State v. Hoffman

• Decision Date: 17 October 1963
• Citation: 385 P.2d 741,236 Or. 98
• Parties: STATE of Oregon, Respondent, v. John Edward HOFFMAN, Appellant.
• Court: Oregon Supreme Court

Page 741

385 P.2d 741

236 Or. 98

STATE of Oregon, Respondent, v. John Edward HOFFMAN, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted at Pendleton, May 7, 1963.

Decided Oct. 17, 1963.

Harold Banta, Baker, argued the cause and filed a brief for appellant.

Jesse R. Himmelsbach, Jr., Dist. Atty. for Baker County, argued the cause and filed a brief for respondent.

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

PERRY, Justice.

The defendant was indicted in two counts for the crimes of statutory rape and contributing to the delinquency of a minor. A jury acquitted the defendant of the crime of statutory rape and returned a verdict of guilty on the contributing charge. From the verdict of guilty the defendant appeals.

The defendant contends that since the jury acquitted him of the crime of statutory rape, and that act is the act relied upon as the act manifestly tending to cause the minor child's delinquency, this acquittal is res judicata of the facts relied upon to sustain the guilty verdict returned.

Two separate and distinct statutory offenses are alleged in the indictment, though they arise out of the same occasion. The contention of the defendant, to be sustained, must rest upon the proposition that all the facts offered in an attempt to establish the offense of statutory rape on this occasion were by the verdict of not guilty decided favorably to the defendant. This is not the law, as pointed out by this court in State of Oregon v. Dewey, 206 Or. 496, 292 P.2d 799. We quoted with approval, as follows:

'* * * 'the previous judgment is conclusive only as to those matters which were in fact in issue and actually or necessarily adjudicated. Thus an acquittal of the charge of seduction does not adjudicate the question of sexual intercourse although that was one of the issues in the case, since the acquittal might have been due to the failure to establish other facts essential to a conviction.' 2 Freeman on Judgments (5th ed.) 1365 § 648. See, also, Dangel, Criminal Law 351; Harris v. State, 193 Ga. 109, 17 S.E.2d 573, 147 A.L.R. 980; State v. Barton, 5 Wash.2d 234, 105 P.2d 63; Sealfon v. United States, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180; United States v. Meyerson, D.C., 24 F.2d 855; United States v. Morse, D.C., 24 F.2d 1001; State v. Erwin, 101 Utah 365, 120 P.2d 285; Bell v. State, 57 Md. 108; State v. Coblentz, 169 Md. 159, 180 A. 266, 185 A. 350.' (206 Or. 496 at 508, 292 P.2d at page 805.)

The statutory rape indictment charges the defendant with carnal knowledge of the minor. The contributing count in the charging part is as follows: '* * * to-wit, did then and there place his private parts on, against and into the private parts' of the minor. The contributing count thus charges two acts; placing his private parts upon and against the private parts of the female child, and also penetration of her body.

Proof of some penetration is a necessary element of statutory rape. State v. Poole, 161 Or. 481, 90 P.2d 472. And a specific intent to penetrate the body of the female is a necessary ingredient of any lesser included offense in that crime or of the crime attempt to rape. State of Oregon v. Moore, 194 Or. 232, 241 P.2d 455; State v. Olsen, 138 Or. 666, 7 P.2d 792.

ORS 167.210 which defines the crime of contributing to the delinquency of a child nowhere requires proof of a specific intent to cause the child to become a delinquent child, even though that intent may exist. Proof only of the doing of an act which is such that it manifestly tends toward causing the child to become delinquent is all that is required.

We held in State v. Casson, 223 Or. 421, 354 P.2d 815, that where the state elects to charge a defendant with contributing to the delinquency of a minor by 'separate and distinct acts laid under a videlicet, 'to-wit:',' each act standing alone, if proven, must be sufficient to sustain a verdict of guilty.

Proof of the defendant placing his private parts upon and against those of the minor child, standing alone, would suffice to sustain a verdict of guilty of contributing. But this act alone, as pointed out, would not require a conviction for rape or necessarily its lesser included offense or the crime attempt to rape.

