State v. Moore

• Decision Date: 27 June 1951
• Citation: 233 P.2d 253,192 Or. 39
• Parties: STATE v. MOORE.
• Court: Oregon Supreme Court

Page 253

233 P.2d 253

192 Or. 39

STATE v. MOORE.

Supreme Court of Oregon.

Argued May 1, 1951.

Decided June 27, 1951.

Glenn R. Jack, of Oregon City, argued the cause for appellant. With him on the brief was James O. Goodwin, of Oregon City.

Courtney R. Johns, ¹ Deputy Dist. Atty., of Albany, argued the cause for respondent. With him on the brief was Melvin Goode, ² Dist. Atty., of Albany.

Before BRAND, C. J., and HAY, LUSK, LATOURETTE and WARNER, JJ.

WARNER, Justice.

On March 8, 1946, the defendant, Roy Moore, was convicted in Linn county, Oregon, for the crime of burglary and the crime of larceny, and on the 12th day of March, 1946, was sentenced to imprisonment in the Oregon state penitentiary without limitation of time for a maximum of five years on the first count and for a maximum of ten years on the second count, said sentences to run concurrently. We affirmed that conviction on defendant's appeal in State v. Moore, 180 Or. 502, 176 P.2d 631, 177 P.2d 413, whereupon he filed a petition in the Supreme Court of the United States for a writ of certiorari, which was denied on October 13, 1947, 332 U.S. 763, 68 S.Ct. [192 Or. 42] 68, 92 L.Ed. 349. A mandate on the judgment in this court was thereafter filed in the circuit court of Linn county on November 8, 1947.

Shortly after, the defendant Moore surrendered himself to the warden of the state penitentiary. The State in its brief claims that defendant's incarceration began on November 12, 1947. We are unable to find in the record anything which supports that particular date as the date of the beginning of defendant's sentence. We are, however, able to say with certainty that the date was between November 8 and November 30 of that year. On January 8, 1949, the then governor of the state of Oregon commuted the terms of defendant's imprisonment to 'one (1) year, eight (8) months, and twenty-four (24) days.' The defendant was released from the state penitentiary on the same day. Thereafter, on January 22, 1949, the district attorney of Linn county filed an information under § 26-2804, O.C.L.A., charging the defendant with being a habitual criminal in that, previous to his last conviction on March 8, 1946, in Linn county, Oregon, he had been convicted of three other felonies; the crimes of burglary and burglary not in a dwelling house, both in Baker county, Oregon, in 1940; and the crime of burglary in the state of Wyoming in 1911.

The defendant, upon being duly arraigned upon the charge in the information, pleaded not guilty and thereafter, pursuant to the defendant's request and with his consent, a trial was had before the court without a jury. After hearing the evidence and entering findings establishing the identity of the defendant and his previous convictions for felonies as specified in the information, the court thereupon vacated the sentence of ten years imposed upon the defendant on the 12th day of March, 1946, and sentenced him for the term of his natural life. From the judgment of life sentence the defendant has appealed. He alleges but two errors, which we will consider in the order of their presentation.

The defendant first argues that this proceeding is tantamount to placing him twice in jeopardy for the same offense. Notwithstanding that we have previously held, and again reiterate, that the plea of former jeopardy has no application to a habitual criminal proceeding, since being a habitual criminal is not an offense but merely a status, State v. Durham, 177 Or. 574, 582, 164 P.2d 448, 162 A.L.R. 422, we think it but fair that we avail ourselves of the opportunity to clarify this disputed point in terms of the facts shown by the record.

Defendant premises this proposition upon the claim that he had completely served the term of the sentence of his last conviction at the time the information under the Habitual Criminal Act, §§ 26-2801 through 26-2804, O.C.L.A., was filed. It is his contention that January 8, 1949, marks the last day of his sentence as commuted. We cannot join in that conclusion.

