State v. Samter

• Decision Date: 07 January 1971
• Citation: 4 Or.App. 349,91 Adv.Sh. 1435,479 P.2d 237
• Parties: STATE of Oregon, Appellant, v. Allen James SAMTER, Respondent. STATE of Oregon, Appellant, v. Nila Rosemarie SAMTER, Respondent.
• Court: Oregon Court of Appeals

Page 237

479 P.2d 237

4 Or.App. 349

STATE of Oregon, Appellant, v. Allen James SAMTER, Respondent.

STATE of Oregon, Appellant, v. Nila Rosemarie SAMTER, Respondent.

Court of Appeals of Oregon, Department 2.

Argued and Submitted Dec. 16, 1970.

Decided Jan. 7, 1971.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem.

James H. Anderson, Eugene, argued the cause for respondents. With him on the brief were George J. Woodrich and Thompson, Mumford & Woodrich, Eugene.

Before SCHWAB, C.J., and LANGTRY, BRANCHFIELD, ^* and HOLMAN, JJ.

HOLMAN, Judge pro tem.

Each defendant was charged with two separate violations of ORS 163.650 which provides:

'Any person, not being a parent of the child, was knowingly and wilfully Cruelly mistreats and maltreats a child under the age of 16 years, shall be punished * * *.' (emphasis ours.)

Each indictment contained three identical counts of cruel mistreatment and maltreatment. They were:

1. Requiring a child to stand naked at night in near freezing temperatures while being sprayed with water from a garden hose;

2. Beating him with a wooden paddle while naked;

3. Requiring him to smoke and swallow tobacco until he became ill.

Defendants challenged the indictments by demurrer, contending that the indictments did not state facts sufficient to constitute a crime because the statute upon which the charges were based is unconstitutional upon its face. The basis for the contention of unconstitutionality was that the statute is void for vagueness and fails to meet the due process requirement of the 14th Amendment to the Constitution of the United States. The trial court sustained the demurrer and dismissed the charges. The state appealed.

Defendants base their position that the statute is unconstitutional upon Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447 (1969); State v. Hodges, 254 Or. 21, 457 P.2d 491 (1969); and Coon v. Cupp, Or.App., 91 Adv.Sh. 797, 467 P.2d 140 (1970). Giaccio lays down the following rule:

'It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.' 382 U.S. at 402, 403, 86 S.Ct. at 520.

This rule was recognized by the Supreme Court of this state in Hodges, when it held that portion of the statute ¹ relating to contributing to the delinquency of a minor to be void for vagueness which prohibited '* * * any act which manifestly tends to cause any child to become a delinquent child * * *.' The trust of Hodges was that the causes of delinquency are so broad and so uncertain and so subject to disagreement that it allowed the forces of government too great leeway in choosing the conduct for which persons might be prosecuted and convicted. Coon v. Cupp, Supra.

In the present statute, we do not have any problem of causation. We do have a problem in deciding whether 'cruel mistreatment and maltreatment' is such an indefinite and poorly understood description of the conduct prohibited that the public, judges and jurors would not know whether certain actions are likely to come within the prohibition or not. It is virtually impossible to draw a prohibitionary statute under which it may be determined in advance by everyone, with absolute exactitude in all possible factual circumstances, whether specific conduct will be treated as a violation or not. Therefore, whether a statute is void for vagueness is a matter of degree. This was recognized by the opinion in Hodges when the following language was used:

'Whether a statute challenged on the ground of vagueness is void on its face or reasonably lends itself to a construction limiting its application to an identifiable factual situation that will save its constitutionality is a question of degree. * * *.' 457 P.2d 491 at 493.

The fact that a criminal statute uses general language to categorize and proscribe a variety of specific acts does not necessarily render a statute void for vagueness. State of Oregon v. Wojahn, 204 Or. 84, 137, 282 P.2d 675 (1955)....