State v. Robinson

• Decision Date: 09 September 1959
• Citation: 343 P.2d 886,217 Or. 612
• Parties: STATE of Oregon, Respondent, v. Dale N. ROBINSON, Appellant.
• Court: Oregon Supreme Court

Page 886

343 P.2d 886

217 Or. 612

STATE of Oregon, Respondent, v. Dale N. ROBINSON, Appellant.

Supreme Court of Oregon, Department 1.

Argued June 11, 1959.

Decided Sept. 9, 1959.

Charles D. Burt, Salem, argued the cause for appellant. With him on the brief were Robin D. Day and Gary D. Gortmaker, Salem, and Ronald A. Watson, Portland.

David Robinson, Jr., Deputy Dist. Atty., Portland, argued the cause for the respondent. With him on the brief was Charles E. Raymond, Dist. Atty., Portland.

Before McALLISTER, C. J., and ROSSMAN, O'CONNELL and MILLARD, JJ.

ROSSMAN, Justice.

This is an appeal by the defendant from a judgment of the circuit court for Multnomah County which found him guilty of the crime proscribed by ORS 166.270 and which in his case consisted of being a convicted felon who had in his possession a firearm capable of concealment upon his person. With the express consent of the defendant the cause was tried by the judge without a jury.

The defendant-appellant presents two assignments of error. The first of them challenges the validity of the act upon which the indictment was based--ORS 166.270 which says:

'Any unnaturalized foreign-born person or any person who has been convicted of a felony against the person or property of another or against the Government of the United States or of this state, or of any political subdivision of this state, who owns, or has in his possession or under his custody or control any pistol, revolver, or other firearm capable of being concealed upon the person, or machine gun, shall be punished upon conviction by imprisonment in the penitentiary * * *.'

That section of our laws, according to the defendant, arbitrarily denies to ex-convicts and unnaturalized foreign-born persons rights and privileges which others possess. It violates, so he says, §§ 20 and 27, Art. I, Constitution of Oregon, and the equal protection clause of the Fourteenth Amendment of the Constitution of the United States.

Art. I, § 20 of the Oregon Constitution reads:

'No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which upon the same terms, shall not equally belong to all citizens.'

Art. I, § 27, Constitution of Oregon, declares:

'The people shall have the right to bear arms for the defense of themselves, and the State, but the Military shall be kept in strict subordination to the civil power.'

The defendant claims that if ORS 166.270 is recognized as valid, it is possible to adjudge guilty an alien who possesses in his homeland a firearm but who is completely unarmed during his visit in Oregon. He also deems the act unreasonable in denying to ex-convicts whose felonies were non-violent the right to possess arms.

ORS 174.040 says:

'It shall be considered that it is the legislative intent, in the enactment of any statute, that if any part of the statute is held unconstitutional, the remaining parts shall remain in force unless:

'(1) The statute provides otherwise;

'(2) The remaining parts are so essentially and inseparably connected with and dependent upon the unconstitutional part that it is apparent that the remaining parts would not have been enacted without the unconstitutional part; or

'(3) The remaining parts, standing alone, are incomplete and incapable of being executed in accordance with the legislative intent.'

The challenged statute has as its subject matter two groups of individuals: (1) 'any unnaturalized foreign-born person,' and (2) 'any person who has been convicted of a felony.'

A firearm of the kind described in ORS 166.270 is plainly dangerous, especially if possessed by one whose past conduct revealed a disregard for law and the normal moral restraints. The legislature, in writing that act, was attempting to prevent crimes of the kind in which concealed weapons play a part. It was not concerned with the type of individual who owns a gun but whose past conduct has revealed no indication that he will misuse it. It had in mind two classes of individuals who possess firearms capable of concealment on the person: (1) those whose past conviction of a felony showed an unsocial attitude and (2) unnaturalized aliens. Obviously, it is difficult to spot the law breaker before he takes an unlawful course, and yet the legislature has the right to make efforts in that direction. The legislature evidently believed that ex-convicts who possess firearms of the kind described in ORS 166.270 are more likely to commit evil than if they are forced to remain unarmed. We can not say that a classification based upon that proposition is capricious or that it is irrelevant to the legislative purpose. Many other states have enacted similar legislation and it has been recognized as valid. The defendant seeks to make a distinction between ex-convicts who committed crimes of violence and those whose crimes were such a embezzlement and income tax evasion. A person who embezzles money, fails to report his income or commits any other non-violent felony is evidently deficient in the deference to law which must be expected of all who live in a democracy. Such a person displays a lack of proper regard for the duties of citizenship and the normal restraints to which virtually all others yield instinctively. By his own felonious conduct he classifies himself and places himself in a category different from that composed of the law abiding. When the legislature concludes that a person of that kind can not be trusted with a concealable weapon we surely can not say that its decision lacks reason.

