * * * [T]he same acts without distinguishing criteria must be as to all persons treated either as a felony or as a misdemeanor. They cannot constitute both. State v. Pirkey, 203 Or. 697, 281 P.2d 698. This is not to be construed as prohibiting the right of a legislature to permit a trial court in its discretion to pass different sentences upon different offenders for the same crime.' 212 Or. at page 691, 321 P.2d at page 336.

See also State v. Pirkey, 1955, 203 Or. 697, 281 P.2d 698; State v. Buck, 1953, 200 Or. 87, 262 P.2d 495.

If, as plaintiff contends, the same act may be prosecuted either under ORS 165.205 or under ORS 164.310 the objection raised by him is well taken. We must determine, then, whether the statutes have this effect. The pertinent parts of ORS 164.310 read as follows:

'164.310. (1) Any person who steals the property of another, or who wilfully takes, carries, leads or drives away the property of another with the intent to deprive such other of such property permanently, or who knowingly and designedly, by any false or fraudulent oral, written or other representation or pretense, defrauds another of property, is guilty of larceny; and

'(a) If such property exceeds $75 in value, shall be punished upon conviction by imprisonment in the penitentiary for not more than 10 years.

'(b) If such property does not exceed $75 in value, shall be punished upon conviction by imprisonment in the county jail for not more than one year, or by a fine of not more than $500, or both.' (Italics supplied.)

The part of the statute shown in italics was added with other material by amendment in 1957 (Oregon Laws 1957, ch. 653) and the same language was deleted by amendment in 1959 (Oregon Laws 1959, ch. 302).

ORS 165.205 reads in part as follows:

'165.205. Obtaining property by false pretenses. (1) Any person who, by any false pretenses or any privity or false token, and with intent to defraud, obtains or attempts to obtain from any other person, any money or property, or who obtains or attempts to obtain with like intent the signature of any person to any writing, the false making of which would be punishable as forgery, shall be punished upon conviction by imprisonment in the penitentiary for not more than five years, or by imprisonment in the county jail for not more than one year, or by a fine of not more than $500, or by both such fine and imprisonment.'

Prior to the 1957 amendment of the larceny statute (ORS 164.310) there was no statutory provision expressly covering the case in which possession alone was obtained by false pretense. ORS 165.205 in making unlawful the obtaining of any money or property could perhaps be construed to include the obtaining of possession alone as well as title or title and possession, but such an interpretation would run counter to the well established distinction between the crimes of larceny and false pretenses, the latter crime arising only if the victim is induced to part with his ownership and not if possession alone is intended to pass. This distinction was recognized in State v. Germain, 1909, 54 Or. 395, 103 P. 521; Beckwith v. Galice Mines Co., 1908, 50 Or. 542, 93 P. 453, 16 L.R.A.,N.S., 723; State v. Ryan, 1905, 47 Or. 338, 82 P. 703, 1 L.R.A., N.S., 862. In the first case cited above the crime charged was obtaining property under false pretense. The court said:

'The first objection is to the sufficiency of the indictment. It is contended that the receipt shows on its face that the prosecutor Clinesmith, did not part with the title to his money, but only with the possession of it, and that, as the crime of obtaining money under false pretenses is committed only when the injured party is induced to part with the title to his property, the indictment does not state facts sufficient to constitute a crime. The courts have held with practical unanimity that the crime for which the defendant was convicted is not committed unless the party defrauded is induced by the false pretense to part with the title to his property, and that the mere parting with the possession is not sufficient. State v. Anderson, 47 Iowa 142; Grunson v. State, 89 Ind. 533, 46 Am.Rep. 178; Miller v. Commonwealth, 78 Ky. 15, 39 Am.Rep. 194; People v. Rae, 66 Cal. 423, 6 P. 1, 56 Am.Rep. 102. In these and in many other cases the courts hold that when by means of fraud, trick, or artifice, the possession of property is obtained with felonious intent, and the title still remains in the owner, the crime is larceny; but if the title, as well as the possession, is parted with, the offense is that of obtaining money under false pretenses. The distinction is a very fine and technical one, and does not seem to be very substantial, but is very tenaciously adhered to by the courts.' State v. Germain, 54 Or. at page 399, 103 P. at page 523.

Since this court had recognized in the foregoing cases that the obtaining of the possession of goods but not the title to goods is within the crime of larceny, the 1957 amendment of ORS 164.310 was not necessary to include such a case within the statutory definition of larceny. However, by another section of our statutes the scope of the crime of false pretenses was limited and in doubt prior to the amendment in 1957.

Prior to the 1957 amendment last referred to ORS 136.560 provided...