Defendant has elected to rest his claim upon the bald and unsupported assertion that his sentence was terminated coincident with the date of his commutation, but fails to supply us with any computation explaining how he fixes the terminal date of his sentence.

Unfortunately, there is nothing in the record to establish the precise day in November, 1947, when the defendant Moore began his last sentence in the state penitentiary. We are able to say, however, that it was some time between the 8th and the 30th of November, 1947. If, for example, we arbitrarily take November 12, as contended for by the State, the defendant had served one year, one month and twenty-seven days of his original sentence as of the date that his sentence was commuted by the governor to 'one (1) year, eight (8) months, and twenty-four (24) days.' Taking any day in November, 1947, after the 8th day of that month, it is readily ascertainable that as of January 22, 1949, the date of the filing of the information under the Habitual Criminal Act, the defendant still had approximately six months to serve on his sentence as commuted by the governor on January 8 of that year. If we were at liberty to give the defendant the full amount of credit to which he might have been entitled under § 23-1413, O.C.L.A., for every month or fraction thereof that he served between the date of his prison entry and the date upon which his sentence was commuted, he would still have approximately two months to serve after January 8, 1949. Our computation of time accords with the finding of the lower court that when the instant proceeding was commenced, the defendant had not completed service of his sentence as commuted. We are satisfied that there is no merit in defendant's first claim of error.

Defendant's second contention is that the court erred in overruling the demurrer to the information for the reason that it was not filed within two years after defendant's last conviction. The weakness of this assertion is evidenced by the fact that he relies solely upon that part of § 4 of ch. 585, Oregon Laws, 1947, reading: '* * * that such information shall be filed within two years after the last conviction.' To do this he must necessarily ignore, as he does, the impact of § 7 of the same Act, which should be read with it.

Section 8 of ch. 585, Oregon Laws, 1947, repeals in its entirety the Habitual Criminal Act as it was prior to that year, §§ 26-2801 through 26-2804, O.C.L.A. The Act of 1947 substitutes a new code therefor which, among other things, introduces for the first time provisions of limitation of time for the invocation of certain procedures, including that referred to by defendant as a part of § 4.

Section 7 of the Act of 1947 is a saving clause reading: 'All provisions of law repealed by this act hereby are continued in full force and effect as to penalties incurred and pending proceedings.' (Italics ours.)

Such saving provisions are declarative of a continuing policy of the state that the repeal of any statute shall not release or extinguish any liability incurred or affect any right accrued. 50 Am.Jur., Statutes, 534, § 527. When the repealing statute contains a saving clause as to crimes committed prior to the repeal, or as to pending prosecutions, the offender may be tried and punished under the old law. 50 Am.Jur., Statutes, 571, § 572.

If we disregard the saving provisions of § 7, defendant's point would be well taken because it is obvious that more than two years had elapsed between the date of his last conviction and the filing of the instant information. On the other hand, if the saving clause is applicable in this matter, then his contention is without merit.

No information under the old Act, §§ 26-2801 through 26-2804, O.C.L.A., had been filed against defendant prior to the enactment of ch. 585, Oregon Laws, 1947, and to that extent it may be said that there were no 'pending proceedings' affected by § 7. This elimination focuses our attention on the words 'penalties incurred,' as found in that section; and if it can be said that the defendant had 'incurred penalties' under the previous Act prior to its repeal, then ipso facto his status here is to be determined by the language of the Habitual Criminal Act as it was prior to 1947. The earlier law provided no limitation of time in which to file an information alleging habitual criminality. This innovation, as we have said, appears for the first time in the Act of 1947.

To avoid the effect of the saving clause in the Act of 1947, the defendant argues that 'penalties incurred' mean 'penalties imposed or exacted.' He thus uses the words in a past tense, meaning the completed assessment of penalties so as to preclude any further action with reference thereto and tells us further that they are penalties arising out of cases where the court has previously determined that a person was a habitual criminal. We are not so persuaded. The defendant also represents that any other interpretation...