People v. James, 71 Cal.App. 374, 235 P. 81, 82, sustained the validity of a statute virtually the same as ORS 166.270. We take the following from that decision:

'By the very terms of the act defendant is excluded from the right to own or possess firearms, and it is within the power of the Legislature to say that such ownership or possession in a person convicted of a felony may be harmful to the public welfare and to prescribe a benalty therefor. * * *

* * *

* * *

'* * * it cannot be assumed that the Legislature did not have evidence before it or that it did not have reasonable grounds to justify the legislation and to conclude that unnaturalized foreign-born persons and persons who have been convicted of a felony were more likely than others to unlawfully use firearms or to resort to force in defiance of law. * * *'

See to similar effect People v. Camperlingo, 69 Cal.App. 466, 231 P. 601; People v. McCloskey, 76 Cal.App. 227, 244 P. 930; State v. Wyckoff, 27 N.J.Super. 322, 99 A.2d 365; and People v. Saltis, 328 Ill. 494, 160 N.E. 86 (appeal dismissed 277 U.S. 575, 48 S.Ct. 530, 72 L.Ed. 995). In the McCloskey case the court made this observation 'It has been held in a number of cases that the act is a valid and reasonable exercise of the police power of the state. 'It is a well-recognized function of the legislature in the exercise of the police power to restrain dangerous practices * * * and to regulate the carrying and use of firearms and other weapons in the interest of public safety * * *.''

The defendant has cited no decision which holds to the contrary of those just mentioned. He claims, however, as we have said, that ORS 166.270 can authorize the conviction of an unarmed alien temporarily in this state who owns a gun which he keeps in his native land. We noticed that the California court sustained legislation virtually the same as ours. Ex parte Rameriz, 193 Cal. 633, 226 P. 914, 34 A.L.R. 51, bestowed extensive attention upon the problem and sustained the power of the legislature to deny to aliens the right to own or possess firearms with a barrell less than 12 inches in length. The annotation to People v. Zerillo, 219 Mich. 635, 189 N.W. 927, 24 A.L.R. 1115, at page 1119, takes note of several decisions which sustained legislation that denied aliens the right to possess firearms.

However, we can not understand how the defendant is in a position to raise the contention concerning aliens. He does not claim that he is an alien. It is not inappropriate to mention also that the defendant does not say that his previous felony was of a non-violent kind. As was said in State v. Anthony, 179 Or. 282, 169 P.2d 587, 598:

'It is an accepted rule that he who challenges an act under the 14th Amendment must be one against whom the act in fact operates without due process. This defendant is not such a person.'

This is not an instance in which a defendant claims that others should have been included within the statute under which he is being prosecuted and that the legislature's exclusion of them places him in a disfavored class. Rather, he argues that aliens should not have been included in the act and seemingly he seeks to become their vindicator. If the act is invalid as to aliens, and we make no intimation to that effect, its validity as to ex-convicts can be readily sustained under ORS 174.060, previously quoted.

The defendant, as we have mentioned, argues that the act in question infringes upon Art. I, § 27, Constitution of Oregon, which is set forth in a preceding paragraph of this opinion. According to page 469 of A History of the Oregon Constitution (Carey), Art. I, § 27, was patterned upon and is identical to Art. I, §§ 32 and 33, Constitution of Indiana. McIntyre v. State, 170 Ind. 163, 83 N.E. 1005, held that the Indiana provision (§ 32) permits reasonable regulation of the right to bear arms and that accordingly legislation prohibiting the carrying of concealed weapons is valid. We do not believe that In re Brickey, 8 Idaho 597, 70 P. 609, and People v. Zerillo, supra, warrant a contrary conclusion. It is our belief that ORS 166.270, at least so far as ex-convicts are concerned, is valid legislation. The first assignment of error, in our opinion, is without merit.

The second assignment of error is based upon a motion predicated upon ORS 134.120 for an order of dismissal. The motion gave as its grounds 'that this case has not been brought to...