State v. Robinson

• Citation: 32 Or. 43,48 P. 357
• Parties: STATE v. ROBINSON.
• Decision Date: 05 April 1897
• Court: Oregon Supreme Court

48 P. 357

32 Or. 43

STATE v. ROBINSON.

Supreme Court of Oregon

April 5, 1897

Appeal from circuit court, Marion county; George H. Burnett, Judge.

Andrew Robinson was convicted of rape, and appeals. Affirmed.

O.H. Irvine and Geo. Bingham, for appellant.

C.M Idleman, Atty. Gen., and S.L. Hayden, Dist. Atty., for the State.

BEAN J.

The defendant was indicted and convicted of the crime of rape by carnally knowing a female child under the age of 16 years and, having been sentenced to imprisonment in the penitentiary, brings this appeal to reverse the judgment. The conviction was had under the act of 1895 (Laws 1895, p. 67) entitled "An act entitled an act to amend section 1733 of chapter XI of title XI of the Criminal Code of Oregon, as compiled and annotated by William Lair Hill," and is as follows: "Be it enacted by the legislative assembly of the state of Oregon: Sec. 1733. If any person over the age of sixteen years shall carnally know any female child under the age of sixteen years, or any person shall forcibly ravish any female, such person shall be deemed guilty of rape, and, upon conviction thereof, shall be punished by imprisonment in the penitentiary for not less than three nor more than twenty years." At the outset it is contended by the defendant that although this act purports, by its title, to be amendatory of section 1733 of the Criminal Code, it is in fact an original act, defining the crime of rape and providing for its punishment, and is therefore void because the subject is not expressed in the title. The argument seems to be that a failure to declare in the body of a legislative act that it is amendatory of an existing statute necessarily renders it inoperative as such, but our attention has not been called to any decision or constitutional provision to that effect. It is quite true that ordinarily an amendatory act shows in the body its character, by declaring that a designated act or section of an existing statute is to be amended; but an error or omission in this respect is immaterial where it is otherwise apparent that it was so intended, and it can be ascertained definitely what section the legislature intended to amend. And for this purpose resort may be had to the title, where, from the body of the act, the intent of the legislature is doubtful or obscure. By the constitution of this state, every act is required to have a title expressing the subject-matter. The title, therefore is necessarily a part of the act, and renders very important aid, if need be, in its construction, or in determining the legislative intent. End.Interp.St. § 58; Eby's Appeal, 70 Pa.St. 311; Halderman's Appeal, 104 Pa.St. 251; Binz v. Weber, 81 Ill. 288; Mathis v. State (Fla.) 12 So. 681. As said by Mr. Chief Justice Marshall in U.S v. Fisher, 2 Cranch, 358: "When the mind labors to discover the design of the legislature, it seizes everything from which aid can be derived; and in such case the title claims a degree of notice, and will have its due share of consideration." And in U.S. v. Palmer, 3 Wheat. 610, the same learned justice said: "The title of an act cannot control its words, but may furnish some aid in showing what was in the mind of the legislature." And in Eby's Appeal, supra, Mr. Justice Sharswood, speaking for the court, said: "However it was in England, where the title was held to be no part of a statute,--indeed, was commonly framed by the clerk of parliament after the bill had passed, without any vote being taken upon it,--certainly since the first amendment of the constitution adopted in 1864 (article 11, § 8) it is now necessarily a part of the act, and a very important guide to its right construction." These and other authorities which might be cited fully sustain the right, and make it the duty, of the court to look at the title of a law for the purpose of ascertaining the intention of the legislature, when the body of the act leaves it uncertain. And so, in Wilson v. Spaulding, 19 F. 304, resort was had to the title of an amendatory act of congress for the purpose of showing that a mistake had been made in designating the particular law to be amended in the body thereof, and it was held that, by reading the body of the act and the title together, the intent to amend the section designated in the title and not the body was apparent, and the law was given effect as such. Indeed, in this, as in all similar cases where the requirements of the constitution have been complied with in the enactment of a law, the controlling question is whether the legislative intent can be clearly ascertained, or whether the act is void for uncertainty. The practice of declaring in the body of an amendatory law that it is an amendment of a particular act or section serves no other purpose than to render certain the design of the legislature, and, when that is otherwise clearly apparent, the law should not be disregarded because it fails to conform to this general practice. Where there is no objection on constitutional grounds, a failure to observe some mere matter of form, of this character, will not operate to defeat the legislative intent, when such intent is otherwise apparent. Plank-Road Co. v. Reynolds, 3 Wis. 258; School Directors of Dist. No. 5 v. School Directors of Dist No. 10, 73 Ill. 249. Applying these rules to the case in hand, its solution presents no difficulty. It is apparent from the title that the act in question was designed to amend section 1733 of the Criminal Code, defining the crime of rape, and, reading the title in connection with the body, there can be no mistaking the legislative intent. There is but one section 1733 in the Criminal Code, and that has reference to the crime referred to; and its language is copied into and made a part of the act of 1895, with the exception that the age of consent of a female is raised from 14 to 16 years, and it is provided that a male, to be guilty of the crime therein defined, shall be over that age.

A suggestion was made at the argument that the title was insufficient, even as an amendatory act, because it refers to section 1733 as being part of chapter 11, tit. 11, of the Criminal Code, when there is in fact no such title or chapter in that Code. But this is a mere mistake in the engrossment of the bill, and is immaterial, as all reference to the chapter and title can be wholly disregarded as surplusage, and a good and sufficient title still remain. Ex parte Howe, 26 Or. 181, 37 P. 536. In our opinion, therefore, the act of 1895 is a valid legislative enactment, amendatory of section 1733 of the Criminal Code, and the objection to the prosecution in this case on that ground must fail.

Upon the merits there are numerous assignments of error in the record, based upon the rulings of the court made during the progress of the trial, and it will be most convenient to consider briefly such of them as were relied upon in the argument in the order in which they were presented 1. It is claimed that the court erred in permitting the prosecutrix to prove by herself, as well as by the superintendent of the...