State v. Woolard
| Decision Date | 23 June 1971 |
| Citation | 259 Or. 232,484 P.2d 314 |
| Parties | STATE of Oregon, Respondent, v. Mildred Jean WOOLARD, Petitioner. |
| Court | Oregon Supreme Court |
Kenneth C. Hadley, Deputy Public Defender, Salem, argued the cause for petitioner. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Thomas H. Denney, Asst.Atty.Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty.Gen., and Jacob B. Tanzer, Sol.Gen., Salem.
The question in this case is whether the defendant can be convicted and sentenced for the crimes of burglary and larceny, both of which arose out of the same criminal conduct and were charged in two counts in the same indictment.
The indictment charged the defendant with burglary in a dwelling, committed on March third by breaking and entering Apartment 434 with the intent to steal. The second count charged her with larceny in a dwelling, committed on March third by stealing property in Apartment 434. The evidence was that the defendant broke into Apartment 434 and stole property. At the close of the evidence the defendant moved for an acquittal on one or the other of the counts upon the ground that they had identical elements. The jury convicted the defendant on both counts and the trial court sentenced her on each count to six years in the penitentiary, the sentences to run concurrently. The defendant appealed and the Court of Appeals affirmed, 472 P.2d 837.
When we granted the petition for review we were of the opinion that possibly a constitutional issue was involved. Both parties stated at oral argument that no constitutional issue was involved and our study causes us to reach the same conclusion.
In attempting to identify the problem we believe it significant that in this case a course of conduct violates two separate statutes. This situation should be distinguished from a course of conduct which violates the same statute several times. State v. Clark, 46 Or. 140, 80 P. 101 (1905). We also believe the problem is not identical to that in which the defendant is prosecuted in successive trials for crimes arising out of the same conduct. Hoag v. New Jersey, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913, reh. den. 357 U.S. 933, 78 S.Ct. 1366, 2 L.Ed.2d 1375 (1958), but see Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).
In deciding the issue before us, courts have used various lines of reasoning. State v. McAfee, 78 N.M. 108, 428 P.2d 647 (1967), held the defendant could be sentenced to consecutive terms for burglary and larceny. The court categorized the problem as one of 'merger.'
* * *" 78 N.M. at 110-111, 428 P.2d at 649-650.
In deciding whether a defendant could be tried a second time for another crime committed in the same course of conduct, this court has used a somewhat similar test. In State v. Stewart, 11 Or. 52, 4 P. 128 (1883), the issue was whether the defendant who had been convicted of assault and battery was put in double jeopardy by subsequently being convicted of kidnapping, both the assault and the kidnapping being accomplished by the same course of conduct. This depended, the court stated, upon whether the two crimes required the same proof.
"* * * The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offence. A single act may be an offence against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal, or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.' (Gray, J., in Morey v. Commonwealth, 108 Mass. 433, 434.) * * *.' 11 Or. at 52-53, 4 P. 128. Accord, State v. Weitzel, 157 Or. 334, 340, 69 P.2d 958 (1937); State v. McDonald, 231 Or. 48, 52-53, 365 P.2d 494 (1962).
Without indicating whether this court continues to regard that test as the acceptable one to determine whether double jeopardy has been imposed, we do not consider that test as appropriate to determine whether the defendant can be convicted and sentenced for burglary and larceny both committed in the same course of conduct. The test is purely mechanical; it does not deal with the question of whether the legislature intended to allow the state to convict for both offenses. Remington and Joseph, Charging, Convicting, and Sentencing the Multiple Criminal Offender, 1961 Wis.L.Rev. 528, 565.
This court and others have held that whether or not a defendant could be convicted either in single or successive trials for two offenses arising out of the same course of conduct depends upon the intent of the legislature in enacting the statutes creating the offenses. State v. Howe, 27 Or. 138, 44 P. 672 (1895); State v. Nodine, 121 Or. 567, 256 P. 387 (1927); State v. Gerritson, 124 Or. 525, 265 P. 422 (1928).
