State v. Bailey

• Decision Date: 16 June 1925
• Citation: 115 Or. 428,236 P. 1053
• Parties: STATE v. BAILEY.
• Court: Oregon Supreme Court

236 P. 1053

115 Or. 428

STATE v. BAILEY.

Supreme Court of Oregon

June 16, 1925

Department 2.

Appeal from Circuit Court, Multnomah County; George Tazwell, Judge.

Julius Bailey was convicted of nonsupport, and he appeals. Affirmed.

Chriss A. Bell, of Portland, for appellant.

Jay H Stockman, Deputy Dist. Atty. (Stanley Myers, Dist. Atty., of Portland, on the brief), for the State.

BROWN J.

This is a criminal proceeding, wherein Julius Bailey was convicted of the crime of nonsupport and sentenced to six months' imprisonment in the county jail, under the following statute:

"Any person who, without just or sufficient cause, shall fail or neglect to support his wife, or female children under the age of eighteen years, or male children under the age of sixteen years, shall be deemed guilty of a felony and shall be punished therefor by confinement in the state prison for not more than one year, or by imprisonment in the county jail for not less than thirty days nor more than one year." Or. L. § 2166.

The defendant demurred to the indictment on the ground that the charge contained therein failed to state facts sufficient to constitute a crime, and, to sustain his demurrer, contended that the indictment failed to state the acts and set forth the particular circumstances of the crime charged in accordance with the commands of sections 1437, 1448, Or. L.; that the indictment was vague and indefinite and did not inform the defendant of the nature and cause of the accusation as commanded by section 11, art. 1, Oregon Constitution; and, that section 2166 was violative of section 1, art. 14, Constitution of the United States, and of the fifth and sixth amendments thereof, and of section 20, art 1, and section 1, art. 4, Oregon Constitution.

On appeal to this court, the defendant asserts that section 2166, Or. L., is unconstitutional, and that for this reason the trial court erred in overruling the demurrer. Among his alleged reasons for attacking the statute is his assertion that it violates the fifth and sixth amendments of the United States Constitution. This contention may be dismissed with the observation that these provisions contain no restriction on the powers of the state to legislate. State v Laundy, 103 Or. 443, 204 P. 958, 206 P. 290, and authorities there cited. However, the salutary provisions of these amendments have been carried into our state Constitution and most of them may be found in the different sections of article 1 thereof.

The defendant contends that the statute involved herein is so indefinite that its meaning cannot be understood from its words. The rules of construction applying to civil statutes likewise apply to criminal statutes. The paramount rule of statutory construction, then, requires that we ascertain and give legal effect to the expressed intention contained in the statute. A criminal offense cannot be created by inference or implication. Nor can the embrace of a criminal statute reach beyond the plain import of the language used. State v. Le Blanc, 115 Me. 142, 98 A. 119. A valid criminal law must definitely show with reasonable certainty what acts or omissions the law-making body intended to prohibit and punish. 1 Cyclopedia of Criminal Law, Brill, § 62. But reasonable definiteness in view of the conditions is all that is required. State v. Lawrence, 9 Okl. Cr. 16, 130 P. 508; State v. Schaeffer, 96 Ohio, 215, 117 N.E. 220, L. R. A. 1918B, 945, Ann. Cas. 1918E, 1137. Moreover, under this statute, the dividing line between what is lawful and what is unlawful is not left to conjecture.

Subject to the prohibitions of the federal and state Constitutions, the legislative assembly of the state has power to declare what acts or omissions shall constitute a crime. An examination of our session laws will disclose that every legislative assembly creates new offenses that were before unknown, and renders criminal certain acts and omissions which, prior to the enactments of that session, were innocent in their nature. The power to denounce as a crime the omission of a husband to support his wife and children was exercised by the legislative body in the enactment of the statute under consideration, and was not delegated to the trial judge or jury as contended by counsel for defendant.

Section 11 of article 1, Oregon Constitution, would be ineffectual and unavailing if the indictment and statute did not inform the defendant of the nature and cause of the accusation against him. As a general rule, an indictment is sufficient when it alleges the acts constituting the crime charged, in the words of the statute defining the crime. State v. Scott, 63 Or. 444, 128 P. 441. This is familiar law in our jurisdiction. Again, an indictment can rise no higher than the statute, which is its source; and statutes so indefinite and uncertain as to fail to inform the defendant of the nature of the charge against him are universally held by the courts to be void. A criminal statute should be couched in plain and concise language, so that every man of ordinary intelligence may know when he has or has not violated the law. We need cite no authorities in support of our holding that the Legislature cannot legally enact a law in violation of the limitations of our Constitution. But, in language that any man of ordinary intelligence can understand, the act in question denounces as criminal a husband's omission to support his wife and children. The meaning of the term "support" has been judicially determined in this jurisdiction, and is well understood, as are the words "just or sufficient cause," as used in the...