State v. Ayers

• Decision Date: 05 February 1907
• Parties: STATE v. AYERS.
• Court: Oregon Supreme Court

88 P. 653

49 Or. 61

STATE v. AYERS.

Supreme Court of Oregon

February 5, 1907

Appeal from Circuit Court, Multnomah County; Arthur L. Frazer Judge.

William M. Ayers was convicted of a crime, and he appeals. Affirmed.

Martin L. Pipes and S.B. Huston, for appellant.

Bert E Haney, Dep. Dist. Atty., for the State.

MOORE, J.

The defendant, William M. Ayers, was accused by an information of the crime of willfully committing an act which grossly disturbed the public peace, openly outraged public decency and injured the public morals, alleged to have been perpetrated in Multnomah county, August 4, 1905, and prior thereto by habitually selling for gain pools upon horses at an exhibition trial of their speed on a race track particularly describing the place and the method pursued, and that he there and on the day mentioned, sold a ticket upon a certain horse to one Victor Lindback, receiving therefor the sum of $20, to the common nuisance of all good citizens, and contrary to the statutes, etc. A demurrer to the information on the ground that it did not state facts sufficient to constitute an offense against the laws of Oregon, having been overruled, a plea of not guilty was interposed, whereupon the defendant stipulated that the facts stated in the information were true and submitted the cause to the court, without the intervention of a jury, to determine whether or not he was guilty as charged, and, having been convicted thereof, he appeals from the judgment which followed.

The finding of his guilt conforms to the decision rendered in the case of State v. Nease, 46 Or. 433, 80 P. 897, and is based on an alleged violation of the following statute, to wit: "If any person shall wilfully and wrongfully commit any act which grossly injures the person or property of another, or which grossly disturbs the public peace or health, or which openly outrages the public decency and is injurious to public morals, such person, if no punishment is expressly prescribed therefor by this code, upon conviction thereof, shall be punished," etc. B. & C. Comp. § 1930. It is contended by defendant's counsel that, as this section neither names any offense at common law, so that reference might be had thereto for a more specific description, nor specifies any particular act that is denounced as a crime, an error was committed in observing the rule adopted in the case mentioned. As no common-law offenses are recognized in this state ( State v. Vowels, 4 Or. 324; State v. Gaunt, 13 Or. 115, 9 P. 55; State v. Nease, 46 Or. 433, 80 P. 897), it is necessary for the legislative assembly by statute to specify crimes and to prescribe punishments therefor, in order to make their enactments enforceable. In Hackney v. State, 8 Ind. 494, decided in 1856, it was held that there were not then in Indiana any common-law offenses, the court remarking: "We cannot look to the common law for the definition of a nuisance or any other crime," but that decision was evidently rendered after the passage of an act requiring all offenses committed in that state to be defined by statute ( Burk v. State, 27 Ind. 430), for prior thereto the rule had been that reference might be had to the ancient law to ascertain of what facts the crime of nuisance consisted ( State v. Bertheol, 6 Blackf. [ Ind.] 474, 39 Am.Dec. 442). Lord Coke, in discussing the principles of the common law and describing a species of crime cognizable thereat, says: "Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the king's peace, with malice forethought, either expressed by the party, or implied by law, so as the party wounded, or hurt, etc., die of the wound, or hurt, etc., within a year and a day after the same." 3 Coke's Inst. 47. If our statute, embodying parts of sections 1741 and 1751 (B. & C. Comp.), had delineated the commission of an offense and prescribed a punishment as follows: "If any person shall purposely, and of deliberate and premeditated malice, kill another, such person, upon conviction thereof, shall be punished with death," the elements of the common law could undoubtedly be examined, to ascertain the name anciently given to the classification of such crime. State v. DeWolfe, 67 Neb. 321, 93 N.W. 746. In the case last cited, the defendant was charged with maintaining a nuisance by unlawfully exposing the citizens of a village to a contagious disease in negligently keeping an infected person in a public place. A demurrer to the information having been sustained on the ground that the Code of Nebraska particularly sets forth the conduct which constitutes a nuisance and provides a penalty therefor, but did not include the acts complained of, the action was dismissed and the state appealed. In reversing the judgment, Mr. Chief Justice Sullivan says: "In this state all public offenses are statutory, no act is criminal unless the Legislature has in express terms declared it to be so, and no person can be punished for any act or omission which is not made penal by the plain import of the written law. *** But while there are in this state no common-law crimes, the definition of an act which is forbiden by the statute, but not defined by it, may be ascertained by reference to the common law." See, also, Smith v. State (Ohio) 80 Am.Dec. 355; Prindle v. State, 31 Tex.Cr.R. 551, 21 S.W. 360, 37 Am.St.Rep. 833. In the case at bar, the character of the act which constitutes the offense is stated in the statute, and, though the enactment does not define the crime, it specifies the facts which evidence the commission thereof.

It is argued, however, that the only human conduct thus denounced is such as, in the opinion of the courts, might seem "grossly" to injure the person or property of another, or "grossly" to disturb the public peace or "openly" to outrage public decency, thereby necessitating a resort to the principles of the common law to determine whether or not any particular act comes within the prohibition, when recourse should only be had to a statute which clearly defines the behavior inveighed against. Our statute makes it a crime for any person, being armed with a dangerous weapon, to assault another with such instrument (B. & C. Comp. § 1771) without in any manner attempting to define the weapon. "Some weapons under particular circumstances," says Mr. Justice Strahan in State v. Godfrey, 17 Or. 300, 20 P. 625, 11 Am.St.Rep. 830, "are so clearly lethal that the court may declare them to be such as a matter of law." The rule by which the...