State v. Gordineer
| Decision Date | 15 November 1961 |
| Citation | 366 P.2d 161,229 Or. 105 |
| Parties | STATE of Oregon, Respondent, v. Harley GORDINEER, Appellant. |
| Court | Oregon Supreme Court |
A. J. Morris, Eugene, argued the cause and submitted a brief for appellant.
Robert J. McCrea, Deputy Dist. Atty., Eugene, argued the cause for respondent. With him on the brief was William F. Frye, Dist. Atty., Eugene.
Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, SLOAN, O'CONNELL and GOODWIN, JJ.
The defendant was indicted for the crime of contributing to the delinquency of a minor. The jury returned a verdict of guilty and defendant appeals.
The indictment charges two acts by the defendant as acts tending to cause any minor to become a delinquent child. In this appeal we are concerned with only one of the acts charged, and that is that the defendant 'did then and there wilfully give alcoholic liquor to said child.'
The court instructed the jury in pertinent part as follows:
'Whether or not Janice Marlene Collins is a child under the age of eighteen years, and whether or not the defendant committed any of the acts charged in the indictment, and whether or not any of the acts charged in the indictment were committed in Lane County, Oregon, and whether or not such acts, if committed, manifestly tended to cause Janice Marlene Collins to become a delinquent child, are all questions of fact for you to determine from all of the evidence before you, applying the principles of law with which I am now instructing you.
'There is a statute in the State of Oregon which provides: 'Any person who by threats, commands, or persuasion endeavors to induce any child to do or perform any act, or follow any course of conduct, which shall cause such child to become a delinquent child, or that any person who shall do any act which manifestly tends to cause any child to become a delinquent child, shall be guilty of a crime.'
'Pursuant to another statute in the State of Oregon, you may find that a child has become a delinquent child if the child has committed an act which is a violation, or which if done by an adult, would constitute a violation of a law or ordinance of the United States, or State, or County, or City; and likewise, you may find that a child is a delinquent child if that child's behavior is such as to endanger has own welfare or the welfare of others.'
To this instruction the defendant excepted as follows:
The statutes to which the court had reference are as follows:
ORS 167.210 'When a child is a delinquent child as defined by any statute of this state, any person responsible for, or by any act encouraging, causing or contributing to the delinquency of such child, or any person who by threats, command or persuasion, endeavors to induce any child to perform any act or follow any course of conduct which would cause it to become a delinquent child, or any person who does any act which manifestly tends to cause any child to become a delinquent child, shall be punished upon conviction by a fine of not more than $1,000, or by imprisonment in the county jail for a period not exceeding one year, or both, or by imprisonment in the penitentiary for a period not exceeding five years.'
ORS 419.101 'As used in ORS 419.102 to 419.140, unless the context requires otherwise:
* * *
* * *
'(2) 'Child delinquency,' 'delinquent child,' 'child dependency' and 'dependent child' mean a person under 18 years of age whose conduct or condition is such as to fall within the provisions of paragraphs (a) to (e) of sub-section (1) of ORS 419.476.'
ORS 419.476 '(1) The juvenile court has exclusive original jurisdiction in any case involving a person who is under 18 years of age and:
'(a) Who has committed an act which is a violation, or which if done by an adult would constitute a violation, or a law or ordinance of the United States or a state, county or city; or
* * *
* * *
'(c) Whose behavior or condition is such as to endanger his own welfare or the welfare of others; or * * *.'
The defendant's contention is that since ORS 471.430 provides:
'* * * No person under the age of 21 years shall purchase, acquire or have in his or her possession alcoholic liquor in a manner other than provided for in the Liquor Control Act.'
then the act alone of the giving of alcoholic liquor to a minor establishes the crime of contributing to the delinquency of a minor, because when the minor accepts the liquor he is committing an illegal act.
Defendant further contends that since ORS 471.410 provides:
'* * * No person other than a parent, guardian, or other responsible relative, shall give any alcoholic liquor to any person under the age of 21 years. * * *'
and since the punishment for violation of that statute is misdemeanor, that there are two separate statutes which define the same crime, one making it a felony and the other a misdemeanor. He points out that the district attorney is thereby granted the power, at his election, to charge one person with an offense under the one statute and another with an offense under the other statute though the identical act is committed by each of the persons charged. This being so, says the defendant, his constitutional right of equal protection of the laws under both the Federal and State Constitutions is violated. State v. Pirkey, 203 Or. 697, 281 P.2d 698; State v. Cory, 204 Or. 235, 282 P.2d 1054.
The first portion of ORS 167.210 condemns those who by threats, commands or persuasion seek to have the child become a delinquent; the latter...
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