State v. Pirkey

• Citation: 281 P.2d 698,203 Or. 697
• Parties: The STATE of Oregon, Appellant, v. Walter PIRKEY, Respondent.
• Decision Date: 30 March 1955
• Court: Supreme Court of Oregon

Page 698

281 P.2d 698

203 Or. 697

The STATE of Oregon, Appellant, v. Walter PIRKEY, Respondent.

Supreme Court of Oregon, En Banc.

Argued March 2, 1955.

Decided March 30, 1955.

Walter D. Nunley, Jr., Dist. Atty. for Jackson County, Medford, argued the cause and filed a brief for appellant.

Edward C. Kelly, Medford, argued the cause and filed a brief for respondent.

Before WARNER, C. J., and TOOZE, ROSSMAN, LUSK, BRAND and LATOURETTE, JJ.

BRAND, Justice.

On the 28th day of May, 1953, the defendant Walter Pirkey was charged by an indictment of the grand jury with the crime of drawing a bank check with insufficient funds in the bank with which to pay the check in full. The indictment specified that the defendant drew the check unlawfully and feloniously with intent to defraud. The date of the alleged crime was 9 April 1953. The indictment was drawn under and pursuant to the provisions of Oregon Laws 1949, Chapter 129, Section 1, which reads as follows:

'Any person who, for himself or as the agent or representative of another, or as an officer, agent or employe of a corporation, and on behalf thereof, shall wilfully, with intent to defraud, make or draw, or utter or deliver any check, draft or order upon any bank or other depository, for the payment of money, knowing at the time of such making, drawing, uttering or delivering that the maker or drawer, or his principal, or the corporation, has not sufficient funds in, or credit with said bank or other depository for the payment of such check, draft or order, in full upon its presentation, although no express representation is made that there are sufficient funds in or credit with such bank or other depository for its payment in full upon presentation, shall be guilty of a crime and may be proceeded against either as for a misdemeanor or as for a felony, in the discretion of the grand jury or the magistrate to whom complaint is made, or before whom the action is tried, as the case may be; and upon conviction thereof, if proceeded against as for or convicted of a misdemeanor, shall be punished by imprisonment in the county jail for not more than one year, or by a fine of not to exceed one thousand dollars ($1,000), or by both such fine and imprisonment, or, if proceeded against as for and convicted of a felony, shall be punished by imprisonment in the penitentiary for not more than five years. If a person be proceeded against hereunder as for a misdemeanor, justice's courts, district courts and circuit courts shall have concurrent jurisdiction of such crime.'

This statute has been carried forward into the Oregon Revised Statutes and now appears as ORS 165.225. However, a comparison of the 1949 statute, quoted supra, with the provisions of ORS 165.225, indicates that certain changes have been made in the Revised Statutes, which may, perhaps, involve a substantial change in the statute. The offense charged occurred prior to the adoption of Oregon Revised Statutes and we therefore have no occasion to construe the provisions of ORS 165.225. Our concern is with provisions of the 1949 law.

The brief of counsel for the State of Oregon inadvertently sets forth the statute as it appears in Oregon Revised Statute, rather than in the 1949 session laws. To this indictment the defendant filed a demurrer

'upon the ground and for the reason that said indictment, being based under Chapter 129 Oregon Laws 1949, fails to state facts sufficient to charge a crime, the said Chapter 129 being invalid and unconstitutional in its provisions as violating the provisions of the Constitution of the State of Oregon and of the United States of America, with reference to due process and equal protection of the laws and being so indefinite and uncertain in the penal provisions thereof as between committing magistrate, presiding judge and grand jury as to be void for such indefiniteness and uncertainty and such provision being an unconstitutional and invalid delegation of authority to a grand jury and committing magistrate.'

The demurrer was sustained by the trial court and the indictment was dismissed. The State of Oregon appeals.

The first part of the statute under which the indictment was brought clearly defines with sufficient definiteness the specific acts which are purportedly made punishable by that statute. The portion of the statute against which the attack is made is that which provides that when a person has done the specific act or acts prohibited by statute, he may be proceeded against either as for a misdemeanor or as for a felony in the discretion of the grand jury or the magistrate to whom complaint is made or before whom the action is tried.