The United States Supreme Court has used this same approach and decided whether the Congress intended to allow two convictions and sentences for crimes arising out of the same conduct, or only one. In Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957), the defendant was indicted, convicted and sentenced on two counts,--one for stealing money from a bank and the other for entering a bank with the intent to commit a robbery. The statute made each a crime. The Court held he could be sentenced for only one of these crimes:
'We hold, therefore, that when Congress made either robbery or an entry for that purpose a crime it intended that the maximum punishment for robbery should remain at 20 years, but that, even if the culprit should fall short of accomplishing his purpose, he could be imprisoned for 20 years for entering with the felonious intent.
'While reasonable minds might differ on this conclusion, we think it is consistent with our policy of not attributing to Congress, in the enactment of criminal statutes, an intention to punish more severely than the language of its laws clearly imports in the light of pertinent legislative history.' 352 U.S. at 329, 77 S.Ct. at 407.
The Oregon statutes, like the United States statutes interpreted in the two cases above cited, do not expressly indicate any legislative intent. ORS 164.230 provides:
'Any person who breaks and enters any dwelling house with intent to commit a crime therein, or having entered with such intent, breaks any dwelling house, or is armed with a dangerous weapon therein, or assaults any person lawfully therein, is guilty of burglary, and shall be punished upon conviction by imprisonment in the penitentiary for not more than 15 years.' 1 ORS 164.320 provides:
'Any person who commits larceny in any dwelling house, banking house, office, store, shop or warehouse, or in any ship, steamboat or other vessel, or breaks and enters any church, courthouse, meeting house, town house, college, academy or other building erected or used for public uses, and commits larceny therein, shall be punished upon conviction by imprisonment in the county jail for not more than one year or in the penitentiary for not more than seven years.'
The most significant feature of the two statutes is that the mere preliminary act of breaking and entering a dwelling with intent is regarded by the legislature as being much more anti-social than larceny from a dwelling. This is exhibited by the maximum penalty for burglary being fixed at 15 years, whereas the maximum for larceny from a dwelling is seven years. The heinous nature with which the legislature regarded the preliminary act of breaking and entering a dwelling is further accepted by the fact that an intent to commit a serious crime like larceny or any other felony is unnecessary. The requisite intent for burglary exists if there is an intent to commit any crime, no matter how trivial. State v. Huntley, 25 Or. 349, 35 P. 1065 (1894) ().
Under these circumstances, in the absence of some indication that the legislature had a contrary intent, we interpret our statutes to provide that one breaking and entering with the intent to commit larceny can only be convicted and sentenced for either burglary or larceny, but not for both.
The American Law Institute arrived at the same conclusion and recommended a statute expressly forbidding a...
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State v. Cloutier
...crimes arising out of the same criminal conduct and charged in the same indictment, relying on this court's decision in State v. Woolard, 259 Or. 232, 484 P.2d 314, 485 P.2d 1194 (1971), which held that a burglary and subsequent larceny could lead only to one conviction and sentence. The st......
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State v. Linthwaite, s. 80-281-C
...burglary and theft may be convicted and sentenced only for the burglary, had been answered almost a decade earlier in State v. Woolard, 259 Or. 232, 484 P.2d 314 (1971). Cloutier and Woolard examined the legislative intent in such cases and concluded the legislature probably intended the re......
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State v. Nelson
...in the "same course of conduct," the "legislature intended to allow the state to convict for both offenses." State v. Woolard , 259 Or. 232, 235, 484 P.2d 314 (1971). In Woolard , the court took the position that the answer to that question was a matter of legislative intent. 259 Or. at 237......
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State v. Jury
... ... 57 P.3d 974 "The prosecutor makes the point that no objection was made in the trial court to the multiple charge in the indictment, hence, we should not consider this assignment of error * * *. State v. Woolard [, 259 Or. 232, 484 P.2d 314, 259 Or. 232, 485 P.2d 1194 (1971) ], was decided after the trial of the case at bar. We can thus see a reason for no objection having been made. The error substantially affects defendant's status by placing one felony conviction against him which should not exist ... ...