The jury could have concluded that the defendant did the first act charged in the contributing count, but neither did nor intended to go further, and thus did acquit the defendant. We cannot therefore say the jury decided the placing fact in favor of the defendant. We conclude the defendant's contention is without merit.

The defendant also contends that the trial court erred in proceeding under the enhanced penalty act before sentencing the defendant for the crime of contributing of which he was convicted. This same contention was made under a prior act, OCLA 26-2801 to 26-2804, and found without merit. State v. Dirham, 177 Or. 574, 164 P.2d 448, 162 A.L.R. 422. The defendant contends, however, the 1961 amendment to ORS Chapter 168 was intended to change the law in this respect. His principal reliance seems to be upon the use of the word 'adjudication' in ORS 168.015 which does not appear in the former act.

The word 'adjudication' in its strict judicial sense is generally held to imply a final judgment of the court, that is, it involves an exercise of the judicial power in hearing and determining the issues and rendering a judgment thereon. 2 C.J.S. Adjudication, page 49. This statute insofar as material is as follows:

'(1) 'Conviction' means an adjudication of guilt upon a plea, verdict or finding in a criminal proceeding in a court of competent jurisdiction, but 'conviction' does not include an adjudication which has been expunged by pardon, reversed, set aside or otherwise rendered nugatory.

'(2) 'Principal offense' means the offense upon conviction of which a court may impose an enhanced penalty based upon former conviction of an offense. 'Principal felony' means a principal offense that is a felony. * * *' ORS 168.015.

It will be noted the word 'adjudication' in the definition of conviction refers to prior crimes, as it limits the prior conviction to be considered as enhancing the penalty for the subsequent conviction, or principal offense, to those adjudications which have not been expunged or rendered nugatory.

Paragraph (2) makes no reference to an 'adjudication' in any manner as to the principal offense. Principal offense is defined as a conviction in a present action which will authorize the court to impose an enhanced penalty. Thus it refers to the finding of guilt either by plea in open court or the verdict of the jury in a matter then pending. Conviction, when used in this sense, is to designate a particular stage in a criminal prosecution where the guilt of the defendant has been established. Commonwealth v. Lockwood, 109 Mass. 323, 12 Am.Rep. 699; In re Anderson, 34 Cal.App.2d 48, 92 P.2d 1020; Attorney General ex rel. O'Hara v. Montgomery, 275 Mich. 504, 267 N.W. 550. Paragraph (2) clearly shows the intent of the act to be that the sentence upon the principal offense should be pronounced according to the law applicable to the facts found by the court as to prior convictions. This could not be done until the supplementary proceedings provided by the act had been heard and determined.

The defendant also contends that he is constitutionally entitled to a jury trial on the issue of whether or not he had been convicted of prior crimes. Article I, Section 11 of the Oregon Constitution provides: 'In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury * * *.' The defendant then argues that since the habitual criminal act is a supplementary proceeding to follow a conviction, and therefore 'a continuation of the original prosecution' (State v. Durham, supra), the issue involved as to his prior crimes falls within the requirements of Article I, Section 11 of the Constitution.

It is true that at common law a prior conviction was regarded as a part of an indictment which must be established when the Crown sought to invoke an enhanced penalty for the crime charged and no procedure otherwise had been established by legislative action. State v. Blacker, 76 Or.Adv.Sh. 501, Or., 380 P.2d 789; State v. Waterhouse, 209 Or. 424, 307 P.2d 327.

The legislature, after setting forth what must be alleged to state a crime (ORS 132.540), also stated therein 'that the indictment shall not contain allegations that the defendant has previously been convicted of the violation of any statute which may subject him to enhanced penalties.' Thus the legislature provided a change in the procedure with reference to the pleading of prior convictions of crimes. Contrary to the common-law view, prior convictions are not now an ingredient of any offense against the state, but are to be considered only in determining the sentence to be pronounced by the court.

The legislature has never declared that being an habitual criminal is a crime. As stated by ...