State v. Howell

• Decision Date: 19 May 1965
• Parties: STATE of Oregon, Respondent, v. John Harold HOWELL, Appellant.
• Court: Oregon Supreme Court

Page 89

402 P.2d 89

240 Or. 558

STATE of Oregon, Respondent, v. John Harold HOWELL, Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted April 6, 1965.

Decided May 19, 1965.

Edward N. Fadeley, Eugene, argued the cause and filed briefs for appellant.

F. W. Linklater, 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 SLOAN, GOODWIN and HOLMAN, JJ.

SLOAN, Justice.

Defendant appeals from an enhanced penalty imposed upon him as a result of habitual criminal proceedings. He claims he was wronged because the act is discriminately enforced.

The assignments of error are directed at the refusal of the trial court to hear evidence relating to the alleged discrimination. The evidence was properly refused. The same question, in different form, has been before this court before. In State v. Hicks, 1958, 213 Or. 619, at 640, 325 P.2d 794, cert. den. 359 U.S. 917, 79 S.Ct. 594, 3 L.Ed.2d 579 (1959) the court, by Mr. Justice Brand said:

'Defendant has attempted to establish by evidence a conspiracy to wrongfully and intentionally discriminate against him by invoking the Habitual Criminal Act in his case, but not in others. The evidence fails to establish any such concerted and evil action as might bring the case within the purview of the Equal Protection Clause. The trial court committed no error in denying the motion to dismiss. * * *.'

The later cases of State v. Bailleaux, 1959, 218 Or. 356, 343 P.2d 1108, cert. den. 362 U.S. 923, 80 S.Ct. 677, 4 L.Ed.2d 742 (1960); Bailleaux v. Gladden, 1962, 230 Or. 606, 370 P.2d 722, cert. den. 371 U.S. 848, 83 S.Ct. 86, 9 L.Ed.2d 84 (1962); Tuel v. Gladden, 1963, 234 Or. 1, 379 P.2d 553, gave the same answer to the claims of discrimination.

A similar case was presented to the Texas Court of Criminal Appeals where the court answered a claim of discrimination in this language:

'Relator contends that Article 63, Vernon's Ann.P.C., is unconstitutional in that it is not uniformly applied and administered by the different prosecutors throughout the State. He claims that 70% of the accuseds who are indicted under such Article are allowed to plead guilty to the primary offense and that portion of the indictment alleging the prior convictions is dismissed. We are supplied with no proof that relator's figures are accurate, but even if they were this would not render the Act unconstitutional. The fact that a law may not be invoked against others could not in anywise affect its constitutionality because invoked against relator. As written, it is capable of uniform enforcement.' Ex parte Boman, 1954, 160 Tex.Cr.R. 148, 268 S.W.2d 186.

And...