State v. Franzone

• Decision Date: 03 June 1966
• Citation: 243 Or. 597,415 P.2d 16
• Parties: STATE of Oregon, Respondent, v. Frank FRANZONE, Appellant.
• Court: Oregon Supreme Court

Page 16

415 P.2d 16

243 Or. 597

STATE of Oregon, Respondent, v. Frank FRANZONE, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted April 4, 1966.

Decided June 3, 1966.

Julian Herndon, Jr., Portland, for appellant.

George J. Joseph, Deputy Dist. Atty., Portland, argued the cause for respondent. With him on the brief was George Van Hoomissen, Dist. Atty. ,

Before mc,ALLISTER, C.J., and PERRY, SLOAN, GOODWIN, DENECKE, HOLMAN, and LUSK, JJ.

LUSK, Justice.

The defendant was indicted for violation of ORS 161.310, generally known as the nuisance statute. ¹

Defendant demurred to the indictment on various grounds and the demurrer was overruled. The parties thereafter entered into a so-called stipulation of facts, which, however, consists only of a repetition of the allegations of the indictment. Trial was had on such stipulation before the court without a jury and the court entered a judgment of conviction from which the defendant appeals.

The indictment alleges:

'FRANK FRANZONE is accused by the Grand Jury of the County of Multnomah and State of Oregon, by this indictment of the crime of COMMITTING AN OFFENSE WHICH OPENLY OUTRAGES THE PUBLIC DECENCY committed as follows:

'The said FRANK FRANZONE on or about the 15th day of January, A.D. 1964, and on divers other days and times between that day and the day of presentment of the within indictment in the County of Multnomah, State of Oregon, did unlawfully, wilfully and wrongfully commit a certain act which openly outraged the public decency and was injurious to public morals, in that the said FRANK FRANZONE did obtain money of the United States of America from persons charged with violations or motor vehicle traffic laws and ordinances in courts within the State of Oregon, upon the representation and claim that he, the said FRANK FRANZONE, would obtain dispositions of the aforesaid motor vehicle traffic violation charges favorable to the persons so charged, and such dispositions to be had other than pursuant to the due course of law, and the said FRANK FRANZONE did obtain money of the United States of America from one Robert Wrenn upon the representation and claim that he, the said FRANK FRANZONE, would obtain a disposition favorable to the said Robert Wrenn of a motor vehicle traffic violation charge then pending against the said Robert Wrenn in a court within the State of Oregon, and such disposition to be had other than pursuant to the due course of law, and the said FRANK FRANZONE did obtain money of the United States of America from one Dennis Arant upon the representation and claim that he, the said FRANK FRANZONE, would obtain a disposition favorable to the said Dennis Arant of a motor vehicle traffic violation charge then pending against the said Dennis Arant in a court within the State of Oregon, and such disposition to be had other than pursuant to the due course of law, and the said FRANK FRANZONE did obtain money of the United States of America from one Leonard Tucker upon the representation and claim that he, the said FRANK FRANZONE, would obtain a disposition favorable to the said Leonard Tucker of a motor vehicle traffic violation charge then pending against the said Leonard Tucker in a court within the State of Oregon, and such disposition to be had other than pursuant to the due course of law, contrary to the Statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.

'* * *'

Defendant assigns as error the ruling on the demurrer. He contends that ORS 161.310 is unconstitutional--that it is 'void for vagueness,' and a conviction under it violates the due process clause of the Fourteenth Amendment of the Constitution of the United States.

The nuisance statute has been part of the law of this state since 1864, and, as hereinafter shown, has been applied to various classes of conduct in cases that have come to this court. The statute was attacked for vagueness, though not apparently on constitutional grounds, in State v. Ayers, 49 Or. 61, 88 P. 653, 10 L.R.A.,N.S., 992, 124 Am.St.Rep. 1036. The constitutionality of the statute seems to have been first directly challenged in 1954, in the case of State v. Elliott, 204 Or. 460, 277 P.2d 754, in which we held that the maintenance and operation of an abortion clinic was an offense under the statute and that the statute was constitutional as applied to that case. The court reasoned that, since it had been previously determined in State v. Atwood, 54 Or. 526, 102 P. 295, 104 P. 195, 21 Ann.Cas. 516, that the act charged was covered by the statute, the defendant was sufficiently advised of its illegality. That reasoning, whether valid or not, is, of course, without application to the case at bar. The question was raised again in the brief of the defendant in State v. Dewey, 206 Or. 496, 292 P.2d 799, another abortion clinic case, but on the oral argument was waived.

We regard the question of the constitutionality of ORS 161.310 as still an open one, particularly in view of recent decisions of the Supreme Court of the United States. ² But, in obedience to the established rule that courts will not decide constitutional questions if the case can be properly determined on other grounds, we will not now pass on the question of the constitutionality of the statute, for we are of the opinion that the conduct described in the indictment does not fall within its embrace, and the indictment, therefore, does not state a crime.

As we read the indictment, it alleges that the defendant obtained money from three named persons who were charged with violations of the motor vehicle traffic laws and ordinances within this state, on the representation that he would obtain a disposition of their cases favorable to such persons 'other than pursuant to the due course of law.' Defendant argues that the quoted language is vague and uncertain, but we may assume for present purposes that it is sufficiently definite. It is not alleged that the defendant did obtain such favorable disposition of the cases or that he failed to do so. The gist of the charge seems to be obtaining of money for a promise to accomplish an unlawful purpose, i.e., an interference, in some manner not stated, with the orderly administration of justice. As the state's brief puts it: 'The gist of the offense charged here is that defendant held himself out as a 'fixer' for a price.'

The nuisance statute, as this court has frequently said, was intended to cover offenses against the public peace, the public health and the public morals not elsewhere made punishable by the criminal statutes and which were known at common law as indictable nuisances: State v. Anderson, Or., 410 P.2d 230, 232, and cases there cited.

The statute includes three classes of offenses, namely, an act which 'grossly injures the person or property of another,' an act which 'grossly disturbs the public peace or health,' and an act which 'openly outrages the public decency and is injurious to public morals.'

In this case we are not concerned with either the first or the second class of conduct. The sole contention of the state is that the defendant, as the indictment alleges, 'did unlawfully, wilfully and wrongfully commit a certain act which openly outraged the public decency and was injurious to public morals.' It should first be noticed that this clause is in the conjunctive. The act must both openly outrage the public decency and be injurious to public morals: Allen v. Norton, 6 Or. 344. For the decision of this case it is necessary to determine only what is meant by the former of these elements, that is to say, what are the contours of the prohibition of an act which grossly outrages the...