State v. Popiel

• Decision Date: 18 March 1959
• Citation: 216 Or. 140,337 P.2d 303
• Parties: STATE of Oregon, Appellant, v. Theodore F. POPIEL, Respondent.
• Court: Oregon Supreme Court

Page 303

337 P.2d 303

216 Or. 140

STATE of Oregon, Appellant, v. Theodore F. POPIEL, Respondent.

Supreme Court of Oregon, Department 2.

Argued and Submitted March 11, 1959.

Decided March 18, 1959.

David Robinson, Jr., Deputy Dist. Atty., for Multnomah County, Portland, for appellant. With him on the brief were Robert Y. Thornton, Atty. Gen., and Charles E. Raymond, Dist. Atty., for Multnomah County.

Donald E. Huffman, Oak Grove, for respondent. With him on the brief was Burton J. Fallgren, Portland.

Before McALLISTER, C. J., WARNER and SLOAN, JJ., and MILLARD, J. pro tem.

MILLARD, Justice pro tem.

The defendant in this case was charged by an indictment returned by the grand jury of Multnomah County, Oregon, with the crime of assault and battery while unarmed by means of force likely to produce great bodily injury. The charging part of the indictment reads as follows:

'The said Theodore F. Popiel on the 16th day of June, A.D. 1957 in the County of Multnomah and State of Oregon, then and there being, and not then and there being armed with a dangerous weapon, did then and there unlawfully and feloniously commit an assault and battery upon another to wit, Mary M. Cloyd, by means of force likely to produce great bodily injury, to wit, by then and there striking, beating and bruising the head, face and body of the said Mary M. Cloyd with his hands and fists, the said acts of defendant being contrary to the Statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.'

It further appears that this indictment was drawn under and pursuant to the provisions of ORS 163.255, which provides as follows:

'Any person, not being armed with a dangerous weapon, who assaults another or who commits any assault and battery upon another by means of force likely to produce great bodily injury shall be punished upon conviction by imprisonment in the penitentiary for not more than five years.'

Defendant demurred to the indictment on the grounds that the indictment fails to state facts sufficient to charge a crime, that the statute above referred to was invalid and unconstitutional as violating the provisions of the Constitution of Oregon and the Constitution of the United States of America with reference to due process and equal protection of the law; that the statute in question was so indefinite and uncertain in the penal provisions thereof as to constitute an unconstitutional and invalid delegation of authority to the grand jury and committing magistrate; and further, that the indictment does not sufficiently conform to the requirements of ORS 132.510, 132.520(2) and 132.540(f). The demurrer was sustained and the State of Oregon appeals.

In argument respondent contended, first, that the phrase 'by means of force likely to produce great bodily injury' was so indefinite and uncertain that it fails to effect any substantial difference from the simple assault and assault and battery statute; secondly, since there is no difference, the statutes overlap and therefore it leaves it within the discretion of the prosecuting authorities as to whether defendant should be charged with a misdemeanor or felony, as prohibited by a previous decision of this court in State v. Pirkey, 203 Or. 697, 281 P.2d 698, and thirdly, that in any event the penalty does not conform to Section 16, Article 1 of the Oregon constitution which requires that 'all penalties shall be proportioned to the offense.'

Since the purported crime is alleged in the wording of the statute, we will first consider defendant's main contention having to do with indefiniteness and uncertainty, since appellant's first two contentions rest upon that proposition.

'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, 235 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. * * *' State v. Pirkey, 203 Or. 697, 702, 281 P.2d 698, 701.

'We hold that the provision of the statute which purports to vest in a grand jury or magistrate the unguided and untrammeled discretion to determine whether a defendant shall be charged with a felony or a misdemeanor, is unconstitutional. * * *' State v. Pirkey, supra, 203 Or. 697, at page 708, 281 P.2d 698, at page 703.

In arriving at the legislative intent in the enactment of a statute, it should be read in connection with all statutes relating to the same subject matter, and effect should be given to every word, phrase, sentence and section of all such statutes, if possible. State v. Buck, 200 Or. 87, 262 P.2d 495; In re O'Shea's Estate, 176 Or. 500, 159 P.2d 198; State v. Flynn, 137 Or. 8, 299 P. 694, 300 P. 1024; Stowe v. Ryan, 135 Or. 371, 296 P. 857. From this it would appear that the words 'by means of force likely to produce great bodily injury' refer not only to the provisions of the questioned statute relating to assault and battery, but also to the provision relating to simple assault. Adopting this construction the question arises as to whether or not such words add an additional element in a reasonable, substantial way so as to constitute a crime separate and apart from that described in ORS 163.260 which is the misdemeanor statute relating to ordinary assault and assault and battery.

The expression 'great bodily injury' is equivalent to the expression 'great bodily harm.' Terre Haute Electric Ry. Co. v. Lauer, 21 Ind.App. 466, 52 N.E. 703, 706. Great bodily harm means 'more than a mere injury by the...