Merrill v. Gladden

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: Before McALLISTER; PERRY; McALLISTER
• Citation: Merrill v. Gladden, 216 Or. 460, 337 P.2d 774 (Or. 1959)
• Decision Date: 15 April 1959
• Parties: Robert Benjamin MERRILL, Respondent, v. Clarence T. GLADDEN, Warden of the Oregon State Penitentiary, Appellant.

Page 774

337 P.2d 774

216 Or. 460

Robert Benjamin MERRILL, Respondent, v. Clarence T. GLADDEN, Warden of the Oregon State Penitentiary, Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted Feb. 5, 1959.

Decided April 15, 1959.

Peter S. Herman, Asst. Atty. Gen., for appellant. With him on the brief was Robert Y. Thornton, Atty. Gen.

Merlin Estep, Salem, for respondent.

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

PERRY, Justice.

This is an appeal from a decree of the trial court in a habeas corpus proceeding whereby the plaintiff Robert Benjamin Merrill was ordered released from the custody of the warden of the state penitentiary.

The plaintiff was convicted of the crime of assault with intent to rob as defined in § 23-427, O.C.L.A., now ORS 163.270, and sentenced to serve a term of 20 years in the state penitentiary.

The basis of plaintiff's right to be released under the writ is grounded in his contention that the authorized penalty of 20 years for an assault with intent to rob, as defined by § 23-427, O.C.L.A., is greater than the maximum provided for the completed crime of robbery (15 years), as defined by § 23-429, O.C.L.A., and is, therefore, repugnant to the equal protection clause of the Fourteenth Amendment of the Constitution of the United States and also Article I, Section 16 of the Constitution of the State of Oregon, which declares: 'Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense.'

If the plaintiff's position is to be sustained as violating this provision of our Constitution, then the crime of assault with intent to rob must be found to be a lesser and included offense of the crime of robbery and disproportionate to the penalty provided for the consummated crime. Cannon v. Gladden, 203 Or. 629, 281 P.2d 233.

Section 23-427, O.C.L.A., supra, under which plaintiff was convicted and punished is as follows:

'If any person shall assault another with intent to kill, or rob, or to commit rape upon such other, or to commit any of the crimes specified in section 23-422, such person, upon conviction thereof, shall be punished by imprisonment in the penitentiary during the life of such person or for a period of not less than one nor more than twenty years.'

While the offense charged and of which the plaintiff was convicted consists of two elements, (1) assault, and (2) an intent to commit the crime of robbery, State v. Olsen, 138 Or. 666, 7 P.2d 792, State v. McLennen, 16 Or. 59, 16 P. 879, it is clear from the context of the statute that the intent to commit the particular crime designated therein is used to distinguish this assault from other criminal assaults defined in other statutes and to classify a crime deserving greater punishment than a mere assault.

'* * * An assault is an intentional attempt by one person by force or violence to do an injury to the person of another, coupled with present ability to carry the intention into effect.' Smallman v. Gladden, 206 Or. 262, 291 P.2d 749, 754; State v. Carroll, 155 Or. 85, 62 P.2d 830; State v. Selby, 73 Or. 378, 144 P. 657.

The crime of robbery as then defined in our statutes, whether armed with a dangerous weapon (§ 23-428, O.C.L.A.) or without (§ 23-429, O.C.L.A.), can only be consummated through an assault. In fact, an essential element of robbery is an assault, 46 Am.Jur. 145, Robbery § 14; so an assault would be a necessary element even of an attempted robbery.

At common law, the crime of robbery was defined as the felonious taking of money or goods of value from the person of another against the victim's will by force or putting him in fear. 46 Am.Jur. 139, Robbery § 2.

It will be noted, therefore, that the amount of force to put the victim in fear is not a necessary ingredient to the commission of the crime. Any force or display of force sufficient to accomplish the larceny is all that is required.

With the codification of the commonlaw crimes it became the practice in many states to divide the crime into 'degrees or grades, with different punishments, according to the means by which, or the circumstances under which, the offense is committed.' 2 Wharton's Criminal Law 245, Robbery § 546.

This is what occurred in this state and § 23-428, O.C.L.A., supra, is but a higher degree or grade of the crime denounced in § 23-429, O.C.L.A., supra. Therefore, we are of the opinion the crime of assault with an intent to commit robbery must be a lesser included offense of the crime of robbery, and, since our constitution provides that 'all penalties shall be proportioned to the offense,' we conclude that the penalty assessable for the crime of assault with intent to rob cannot be greater than that provided for the accomplished robbery.

The defendant contends that since the crime of robbery may be accomplished by an assault either with or without a dangerous weapon, and since the statute under which the plaintiff was convicted is silent as to the manner of the assault, it follows that if the assault was committed with a dangerous weapon then the penalty provided for assault and robbery with a dangerous weapon would apply and since this penalty can include upward to a life sentence the sentence of 20 years imposed on the petitioner is not disproportionate to the penalty provided for the greater crime.

The crime of robbery may be committed either armed with a dangerous weapon, § 23-428, O.C.L.A., ¹ or unarmed, § 23-429, O.C.L.A. ²

No citation of authority is necessary to the effect that the legislature has full authority to provide a greater penalty for a crime committed in an aggravated manner than one that is not.

The rule of the common law that penal statutes are to be strictly construed has been abrogated by statute. Criminal statutes are now to be construed according to their fair import to effect their object and promote justice. ORS 161.050.

In construing these statutes (§§ 23-427, 23-428, 23-429, O.C.L.A.) in pari materia, we are of the opinion that since § 23-427, O.C.L.A., provides the identical penalty for its violation as § 23-428, O.C.L.A. (see § 26-1215, O.C.L.A., now ORS 137.120) and also fails to either enlarge or restrict the manner of the assault or robbery, it was the legislative intent to include the penalty for the higher as well as the lesser degree of robbery in the assault with intent statute.

While we are of the opinion that the term 'assault' as used in the attempt statute was intended by the legislature to include every manner of assault, both with and without dangerous weapons, the question posed is whether the penalty provided for armed robbery or unarmed robbery should govern when applying the constitutional limitation that 'all penalties shall be proportioned to the offense.'

The plaintiff contends that even if the penalty for the highest degree of robbery may be a measuring stick to be considered in adjudicating the penalty as being proportionate to the offense committed, the indictment in this case was insufficient to grant the trial court jurisdiction to use that guide in imposing the sentence of 20 years upon him.

Plaintiff's contention is based upon the fact that the indictment describes only the nature of the assault and not the fact that the plaintiff in attempting the robbery had a mental attitude reflecting an intent to kill or wound his victim if resisted.

On the other hand, the defendant contends this indictment is sufficient because it alleges an attack with a dangerous weapon, and since § 23-429, O.C.L.A., speaks of robbery committed while 'not being armed with a dangerous weapon,' plaintiff could not be found guilty of robbery under § 23-429, O.C.L.A.

The difficulty with defendant's approach is at once apparent. If the robbery is committed while being armed with a dangerous weapon without an intent, if resisted, to kill or wound the person assaulted, there would be no penalty for this crime of robbery, although in fact a robbery had been committed.

We do not believe the legislature intended to leave such a hiatus in the law. Common sense dictates that if the higher degree of robbery is not established, then, if in fact a robbery has been committed, the offense is punishable as a lesser degree of the crime.

The plaintiff was charged in the indictment as follows:

'The said Robert Benjamin Merrill on the 25th day of July A.D. 1945, in the said County of Jackson and State of Oregon, then and there being, and then and there being armed with a dangerous weapon, to-wit, a beer bottle, did then and there unlawfully...