State v. Waterhouse

*440 PERRY, C.J.,

dissenting.

I am unable to agree with the majority opinion and, therefore, feel that I should set forth my separate views.

It appears that the majority opinion relies upon State v. Newlin, 92 Or 589 , 182 P 133 , which holds [p. 596] that an enhanced penalty cannot be imposed by the trial judge “in the absence of an allegation in the indictment charging the prior conviction. ’ ’ This holding is based upon a rule of law, according to the majority opinion, 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.” Massey v. United States, 281 F 293, 297. The reason being 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.”

The majority opinion then points out that this rule of procedure was adopted into this country from the common law of England and, because such procedure “was, probably, deemed a defect in criminal procedure,” it later was changed by statute in England.

It is then argued that, because in the Habitual Criminal Act, ORS 168.011 to 168.040, there is provided a procedure for invoking the enhanced penalty, its absence from ORS 167.050 shows the legislative intent that the procedure known to the common law should be observed. It is upon this point that I cannot agree with the majority.

As a foundation upon which to build the argument that we must use the common-law procedure, the majority state in effect that the prior offense is “an *441 ingredient” of the second offense. People v. Sickles, 156 NY 541 , 51 NE 288 .

Note should be taken that, in the Sickles ease, in order to reach that conclusion it was necessary to overrule, in effect, the logical language of Judge Finch in People v. Raymond, 96 NY 38, 39 , where the court stated:

“The first offense was not an element of or included in the second, and so subjected to added punishment, but is simply a fact in the past history of the criminal, which the law takes into consideration when prescribing punishment for the second offense. That only is punished.”

And it should be further noted that the New York court recognized the entire problem as solely a procedural matter, for in People v. Sickles, supra, p. 289 , it stated:

“The statute, in question, is not dealing with, nor regulating, criminal procedure, but is declaring the enhanced penalty which a subsequent offender against the laws of the state will incur upon conviction. When the People present a case under its provisions, the procedure to establish it is governed by the provisions of the Code of Criminal Procedure.” (Italics ours.)

While the majority are willing to add the prior offenses to the indictment as a part of the subsequent-offense charged to make the common-law procedure applicable, they seem to be unwilling to follow the clear dictates of the legislature upon this procedural point. Logically, ORS 1.160 must be interpreted with ORS 167.050. ORS 167.050 is only an enhanced penalty statute with no procedure set out therein for its enforcement. ORS 1.160 provides procedure for that very situation.

*442 As will be later pointed out, the Newlin case, supra, relied upon by the majority as stare decisis of the issue presented, is neither authority for nor against the position taken. That case, as pointed out in the majority opinion, was decided before the legislature had enacted any similar statute governing procedure where an act provided for an enhanced penalty for prior offenders.

The law of England as it existed at the time of the American Revolution was adopted as a part of the organic law of this state (United States F. & G. Co. v. Bramwell, 108 Or 261 , 217 P 332 , 32 ALR 829 ) only insofar as the law was cognizance with the public policy, the constitution, and statutory enactments of the state. Re Water Rights of Hood River, 114 Or 112 , 227 P 1065 ; Pacific Power & Light Co. v. Bayer et al., 273 US 647 , 47 SC 245, 71 L Ed 821 ; Peery v. Fletcher, 93 Or 43 , 182 P 143 .

ORS 1.160 provides:

“When jurisdiction is, by the constitution or by statute, conferred on a court or judicial officer, all the means to carry it into effect are also given; and in the exercise of the jurisdiction, if the course of proceeding is not specifically pointed out by the procedural statutes, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of the procedural statutes.” (Italics ours)

We have held this act applicable to our code of criminal procedure. State v. Ridder, 185 Or 134 , 202 P2d 482 ; State v. Chase, 106 Or 263 , 211 P 920 .

ORS 1.160, properly interpreted, it seems to me, clearly states that when a judge is granted jurisdiction to sentence under an enhanced penalty statute, and no procedure is provided in that statute, a mode of procedure must be adopted by the courts most conformable *443 with the spirit of any procedural statutes then existing by prior enactment covering a similar situation. The Habitual Criminal Act provides procedure for just such a situation as is now before us, and it is clear to me that the legislature intended that we use the mode of procedure provided under that act. Since by statute the courts are directed to use a mode of procedure most conformable to the spirit of our own procedural statutes, if, as here, we have a procedural statute applicable to a situation similar in nature, the courts are required to follow the laws of this state and cannot proceed as at the common law.

The opinion of the majority leaves with the prosecuting officer in each jurisdiction the option of invoking the enhanced penalty statute or not, as he shall see fit. It also permits no method by which a vicious offender may be made subject to the enhanced penalty statute unless his prior crimes are known and alleged prior to his conviction upon a second offense.

Therefore, in my mind, there is no room for argument that the courts of this state must rely upon outmoded procedures that are admittedly defective, contrary to public policy, and shock our American sense of justice.

I would affirm the trial court, and, therefore, dissent.

Mr. Justice Warner concurs in this dissent.