State v. Waterhouse

Decision Date13 February 1957
Citation209 Or. 424,307 P.2d 327
PartiesThe STATE of Oregon, Appellant, v. Walter Lee WATERHOUSE, Respondent.
CourtOregon Supreme Court

Oscar D. Howlett, Deputy Dist. Atty., Portland, argued the cause for appellant. With him on the brief was William M. Langley, Dist. Atty., Portland.

Theodore D. Lachman, Portland, argued the cause and filed a brief for respondent.

LUSK, Justice.

This is an appeal by the state from an order sustaining defendant's demurrer to an indictment and dismissing the action.

The prosecution is for the offense known as 'interfering with privacy of another', ORS 167.165, and the charging part of the indictment reads:

'The said Walter Lee Waterhouse on the 16th day of October A.D. 1955, in the County of Multnomah and State of Oregon, then and there being, did then and there unlawfully and wilfully enter the upstairs apartment of a dwelling house, located at 506 Northeast Alberta Street in the City of Portland within said county and state, without the consent or permission of Evelyn Mary White, the lessee of the said apartment, the said Walter Lee Waterhouse not then and there being an officer, and the said Walter Lee Waterhouse there did then and there look through the open door of the bedroom of the said apartment without the consent or permission of the said Evelyn Mary White with intent to violate the privacy of the said Evelyn Mary White, the said bedroom at the said time and place being occupied by the said Evelyn Mary White, the said Walter Lee Waterhouse before the commission of the offense charged herein, was in the Circuit Court of the State of Oregon for the County of Multnomah convicted of the crime of Rape, Oregon Compiled Laws Annot[at]ed, section 23-420, now designated Oregon Revised Statutes, section 163.210, by plea of Guilty on the 27th day of October, 1953, and a sentence of imprisonment for one (1) year in the Oregon State Penitentiary adjudged by the said court on the 3rd day of November, 1953, for the said crime, which sentence was executed by service of the term of imprisonment.'

Defendant's demurrer is based on the following grounds: (1) That the indictment includes prejudicial matter which would preclude a fair trial and procedural due process, to wit, the allegation that the defendant had been previously convicted of the crime of rape; (2) that the same allegation is immaterial and irrelevant; (3) that the facts stated do not constitute a crime; and (4) that the indictment charges more than one crime. Ground 3 will be considered later in this opinion.

The other specifications challenge the propriety of including allegations of prior offenses in an indictment where a statute provides more severe punishment for one who has previously been convicted of such prior offenses.

ORS 167.050 is such a statute. It reads:

'Violation of ORS 163.210, 163.220, 163.270, 167.035, 167.040, 167.045, 167.145, 167.165 or 167.210 by any person who has previously been convicted of a violation of any one, or more than one, of those sections, is punishable, upon conviction, by imprisonment in the state penitentiary for an indeterminate term not exceeding the natural life of such person.' (Italics added.)

The crime of interfering with the privacy of another is a violation of ORS 167.165. The crime of rape, the previous offense alleged in this indictment, is denounced by ORS 163.210. The penalty provided for violation of ORS 167.165, if prosecuted in the circuit court, is imprisonment in the county jail for not less than three months nor more than one year, or a fine of not less than $50 nor more than $1,000, or both; while the enhanced penalty for that offense under ORS 167.050, where the defendant has been previously convicted of rape or any of the other crimes referred to in that section, is imprisonment in the state penitentiary for an indeterminate term not exceeding the natural life of the person convicted.

The contention that the indictment charges more than one crime is settled adversely to the defendant by our decisions and does not call for discussion. Little v. Gladden, 202 Or. 16, 19, 273 P.2d 443; Castle v. Gladden, 201 Or. 353, 360, 270 P.2d 675; State v. Smith, 128 Or. 515, 524, 273 P. 323.

The question most debated, as to the propriety of including allegations of prior convictions in the indictment, where such convictions are material to the penalty, has also been decided by this court. In two cases entitled State v. Newlin, 92 Or. 589, 596, 182 P. 133, 135, and 92 Or. 597, 599, 182 P. 135, we held, in opinions by Chief Justice McBride, that such an allegation is not only proper but necessary for the validity of a judgment imposing the enhanced penalty. The charge in each of these cases was the unlawful sale of intoxicating liquor, apparently in violation of Oregon Laws 1915, ch. 141. Section 36 of the act provided severer penalties for second and third convictions, but no procedure was prescribed. The indictments failed to allege that the defendant had been previously convicted of violation of the prohibition law, but the circuit court, nevertheless, imposed the increased penalty. On appeal to this court the judgments were set aside and the cases remanded for resentence solely because of the court's error in sentencing the defendant as a second offender. The court said:

'It was also suggested upon the argument that it was error to adjudge the defendant guilty of a second offense and sentence him accordingly, in the absence of an allegation in the indictment charging the prior conviction, and this seems to be the general holding of the courts. 22 Cyc. 356, and cases there cited.'

