State v. Harmon

• Decision Date: 25 January 1961
• Citation: 225 Or. 571,358 P.2d 1048
• Parties: STATE of Oregon, Appellant, v. Orvil Dean HARMON, Respondent.
• Court: Oregon Supreme Court

Page 1048

358 P.2d 1048

225 Or. 571

STATE of Oregon, Appellant, v. Orvil Dean HARMON, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted Dec. 6, 1960.

Decided Jan. 25, 1961.

Oscar D. Howlett, Deputy Dist. Atty., Portland, argued the cause for appellant. With him on the brief was Charles E. Raymond, Dist. Atty., Portland.

Thomas J. Curran, Portland, argued the cause and submitted a brief for respondent.

Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, SLOAN, O'CONNELL and GOODWIN, JJ.

O'CONNELL, Justice.

Defendant was indicted for the crime of contributing to the delinquency of a minor in violation of ORS 167.210. The indictment specifically charged the defendant with the act of sexual intercourse with an unmarried female child under the age of 18 years. A demurrer to the indictment was interposed on the ground that the statute under which defendant was indicted (ORS 167.210) is unconstitutional in that it denies defendant the equal protection of the laws under both the United States and Oregon Constitutions. U.S.Const. Amend. XIV, § 1; Or.Const. art. 1, § 20. The demurrer was sustained and the indictment was dismissed. The state appeals.

The statute under which defendant was indicted reads as follows:

'167.210 Causing or contributing to delinquency of child. 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.'

A companion statute defining the crime of causing a child to become a dependent child is ORS 167.215 which reads as follows '167.215 Causing child to become or remain dependent. Any person who wilfully does any act which causes or tends to cause any child under the age of 18 years to become a dependent child, as defined by any statute of this state, or to live and conduct himself so as to be or remain a dependent 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.'

The penalty prescribed for the violation of ORS 167.210 is '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.' A violation of this statute is a felony, at least if conviction is followed by a sentence of imprisonment in the penitentiary. ORS 161.030(2). The penalty for the violation of ORS 167.215 is 'a fine of not more than $1,000, or by imprisonment in the county jail for a period not exceeding one year, or both.' A violation of this statute is a misdemeanor only. ORS 161.030(3).

It will be noted that in each case the statute is made applicable to a delinquent or dependent child, as the case may be, 'as defined by any statute of this state.' Prior to the enactment of chapter 432 of Oregon Laws 1959, the definition of a delinquent child and a dependent child were found in ORS 419.502, which read as follows:

'419.502 Definitions. (1) 'Delinquent child' includes any child under the age of 18 years who violates any law of this state or any city or village ordinance, or who is incorrigible, or who is a persistent truant from school, or who associates with criminals or reputed criminals, or vicious or immoral persons, or who is growing up in idleness or crime, or who frequents, visits, or is found in any disorderly house, bawdy house or house of ill fame, or any house or place where fornication is enacted, or in any saloon, barroom or drinking shop or place, or any place where spirituous liquors, or wine, or intoxicating or malt liquors are sold at retail, exchanged or given away, or who patronizes, frequents, visits or is found in any gaming house, or in any place where any gaming device is or shall be operated.

'(2) 'Child dependency,' 'dependent children' and 'neglected children,' unless otherwise required by context, have the meaning given those terms by ORS 419.102.' ¹

When the new juvenile code was adopted in 1959 ORS 419.502 was repealed and ORS 419.476 was enacted. ORS 419.476 reads as follows:

'419.476 Children within jurisdiction of juvenile court. (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 of a law or ordinance of the United States or a state, county or city; or

'(b) Who is beyond the control of his parents or other person having his custody; or

'(c) Whose behavior or condition is such as to endanger his own welfare or the welfare of others; or

'(d) Whose parents or other person having his custody have abandoned him, failed to provide him with the support or education required by law, subjected him to cruelty or depravity or failed to provide him with the care, guidance and protection necessary for his physical, mental or emotional well-being; or

'(e) Who has run away from his home.

