State v. Holland
| Decision Date | 08 December 1954 |
| Citation | 202 Or. 656,277 P.2d 386 |
| Parties | STATE of Oregon, Respondent, v. Oscar HOLLAND, Appellant. |
| Court | Oregon Supreme Court |
Roy Kilpatrick, Canyon City, argued the cause for appellant. With him on the brief were Rob't D. Lytle and W. F. Schroeder, Vale.
Clifford B. Olsen, Canyon City, Deputy Dist. Atty., for Grant County, argued the cause for respondent. With him on the brief was Michael S. Mogan, Canyon City, Dist. Atty., for Grant County.
Before WARNER, Acting C. J., and LUSK, BRAND and PERRY, JJ.
The defendant was charged with the crime of murder in the second degree. He entered a plea of not guilty, was tried by a jury, and found 'guilty * * * as charged in the indictment.' He was sentenced, and now appeals. The indictment reads as follows:
'Oscar Holland is accused by the Grand Jury of the County of Grant by this Indictment of the crime of murder in the 2nd degree, committed as follows:
'The said Oscar Holland on the 31st day of October, 1953, in the said County of Grant, and State of Oregon, then and there being, did then and there purposely, and maliciously, kill Braskell Merle Wright, by then and there cutting and stabbing him, the said Braskell Merle Wright, about the neck and body with a knife. contrary to the statutes * * *.'
The first assignment of error reads as follows:
'The trial court lacked jurisdiction to try the defendant because Section 23-402 OCLA under which the indictment was brought was repealed before the trial began.'
Defendant contends that the 1953 legislature, by enacting Oregon Revised Statutes without a saving clause, granted a legislative pardon to the defendant. On 31 October 1953, the date of the alleged crime, the following statute was in full force and effect:
'If any person shall purposely and maliciously, but without deliberation and premeditation, or in the commission or attempt to commit any felony, other than rape, arson, robbery, or burglary, kill another, such person shall be deemed guilty of murder in the second degree.' O.C.L.A. § 23-402.
The statute remained in effect at the time of arraignment and plea of not guilty, but on 31 December 1953 the Oregon Revised Statutes went into effect pursuant to the provisions of Oregon Laws 1953, ch. 3. The defendant was tried on 4 January 1954.
The crime of murder in the second degree, so far as relevant here, is defined in Oregon Revised Statutes as follows:
'(1) Any person who kills another purposely and maliciously but without deliberation and premeditation, or in the commission or attempt to commit any felony other than rape, arson, robbery or burglary, is guilty of murder in the second degree. * * *' ORS 163.020.
Comparison of O.C.L.A. § 23-402 with ORS 163.020 discloses that the essential elements of the crime have not been changed.
The duties of the Statute Revision Council were set forth by statute:
Oregon Laws 1949, Chapter 317, Section 3.
In defining second degree murder the revisors clearly complied with the direction that they should not 'alter the sense, meaning or effect' of the previous statute on the subject.
Defendant relies upon the provisions of Oregon Laws, Chapter 3, now ORS 174.520 to and including 174.560, as granting to defendant a 'legislative pardon.' We quote the relevant portions:
'(1) All statute laws of Oregon of a general, public and permanent nature enacted prior to January 12, 1953, hereby are repealed, except as provided in subsection (2) of this section.
'(2) If any provision of the Oregon Revised Statutes as enacted by ORS 174.510, derived from an Act that amended or repealed a pre-existing statute, is held unconstitutional, the provisions of subsection (1) of this section shall not prevent the pre-existing statute from being law if that appears to have been the intent of the Legislative Assembly or the people.' ORS 174.520.
'The Oregon Revised Statutes, as enacted by ORS 174.510, are intended to speak for themselves; and all sections of the Oregon Revised Statutes as so enacted shall be considered to speak as of the same date, except that in cases of conflict between two or more sections or of an ambiguity in a section, reference may be had to the Acts from which the sections are derived, for the purpose of applying the rules of construction relating to repeal or amendment by implication or for the purpose of resolving the ambiguity.' ORS 174.530.
'The provisions of the Oregon Revised Statutes as enacted by ORS 174.510 shall be considered as substituted in a continuing way for the provisions of the prior statute laws repealed by ORS 174.520.' ORS 174.550. (Emphasis ours.)
It is clear, as contended by the defendant, that Oregon Revised Statutes were adopted as laws, and not merely as evidence of the law. See 1 ORS, Preface, pp. V and VI.
"* * * A revision, on the other hand, contemplates a redrafting and simplification of the entire body of statute law. It involves the elimination of duplications, contradictions, obsolete and obsolescent provisions, redundant, tautological, prolix and verbose provisions. A revision is a complete restatement of the law. It requires enactment by the legislature in order to be effective and upon enactment it becomes the law itself, replacing all former statutes.' See 59 C.J. 888; 25 R.C.L. 924.' Fidelity & Columbia Trust Co. v. Meek, 294 Ky. 122, 171 S.W.2d 41, 44.
The fact, however, that ORS was enacted as law, and that the previous statutes were repealed, is not decisive of the case. The pronouncement of the Massachusetts Supreme Court is applicable here:
* * *' Commissioner of Public Works v. Cities Service Oil Co., 308 Mass. 349, 32 N.E.2d 277, 283.
And see State v. Rogers, 122 N.J.L. 490, 6 A.2d 207, Id., 126 N.J.L. 428, 19 A.2d 886.
Counsel cites State v. Ju Nun, 53 Or. 1, 97 P. 96, 98 P. 513, 514, to the following effect:
'* * * the repeal of a law conferring jurisdiction takes away all right to proceed, under the repealing statute, as to all actions, suits, or proceedings pending that time of the repeal, unless there is a saving clause in the repealing statute and this is so in an appellate as well as the court of original jurisdiction. * * *'
That case bears no resemblance to the one at bar. Defendant had been tried on an information and convicted. While the case was pending on appeal, the constitution was amended (June 1908) so as to provide that "no person shall be charged in any circuit court * * * except upon indictment * * *." It was held that the amendment was prospective only and the conviction was affirmed.
The portion quoted by appellant correctly states the law as to ordinary repeals of statutes previously enacted. It does not purport to state the effect of a law which repeals and simultaneously reenacts a statutory provision. The rule in the latter case is stated in American Jurisprudence:
* * *' 50 Am.Jur., Statutes, § 555, p. 559.
Thus it is immaterial whether a single statute is repealed and simultaneously re-enacted or whether many statutes are repealed and simultaneously re-enacted in a general statutory revision.
Referring to Sutherland on Statutory Construction, we...
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State v. Montez
...of his trial was untimely, and the trial court did not err in denying his motion for acquittal on that ground. See State v. Holland, 202 Or. 656, 666-67, 277 P.2d 386 (1954); State v. Smith, 182 Or. 497, 507-08, 188 P.2d 998 Defendant next contends that the trial court erred in denying his ......
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State v. Jackson
...enactment, and not merely a compilation of prior law, State v. Davis, 1956, 207 Or. 525, 296 [224 Or. 343] P.2d 240; State v. Holland, 1954, 202 Or. 656, 277 P.2d 386, we are under a duty to defer to the legislative rule of construction. Moreover, ORS 174.040 does no more than to codify wha......
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Eckles v. State
...Revised Statutes." Although textual changes were made, no substantive changes in the laws were intended. See State of Oregon v. Holland, 202 Or. 656, 661-65, 277 P.2d 386 (1954).14 Section one of the Transfer Act is a statement of legislative findings and legal conclusions. Section five is ......
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