State v. Blacker

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: Before McALLISTER; PERRY
• Citation: State v. Blacker, 234 Or. 131, 380 P.2d 789 (Or. 1963)
• Decision Date: 10 April 1963
• Parties: STATE of Oregon, Respondent, v. James L. BLACKER, Appellant.

Page 789

380 P.2d 789

234 Or. 131

STATE of Oregon, Respondent, v. James L. BLACKER, Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted Feb. 4, 1963.

Decided April 10, 1963.

Jerome Noble and Philip Hayter, Dallas, argued the cause and filed a brief for appellant.

Lou L. Williams, former Deputy Dist. Atty. for Polk County, argued the cause for respondent. On the brief was Marvin J. Weiser, Dist. Atty. for Polk County.

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

PERRY, Justice.

The defendant entered a plea of guilty to the crime of assault with a dangerous weapon. Subsequent to the plea of guilty the state filed a pleading designated by the state as an information, which is as follows:

'Comes now MARVIN J. WEISER, the duly elected, qualified and acting District Attorney for Polk County, State of Oregon, and in the name of, and by the authority of, the State of Oregon, informs the Court that the said JAMES L. BLACKER, defendant herein, on the 15 day of May, 1962, was duly and regularly convicted in the Circuit Court of Polk County, State of Oregon, of the crime of ASSAULT WITH DANGEROUS WEAPON, which is a felony as provided in ORS 166.250 (sic);

'That said felony was committed within this State while armed with a pistol capable of being concealed upon the person, without he, the said defendant, having a license or permit to carry said firearm;

'That said pistol is a firearm having a barrel less than twelve inches (12"') in length, as provided in ORS 166.210(1), which is more particularly described as follows: a 9 mm Smith and Wesson Model 39, Semi-automatic pistol bearing serial number 30038.

'That I make this information under and by virtue of the laws of the State of Oregon, and particularly ORS 166.230, for the purpose of carrying into effect the provisions thereof and for the purpose of accusing the said defendant JAMES L. BLACKER, of the commission of the felony while armed with a pistol capable of being concealed upon the person without having a license or permit to carry such pistol, contrary to the statutes in such cases made and provided and against the peace and dignity of the State of Oregon.'

The court thereupon informed the defendant of the subsequent pleading and defendant, in effect, denied that at the time he committed the assault with the dangerous weapon he was armed with 'any pistol, revolver, machine gun or other firearm capable of being concealed upon the person, without having a license or permit to carry such firearm, * * *.' Thereupon the court made findings of fact that the defendant was carrying a concealed weapon, without a license, at the time he committed the assault, and thereupon sentenced the defendant to a term not to exceed 10 years in the state penitentiary for the crime of assault with a dangerous weapon, and further provided that the should be imprisoned an additional five years, pursuant to the provisions of ORS 166.230.

The defendant does not contend that his plea of guilty to the crime of assault with a dangerous weapon is in anywise invalid, but does contend that the court exceeded its jurisdiction when it imposed the additional sentence of five years. This because he was not indicted by a grand jury or tried by a jury relative to the violation of the provisions of ORS 166.230.

Since a trial before the court was had as to the matters alleged in the subsequent information filed by the state, and the court found that the defendant at the time he committed the assault was armed with a pistol capable of being concealed upon the person, and that he had no license or permit to carry such a firearm, the question presented is whether or not the court erred in pronouncing the additional sentence, since there was no allegation in the original information that at the time he committed the crime he was armed with a concealable weapon and unauthorized by law to be so armed.

ORS 166.230, insofar as is material, reads as follows:

'Any person who commits or attempts to commit any felony within this state while armed with any pistol, revolver, machine gun or other firearm capable of being concealed upon the person, without having a license or permit to carry such firearm, upon conviction of the felony or of an attempt to commit the felony, shall, in addition to the punishment prescribed for the crime of which he has been convicted, be punished by imprisonment in the penitentiary for not more than 10 years. Such additional period of imprisonment shall commence upon the expiration or other termination of the sentence imposed for the crime of which he stands convicted and shall not run concurrently with such sentence.'

It is noted that ORS 166.230 does not provide that the carrying of a concealed firearm without a license or permit is in itself a crime. It provides only that the person who commits or attempts to commit any felony while so armed shall suffer a greater penalty than another who has committed a felony not so armed.

The crime of possession of concealed weapons is described and made punishable under ORS 166.250. The legislature therefore clearly intended and provided that ORS 166.230 should be considered as aggravating the felony charged.

The defendant relies upon State v. Waterhouse, 209 Or. 424, 307 P.2d 327. In that case the defendant was charged with the crime of invasion of privacy, and there was set forth in the indictment the allegation that the defendant had been previously convicted of the crime of rape. The allegation of the crime of rape was included, since ORS 167.050 provided that any person who had previously been convicted of a sex crime might be sentenced for the crime of invasion of privacy to a life term in the penitentiary. The majority of the court then held that, since the statute...