The mere statement of the case sufficiently shows that the defendant's contention that this holding was dictum is completely lacking in foundation.

The Newlin decisions accord with the great weight of authority. In Massey v. United States, 8 Cir., 281 F. 293, 297, the court referring to statutes providing for greater punishment of second or subsequent offenses by same person, cited decisions of courts of 27 jurisdictions, including Oregon, in support of the following statement:

'* * * It is the established rule, under such statutes, unless the statute designates a different mode of procedure, that, if the prosecutor desires to invoke the severer punishment provided as to second or subsequent offenders, the indictment or information must allege the fact of prior conviction, and the allegation of such conviction must be proved in the trial to the jury.'

The reason for the rule is, as the court there said, that 'The statement of a prior conviction is regarded as a part of the description and character of the offense intended to be punished, and as an essential ingredient of such aggravated offense.' See, also, 1 Bishop on Criminal Law (9th ed.) § 961, quoted in State v. Smith, supra, 128 Or. at page 522, 273 P. 323; III Wharton's Criminal Procedure 2309, § 1877; 1 Wharton's Criminal Evidence (12th ed.) 498, § 233 (1955); 42 C.J.S., Indictments and Informations, § 145, pp. 1057-1059, and the following annotations: 58 A.L.R. 64; 82 A.L.R. 366; 116 A.L.R. 229; 132 A.L.R. 107; 139 A.L.R. 689.

'I regard it,' said Judge Gray in People v. Sickles, 156 N.Y. 541, 547, 51 N.E. 288, 290, 'as a necessary and logical conclusion, where an increased punishment is prescribed by the statute upon conviction for a second offense, that the prior conviction enters as an ingredient into the criminality of the prisoner, not that the fact of the prior conviction tends, in any wise, to prove the commission of the second offense, but that it aggravates the guilt of the prisoner, and, as a hardened or unreformed criminal, subjects him to an increased punishment for the repeated crime.'

Our statute provides that the indictment shall contain 'A statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended.' ORS 132.520(2).

If the prior offense is an ingredient of the crime then it must be alleged in the indictment and the burden is upon the prosecutor to prove it beyond a reasonable doubt. ORS 136.520.

This was the common-law procedure followed in England (Rex v. Jones, 6 Car. & P. 391 [1834]), until it was changed by acts of Parliament, which provided, in substance, that so much of the indictment as charged a prior offense should be withheld from the jury until after a verdict of guilty had been rendered on the current charge, whereupon the question of a previous conviction should be determined by the jury if the defendant should deny it. 6 and 7 Wm. IV, ch. 111; 24 and 25 Vict.Ch. 99, § 27. See Graham v. State of West Virginia, 224 U.S. 616, 625-626, 32 S.Ct. 583, 56 L.Ed. 917. In sustaining the constitutionality of the habitual criminal law of New York, Penal Law, McK.Consol.Laws, c. 40, § 1941, which was subsequently adopted by the Oregon legislature, State v. Smith, supra; Macomber v. State, 181 Or. 208, 217, 180 P.2d 793, the court, in People v. Sickles, supra, 156 N.Y. at page 546, 51 N.E. at page 289, said with reference to the English procedure:

'* * * The very fact that in England it was necessary to enact a statute to remedy what was probably deemed a defect in criminal procedure at the common law tends to show that, until legislation has changed the rule, it is essential that the prior conviction be proved by the people as a part of the case against the prisoner.'

See, also People v. Gowaksy, 244 N.Y. 451, 456, 155 N.E. 737, 58 A.L.R. 9.

By court decision a procedure similar to that now employed in England has been adopted in Connecticut. State v. Ferrone, 96 Conn. 160, 172-176, 113 A. 452. But it should be observed that both in England and Connecticut prior offenses must be alleged in the indictment. It was so expressly held in State v. Delmonto, 110 Conn. 298, 147 A. 825. It should be remembered that we are...

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