State v. Gann

PERRY, C. J.,

concurring in part; dissenting in part.

The defendant Timothy Earl Gann was indicted and convicted of violating ORS 163.635. From the judgment of conviction defendant appeals.

ORS 163.635 reads as follows:

“(1) A prisoner in the Oregon State Penitentiary or Oregon State Correctional Institution who wilfully holds a person as a hostage within such institution shall be punished upon conviction by imprisonment in the state penitentiary for a period of not more than 20 years.

“(2) If a person is being held as a hostage in the Oregon State Penitentiary or Oregon State Correctional Institution by a prisoner and is lolled as a result thereof, any prisoner who wilfully par *572 ticipated in the killing of such person, is guilty of murder in the first degree. urn # * *

The undisputed evidence is that about 4:00 p.m. on March 9,1968, a riot started near the control room of the Oregon State Penitentiary after an inmate attacked an officer who had corrected him for moving out of the line of prisoners on their way to a cell block. The officers in and near the control room while trying to go to the aid of the officer attacked were overcome by other prisoners. The officers were all taken to a cell in E block and told to stay in there. About midnight a fire started in E block and the officers were taken from the cell by the prisoners to an area under the baseball bleachers in the recreational yard of the prison.

While the officers were in the recreational yard, the defendant and others were stationed there as guards.

There is no evidence that after the officers were taken prisoners any demands were made by the inmates upon any person as a condition for the release of the officers, or even why they continued to hold the prisoners, other than the evidence of the defendant that it was for the protection of the officers.

In the trial court, after both parties had rested, the defendant moved the court for a directed verdict of acquittal, which was denied. The trial court’s denial of this motion is assigned as error.

The term “hostage” had its origin in international law and has been defined in this connection as follows :

“A person who is given into the possession of the enemy, in a public war, his freedom (or life) *573 to stand as security for the performance of some contract or promise made by the belligerent power giving the hostage with the other.” Black’s Law Dictionary 871 (rev 4th ed, 1968).

“A hostage, in international law, means a person given up to an enemy, as a security for the performance of a contract made between belligerent powers, or their subjects or citizens. See, 30 Corpus Juris.” 19 Words and Phrases 662.

“* * * [A] person or sometimes a thing left as a pledge or surety for the performance of the articles or conditions of a treaty. The taking or giving of hostages is now scarcely known in the relations of modern communities, but was formerly almost universal, and many questions in the law of nations arose out of the practice. Writers on international law have discussed how far the rights of conquerors extend over hostages, what circumstances may release them from their obligation and what effect their escape will produce on the treaty proposed by the contracting parties.” 14 Encyclopedia Americana 434 (1957).

The most modern definitions of the meaning of the word “hostage” are set forth in The American Heritage Dictionary of the English Language (1969) as “a person held as security for the fulfillment of certain terms;” and in Webster’s Third New International Dictionary: “The state of a person given or kept as a pledge pending the fulfillment of an agreement, demand or treaty.” (Emphasis supplied.)

It is clear, therefore, that the word “hostage,” used in any context, is a word of art to describe the state of a person held captive, and connotes that the person so held is held for the purpose of requiring another to perform some act before his release can be effected.

I am, therefore, unable to agree with the cavalier treatment afforded OBS 163.635 by the majority.

*574 While ORS 161.050, relied upon by the majority, relieved the courts from the common-law rule of strict construction of criminal statutes, it did not relieve the courts from being required to follow the cardinal rule in the construction of statutes to ascertain from the language used by the legislature what purpose was to be served, or what objective was to be obtained. State v. Collis, 243 Or 222 , 413 P2d 53 ; Appling v. Chase, 224 Or 112 , 355 P2d 631 ; Swift & Co. and Armour & Co. v. Peterson, 192 Or 97 , 233 P2d 216 . Nor did it permit the courts to extend the meaning of a penal statute to include any act not clearly and intelligibly described by words used therein. State of Oregon v. Smith, 198 Or 31 , 255 P2d 1076 . Nor does ORS 161.050 permit this court to legislate by either excising or extending beyond their natural meaning words used in the act. State of Oregon v. Brantley, 201 Or 637 , 271 P2d 668 ; State of Oregon v. Smith, supra; Union Pac. R.R. Co. v. Anderson, 167 Or 687 , 120 P2d 578 .

ORS 163.635 was adopted verbatim from the state of Massachusetts, 19 MGLA, chap 127, § 38A. See minutes of committee hearings. Also at the hearing a discussion was had concerning defining “hostage” and it was thought unnecessary.

Other states (and their statutes were undoubtedly consulted by the committee) which intend to enlarge the scope of the crime to include the holding of an officer against his will or for some purpose other than as a “hostage”, so state or use other suitable language such as “to prevent the officer from performing his official duties.”

Fla. St. Ann. § 944.44: holds person as a “hostage” or “holds any person or persons against their will.”

Rev. Code Wash Ann, 9.94.030: holds a person as *575 a “hostage” or shall prevent the officer from performing his official duties.

Pa Stat Ann, tit 18, § 4723.1: whenever any prisoner takes “any person as a hostage, or for any other reason,” he is guilty of a felony.

It is common knowledge that on many occasions prison inmates have seized officers and held them prisoners in order to enforce their demands upon the prison officials. Certainly for this court to assume that the legislature did not intend to use the word “hostage” in its ordinary meaning in two places in the statute is unmitigated license.

Even under the definition of “hostage” adopted by the majority there is no evidence in this case that would sustain the judgment.

There is not the slightest evidence of what, if any, advantage the inmate gained or was purported to have gained by the holding of the officers. This fact is admitted by the majority, but to supply this necessary proof they argue that, because there was a riot in progress, the jury could infer from this fact alone beyond a reasonable doubt the holding was for the purpose of exploitation.

“An inference is a deduction which the reason of the jury makes from the facts proved * * ORS 41.320.

In this case, there is only a showing that a riot was in progress. With ho other facts to show the purpose of the holding of the captives, I am unable to understand how this court can permit a jury to speculate on the unexpressed mental purpose of this defendant. Inferences may only be drawn from established facts which tend to show that purpose. Certainly no one would contend that solely on evidence *576 that a strange man forceably struck a woman on the street that a conviction for assault with intent to commit rape could be sustained.

For the above reasons I would reverse this judgment with instructions to enter a verdict of not guilty.

I concur in the majority’s opinion in all other respects.