State v. Schulman
| Decision Date | 21 September 1971 |
| Citation | 92 Adv.Sh. 1505,6 Or.App. 81,485 P.2d 1252 |
| Parties | STATE of Oregon, Respondent, v. Richard SCHULMAN, Appellant. |
| Court | Oregon Court of Appeals |
Howard R. Lonergan, Portland, argued the cause for appellant. With him on the brief was A. I. Bernstein, Portland.
Jacob B. Tanzer, Sol. Gen., Salem, argued the cause for respondent. With him on the brief was Lee Johnson, Atty. Gen., Salem.
Before SCHWAB, C.J., and FORT and THORNTON, JJ.
Defendant was convicted by the Circuit Court of Multnomah County of committing an illegal abortion. On appeal he contends (1) that the indictment did not allege facts sufficient to constitute a crime and (2) that the abortion statute, ORS 435.405 to 435.495, is unconstitutional.
The indictment charges that defendant, on or about October 11, 1969,
'* * * did unlawfully, purposely and feloniously use in the body and womb of one Judy May Jenkins certain fluid, a more particular description of said fluid is unknown to the Grand Jury, she, the said Judy May Jenkins, being a female pregnant with child, with intent * * * thereby to terminate the pregnancy * * * for purposes other than delivery of a viable birth * * *.'
Defendant did not demur to the indictment. Notwithstanding, an indictment may, at any stage of the proceedings, even for the first time on appeal, be challenged on the grounds that it does not state facts sufficient to constitute a crime. State v. Peebler et al., 200 Or. 321, 265 P.2d 1081 (1954). However, courts do not look with favor upon such delay in attack. State v. DuBois, 175 Or. 341, 153 P.2d 521 (1944).
The above indictment is sufficient to enable a person of common understanding to know what he was charged with and to prepare a defense. The act of 'unlawfully, purposely and feloniously' producing an abortion as charged here cannot have reference to nor include instances in the legitimate practice of medicine under ORS 435.415 et seq, in which an abortion may be necessary and lawful. Therefore, where, as here, the defendant is not a licensed physician nor assisting a licensed physician, the indictment need not negative the possibility that the abortion may have been lawful. State v. Elliott, 204 Or. 460, 467, 277 P.2d 754 (1954), cert denied 349 U.S. 929, 75 S.Ct. 772, 99 L.Ed. 1260 (1955).
2. The constitutionality of the statute under which a defendant has been charged is usually raised by demurrer. State v. Nicholls, 77 Or. 415, 151 P. 473 (1915). Instead defendant at the conclusion of the state's case in chief moved for a judgment of acquittal on several grounds, including that the abortion statute '* * * violates the due process, equal protection clause of Section 1, 14th Amendment, United States Constitution * * * because it's vague, indefinite, lacking in standards, and that it interferes with a woman's right to have an abortion, that the statute places the burden of proof on the defendants to prove innocence rather than the burden on the State to prove guilt.' The trial judge denied the motion.
...
To continue reading
Request your trial
-
Cornelius v. City of Ashland
... ... The only ones that appear possibly relevant are lack of subject matter jurisdiction, ORS 16.260(1), and failure to state a cause of action, ORS 16.260(6). It may be that the questions of justiciable controversy, standing and ripeness in this context are elements of ... See, State v. Schulman, 6 Or.App. 81, 485 P.2d 1252, Sup.Ct. review denied [12 Or.App. 193] (1971), and State v. Drummond, 6 Or.App. 558, 489 P.2d 958 (1971) ... ...
-
State v. Moffitt
...in favor of the state and the validity of the judgment. State v. Goesser, 203 Or. 315, 325, 280 P.2d 354 (1955); State v. Schulman, 6 Or.App. 81, 82-83, 485 P.2d 1252 (1971); State v. Zusman, 1 Or.App. 268, 271, 460 P.2d 872 (1969), rev. den.; cert. den. 398 U.S. 905, 90 S.Ct. 1698, 26 L.Ed......
-
State v. Drummond
...tops is clearly proscribed by the statute and constitutionally subject to proscription. As we observed in State v. Schulman, Or.App., 92 Adv.Sh. 1505, 1507, 485 P.2d 1252 (1971): "* * * (O)ne to whom application of a statute is constitutional will not be heard to attack the statute on the g......
-
City of Tigard v. Werner
...than was necessary to accomplish the governmental purpose thus infringing on the basic rights of the citizens.' In State v. Schulman, 6 Or.App. 81, 84, 485 P.2d 1252, 1253, Sup.Ct. review denied (1971), we "* * * (O)ne to whom application of a statute is constitutional will not be heard to ......