We shall first assay the difficult task of determining the legislative intent from the words of the statute. In all criminal prosecutions the accused shall have the right 'to demand the nature and cause of the accusation against him * * *.' Oregon Constitution, Article I, Section 11. Under the statute the accused is to be 'proceeded against', either by indictment or by information. In either case the charge contained in such instrument must specify the nature of the accusation. An accusation of a felony surely differs in nature from an accusation for a misdemeanor. Therefore we conclude that the charge upon which the defendant is to be tried must specify whether he is accused of committing a misdemeanor or a felony. We must therefore assume that the 'discretion' is vested only in the person or persons who present the charge upon which the defendant is to be tried.

The question for determination is the constitutionality of the statute. The prosecution urges upon our consideration the general rule that statutes are presumed to be constitutional and will be invalid only if the unconstitutionality appears beyond a reasonable doubt. State v. Anthony, 179 Or. 282, 169 P.2d 587. Secondly it argues that the guaranty of equal protection of the laws admits of the exercise of a wide scope of discretion in classification. Foeller v. Housing Authority of Portland, 198 Or. 205, 256 P.2d 752. It is contended that the legislature has vested only a reasonable discretion in the statute which authorizes the filing of either a charge for misdemeanor or a charge for felony, and, further, that the due process and equal protection clauses do not guarantee to the citizens of the state any particular form or method of state procedure. With the general tenor of the authorities cited by the plaintiff upon these points the court is in full accord. The question relates to their application to the facts of the particular case. We also agree with the contention of the state that 'As relates to crimes, 'substantive law' is that which declares what acts are crimes and prescribes the punishment for committing them * * *.' (Italics ours.) It is provided by statute that 'A crime or public offense is an act or omission forbidden by law and punishable upon conviction by any of the following punishments:' (Enumerating them.) ORS 161.020. To the same effect see Redsecker v. Wade, 69 Or. 153, 134 P. 5, 138 P. 485; Baxter v. State, 49 Or. 353, 356, 88 P. 677, 89 P. 369. Thus we see that the statutory provision specifying the punishment for the doing of specific acts constitutes an integral part of the crime itself, as defined. Acting under the purported authority of the statute, it is clear in this case that the grand jury indicted the defendant for a felony, and assuming the statute to be constitutional, the consequences of conviction under such a charge are specified in the act.

We have held that it is unnecessary to employ the word 'feloniously' in an indictment if the acts charged therein sufficiently show the commission of a felony. State v. Ede, 167 Or. 640, 117 P.2d 235; State v. Christiansen, 150 Or. 11, 41 P.2d 442. However, the rule that the use of the word 'feloniously' is not always essential in an indictment cannot be applied in this case because the use of the word is the only means by which it can be determined whether the defendant is charged with a felony or a misdemeanor.

The provisions of the Equal Protection Clause of the Fourteenth Amendment apply as limitations upon all instrumentalities through which the state acts. 12 Am.Jur. 137, Constitutional Law, § 473. In the first instance of course, it applies to the legislative department. The Equal Protection Clause of the Fourteenth Amendment, and Article I, Section 20 of the Oregon Constitution are alike in that they constitute similar limitations upon legislative action for the protection of the individual from arbitrary or capricious legislation. Phillips v. City of Bend, 192 Or. 143, 153, 234 P.2d 572; Savage v. Martin, 161 Or. 660, 91 P.2d 273. Affirmatively stated, both provisions constitute a pledge of the protection of equal laws. Power Manufacturing Co. v. Saunders, 274 U.S. 490, 47 S.Ct. 678, 71 L.Ed. 1165. The Constitution does not require that a law shall affect all persons exactly alike, but there is a guaranty of like treatment to all persons similarly situated. It is not the purpose of either constitutional provision to take from the states the right and power to classify the subjects of legislation. It is only when such attempted classification is arbitrary and unreasonable that the courts can declare it to be beyond the legislative authority. Jeffrey Mfg. Co. v. Blagg, 285 U.S. 571, 35 S.Ct. 167, 59 L.Ed. 364; Sproles v. Binford, 286 U.S. 374, 52 S.Ct. 581, 76 L.Ed. 1167. This is not to lay down a general rule that the courts will invalidate statutes merely because they are unreasonable. The Constitution does imply that if by statute the conduct of one person or group produces a certain legal consequence, while the conduct of another person or group produces a different legal consequence, there must be some rational distinction between the persons or groups of persons in question sufficient to warrant the application to them of different legal consequences for their acts. If...