State v. Yancey , 32 Or. App. 477 ( 1978 )

ROBERTS, J.

Defendant was charged with the crime of possession of gambling records in the second degree. Defendant filed a demurrer to the complaint asserting that the statute proscribing the activity is unconstitutionally vague and therefore violates due process. The district court sustained the demurrer and entered an order finding the statute unconstitutional.

ORS 167.132 provides:

"(1) A person commits the crime of possession of gambling records in the second degree if, with knowledge of the contents thereof, he possess any writing, paper, instrument or article:

"(a) Of a kind commonly used in the operation or promotion of a bookmaking scheme or enterprise; or "(b) Of a kind commonly used in the operation, promotion or playing of a lottery or numbers scheme or enterprise.

"(2) Possession of gambling records in the second degree is a Class A misdemeanor.”

The term "lottery” used in paragraph (b) of subsection (1) is defined by ORS 167.117(5) as:

"* * * [A]n unlawful gambling scheme in which:

"(a) The players pay or agree to pay something of value for chances, represented and differentiated by numbers or by combinations of numbers or by some other medium, one or more of which chances are to be designated the winning ones; and

"(b) The winning chances are to be determined by a drawing or by some other method; and

"(c) The holders of the winning chances are to receive something of value.”

As we have stated in the past when a statute is challenged as unconstitutionally vague, it is our obligation to interpret the statute, if possible, in a manner which will result in a finding of constitutionality. City of Portland v. White, 9 Or App 239, 495 P2d 778, rev den (1972); see State v. Hodges, 254 Or 21, 457 P2d 491 (1969); State v. Stick, 5 Or App 511, 484 P2d 861, rev den (1971); State v. Samter, 4 Or App 349, 479 P2d 237 (1971).

This statute is susceptible to such interpretation. It is true that a person of ordinary intelligence might not know what writings, papers, instruments or articles are "of a kind commonly used” in the operation of a bookmaking scheme or a lottery.¹ The statute does, however, require that the person to be charged with the offense have "knowledge of the contents thereof.” We interpret this to require not only knowledge of what the possessed writing, paper, instrument, or article contains but knowledge that it is of the type commonly used in bookmaking or lotteries.²

This requirement of knowledge alleviates any vagueness problem since only a person who the state shows had knowledge that the possessed object is of a type commonly used in a gambling scheme can be convicted. This approach to vagueness problems has been adopted in appropriate cases by the U.S. Supreme Court. Boyce Motor Lines v. United States, 342 US 337, 72 S Ct 329, 96 L Ed 367 (1952); Communication Assn. v. Douds., 339 US 382, 70 S Ct 674, 94 L Ed 925 (1950); United States v. Ragen, 314 US 513, 62 S Ct 374, 86 L Ed 383 (1942).

Reversed and remanded.

1 A statute is unconstitutionally vague if persons of ordinary intelligence must necessarily guess at its meaning. See State v. Debnam, 23 Or App 433, 542 P2d 939 (1975).

2 Requiring knowledge that a writing, paper, instrument or article is of a kind commonly used in a bookmaking or lottery scheme does not violate ORS 161.115(4), which provides:

"(4) Knowledge that conduct constitutes an offense, or knowledge of the existence, meaning or application of the statute defining an offense, is not an element of an offense unless the statute clearly so provides.”

This forbids implying a requirement of knowledge of the law as one of the elements of the crime. As such it is a legislative restatement of the rule that everyone is presumed to know the law. Here, we are requiring a showing of knowledge of the fact that an item is of a kind used in a gambling scheme.