State v. Cory
| Decision Date | 20 April 1955 |
| Citation | 204 Or. 235,282 P.2d 1054 |
| Parties | STATE of Oregon, Respondent, v. William Frank CORY, Appellant. |
| Court | Oregon Supreme Court |
Charles O. Porter, Eugene, argued the cause and filed a brief for appellant.
Robert M. Stults, Dist. Atty., Roseburg, argued the cause. With him on the brief was Warren A. Woodruff, Deputy Dist. Atty., Roseburg.
William Frank Cory was indicted, tried and convicted for the violation of § 25-112, O.C.L.A., ORS 166.210, 166.270, which, among other things, forbids convicts from possessing firearms. On December 18, 1953, he was sentenced to four years in the penitentiary. Thereupon the district attorney filed an information charging Cory with being an habitual criminal. After trial a conviction was had on said information. Thereafter the trial court set aside the four-year sentence and imposed a sentence of 15 years in the penitentiary. Defendant appeals.
In the firearms case defendant's two assignments of error lack merit. It is first urged that the court erred in denying defendant's motion for a new trial. The point raised is that the court improperly instructed the jury. Since no exception was taken at the trial to the instruction given the question is foreclosed. It is next argued that defendant was entitled to a new trial because the state had placed a microphone in defendant's cell for the purpose of eavesdropping on the conversation between defendant and his counsel. The occurrence complained of happened after the trial was concluded. The court's refusal to grant a new trial on this ground obviously constituted no error.
Turning to the habitual criminal case, defendant moved in the trial court to quash and dismiss the information filed by the district attorney on the grounds that the Oregon Habitual Criminal Act is unconstitutional as applied to this case. This presents a grave constitutional question involving the Equal Protection Clauses of the state and federal constitutions. The information presented by the district attorney charged defendant with being an habitual criminal in that he had committed three previous felonies, to wit:
'On March 8, 1941, the above named William Frank Cory was convicted of the crimes of Breaking into and Entering a Post Office with Intent to Commit Larceny and Larceny of Government Property in the United States District Court for the Western District of Oklahoma and was sentenced to three years in a federal reformatory;
'On March 8, 1943, the above named William Frank Cory was convicted of the crimes of Breaking into and Entering a Post Office of the United States and Stealing United States Post Office Property in the United States District Court for the Northern District of Texas, Fort Worth Division, and was sentenced to two years in a federal reformatory;
'On August 24, 1949, the above named William Frank Cory was convicted of the crime of Attempted Burglary in the Second Degree in the District Court of the Third Judicial District in and for Salt Lake County, Utah, and was sentenced to six months to ten years in Utah State Prison.'
By ch. 383, Oregon Laws 1951, the legislature amended § 4, ch. 585, Oregon Laws 1947, now ORS 168.040, as follows:
'(1) If at any time within two years after conviction the district attorney of the county in which the conviction was had has reason to believe that the convicted person has previously been convicted within or without this state of any felony, he shall immediately investigate.
* * *'
Under the 1947 act it was the duty of the district attorney to file informations accusing persons of previous felony convictions in all cases, irrespective of the lack of personal violence. It will be seen that the 1951 amendment above quoted gives to the district attorney unbridled discretion to determine whether he will or will not proceed by information against a person who has theretofore been convicted of a felony not involving personal violence.
A scholarly analysis of the Equal Protection Clause of both state and federal constitutions is found in the opinion by Mr. Justice...
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State v. Edmonson
...or the magistrate unlimited discretion to charge either a felony or a misdemeanor for certain bad check violations. In State v. Cory, 204 Or. 235, 282 P.2d 1054 (1955), the same court held unconstitutional an Oregon statute which granted to the district attorney unfettered discretion to det......
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City of Klamath Falls v. Winters
...denied equal protection of the laws for another reason. Citing State v. Pirkey, 203 Or. 697, 281 P.2d 698 (1955), and State v. Cory, 204 Or. 235, 282 P.2d 1054 (1955), defendants contend that the ordinances they were convicted of violating were identical to state criminal statutes covering ......
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State v. Clark
...for some persons, it could not authorize a master fish warden to do so indirectly. 84 Or. at 336, 165 P. 227. And in State v. Cory, 204 Or. 235, 282 P.2d 1054 (1955), the court recognized a violation of article I, section 20 as well as the fourteenth amendment in the wholly standardless adm......
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State v. Waterhouse
...now ORS 168.040, the last, no doubt, induced by our decision holding unconstitutional a portion of § 4 of the 1951 Act. See State v. Cory, 204 Or. 235, 282 P.2d 1054, decided April 20, 1955. Throughout its history, however, since 1927 the habitual criminal law has provided a post trial proc......