'(2) The provisions of subsection (1) of this section do not prevent a court of competent jurisdiction from entertaining a civil action or suit, involving a child.'

At the same session of the legislature ORS 419.101 was enacted:

'419.101 Definitions for ORS 419.102 to 419.140. As used in ORS 419.102 to 419.140, unless the context requires otherwise:

'(1) 'Agency' includes agency, society or institution.

'(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 subsection (1) of ORS 419.476.'

Thus the reference in ORS 167.210 to the definition of a delinquent child 'by any statute of this state' leads us first to ORS 419.101 which in turn refers us to ORS 419.476. But ORS 419.476 does not expressly designate which of the paragraphs of the section are to be regarded as the definition of a delinquent child and which are to be regarded as the definition of a dependent child.

The lower court sustained the demurrer to the indictment on the ground that because ORS 419.476 does not explicitly distinguish between 'dependent' and 'delinquent' children, the acts prohibited by ORS 167.210 (contributing to delinquency) are the same as the acts prohibited by ORS 167.215 (causing dependency) and consequently the district attorney or the grand jury is left with the power to arbitrarily charge either a felony or a misdemeanor simply by selecting the particular statute under which to proceed. The case of State v. Pirkey, 1955, 203 Or. 697, 708, 281 P.2d 698, 703, is relied upon to support this contention. In that case it was held that a 'statute which purports to vest in a grand jury or magistrate the unguided and untrammeled discretion to determine whether a defendant shall be charged with a felony or a misdemeanor, is unconstitutional.'

State v. Pirkey, supra, would be controlling in the present case if the assumption was well taken that ORS 419.101 and ORS 419.476 when read together abolish the legal distinction between dependent and delinquent children. But we do not so read these statutes. It is obvious in reading ORS 419.476 that paragraphs (a)(b)(c) and (e) describe a delinquent child and that paragraph (d) describes a dependent child. Unless some other statute or a rule of statutory construction precludes the recognition of this obvious distinction, it must be recognized, and if it is so recognized there is no opportunity for the district attorney or the grand jury to decide arbitrarily which of the two statutes (ORS 167.210 or ORS 167.215 ) shall be used as a basis for charging a person with a crime.

Apparently the trial judge felt that since ORS 419.101 combines both the term 'delinquent child' and 'dependent child' in making reference to ORS 419.476, the distinction between the two terms was not intended to be preserved. That is a possible construction of the statute, but the judiciary is not entitled to adopt it if another construction is reasonable which will uphold the constitutionality of the statute. Ashwander v. Tennessee Valley Authority, 1936, 297 U.S. 288, 348, 56 S.Ct. 466, 80 L.Ed. 688; Crowell v. Benson, 1932, 285 U.S. 22, 62, 52 S.Ct. 285, 76 L.Ed. 598; United States v. Delaware & Hudson Co., 1908, 213 U.S. 366, 407-408, 29 S.Ct. 527, 53 L.Ed. 836; Wright v. Blue Mt. Hospital Dist., 1958, 214 Or. 141, 144, 328 P.2d 314; Federal Cartridge Corp. v. Helstrom, 1954, 202 Or. 557, 565, 276 P.2d 720; City of Portland v. Goodwin, 1949, 187 Or. 409, 416, 210 P.2d 577.

An indirect aid in construing ORS 419.476 may be derived from the provisions of ORS 419.509. ORS 419.509 specifies the grounds upon which a child may be committed to an institution for secure custody. The grounds specified are those set forth in paragraphs (a), (b) and (c) of subsection (1) of ORS 419.476, plus a fourth ground that the child be a persistent runaway; the last mentioned ground is substantially identical to paragraph (e) of subsection (1) of ORS 419.476. Thus, ORS 419.509 in specifying grounds for placing of children requiring secure custody in training institutions provides, in effect, that the grounds set forth in paragraphs (a), (b), (c) and (e) are sufficient and that the ground set forth in paragraph (d) is not. This is consistent with, and indicative of, the proposition that the legislature...