State v. Osbourne

• Decision Date: 12 May 1936
• Citation: 57 P.2d 1083,153 Or. 484
• Parties: STATE v. OSBOURNE.
• Court: Oregon Supreme Court

57 P.2d 1083

153 Or. 484

STATE v. OSBOURNE.

Supreme Court of Oregon

May 12, 1936

In Banc.

Appeal from Circuit Court, Multnomah County; James W. Crawford Judge.

Joseph John Osbourne was convicted of murder in the second degree based upon a verdict in which only ten jurors concurred, and he appeals.

Affirmed.

George Mowry, of Portland, for appellant.

Frank S. Sever, Chief Civil Deputy Dist. Atty., and Joe P. Price Deputy Dist. Atty., both of Portland (James R. Bain, Dist. Atty., and Albert M. Hodler, Deputy Dist. Atty., both of Portland, on the brief), for the State.

KELLY Justice.

In this case there are but two assignments of error. Both of them challenge the validity of the amendment to section 11, article 1 of the Constitution of the state of Oregon, which was adopted by the people at the state-wide election held May 18, 1934. This amendment is as follows: "Provided, however, that in the circuit court ten members of the jury may render a verdict of guilty or not guilty, save and except a verdict of guilty of first degree murder, which shall be found only by a unanimous verdict, and not otherwise." Oregon Laws 1935, p. 5.

The first assignment of error presents the question whether the ballot title of the foregoing constitutional amendment was such as to annul and invalidate the action of the electorate in approving the amendment. We quote this ballot title:

"Criminal Trial Without Jury and Nonunanimous Verdict.

"Constitutional Amendment.-Purpose: To provide by constitutional amendment that in criminal trials any accused person, in other than capital cases, and with the consent of the trial judge, may elect to waive trial by jury and consent to be tried by the judge of the court alone such election to be in writing; provided, however, that in the circuit court ten members of the jury may render a verdict of guilty or not guilty, save and except a verdict of guilty of first degree murder, which shall be found only by a unanimous verdict, and not otherwise.

"Vote Yes or No."

The reference in the foregoing title to "trial without jury" and waiver by an accused person of trial by jury were pertinent only to an amendment adopted by the people on November 8, 1932 (see Laws 1933, p. 5); and had no proper place in the title of the amendment under consideration.

The defendant calls our attention to the provision of the Constitution declaring that "When two or more amendments shall be submitted *** to the voters of this state, at the same election, they shall be so submitted that each amendment shall be voted on separately." Section 1, article 17, Constitution, Oregon Code 1930, p. 197.

This provision and the authorities cited to this point have no application to the case at bar because only one amendment was submitted at the election of May 18, 1934.

Defendant further argues that the amendment in question was submitted to the voters under a ballot title that was grossly inaccurate, unfair, misleading, and untrue. We are unable to concur in this view.

We think that there was surplusage in the ballot title, but such surplusage was not of such a character as to mislead or deceive. The title was not absolutely accurate.

"Neither a lack of absolute precision nor the use of surplusage will vitiate the election." 20 C.J., subject, Elections, p. 150, § 178, and authorities cited in note 15.

It is true that the ballot title does not reflect the fact that a trial without a jury upon waiver thereof by defendant had been prescribed by the amendment of November 8, 1932, and that such amendment was effective when the amendment in suit was submitted to the electorate. The criticism is that the ballot title indicates that both the "trial without jury" and the "ten juror verdict" amendments were being submitted, while, in fact, the first of these two amendments had already become part of the Constitution.

A somewhat analogous situation was presented to the Supreme Court of North Dakota. Schumacher v. Byrne, 61 N.D. 220, 237 N.W. 741, 745. There the title contained the phrase, "and providing for a tax of four cents per gallon upon motor vehicle fuels." We quote from the opinion in that case: "Some objection is made to the form prescribed for the 'ballot title,' and it is claimed that the same is indefinite and misleading, that it does not fairly represent the subject-matter of the measure, that it does not apprise the voters that the measure attacked is an amendment to a prior law, and that it does not apprise the voters that the 4-cent tax attacked is not in fact an additional tax of 4 cents but is a mere additional tax of 1 cent." Attention is then called to the requirement of the section of the Constitution of North Dakota (section 25 as amended in 1918) providing for the exercise of the power of referendum, which is that a petition shall have "printed thereon a ballot title which shall fairly represent the subject matter of the measure"; and it is held that the proposed ballot title is not misleading.

In that case, the secretary of state had refused to file the petitions. The people had not yet voted upon the measure. In that case too, the provision construed by the court was a constitutional provision, as distinguished from a statutory requirement. In the case at bar, the question has been submitted to the electorate; before its submission, newspaper discussion and editorial comment were available to voters the voters' pamphlet was also distributed to each registered voter, and we have for construction...