State v. Shumway , 291 Or. 153 ( 1981 )

DENECKE, C. J.

The defendant was convicted of intentional murder and sentenced to life imprisonment. He appealed to the Court of Appeals, contending both that error occurred during his trial and the statute pursuant to which he was sentenced was invalid. The Court of Appeals affirmed. 44 Or App 657, 607 P2d 191 (1980). We granted review.

The defendant contends the instruction on self-defense was erroneous.

The trial court instructed the jury on the affirmative defense of self-defense and the defendant excepted to a portion which implied that the defendant was under a duty to escape and avoid the affray. The Court of Appeals concluded that it was compelled to affirm the conviction due to certain cases decided by this court prior to the enactment of ORS 161.205(4), 161.209 and 161.219, which specify when deadly force may be used in defense of persons. The instruction does not appear to conform to those statutes. We conclude that the error, if any, was harmless because the issue of self-defense was not presented by the evidence.

The defendant and the victim shared an apartment. The defendant killed the victim with the second of two pistol shots. The state’s evidence was that the defendant first shot the victim as the victim, unarmed, was approaching the defendant in a threatening manner. Two state’s witnesses testified that the defendant then walked to the victim’s body as it lay on the floor and fired a second bullet into the victim’s head. The defendant confessed that he fired the second round as the victim was going down from the first. The defendant testified in his defense that he fired the first shot in fear but that the second shot was accidental. He testified that the victim was knocked back on the couch by the first shot, but that he rose and walked to the hall where he fell to the floor. Defendant approached the still body and stood over it with his gun hanging down. Just then the victim’s arm swung around, catching defendant’s leg, and defendant fired the second shot accidentally. He testified on cross-examination that he did not know if he shot intentionally or not and that he did not know if he intended to kill the victim or not.

The affirmative defense of self-defense was clearly raised regarding the first shot, but not the second shot, which was the homicidal act. According to the State’s evidence, the second shot was fired deliberately after any necessity for self-defense had ceased. According to the defendant’s evidence, the second shot was not self-defense. Rather, the defense was accident; i.e., lack of assaultive intent. In these circumstances, the self-defense instruction was superfluous and was more to the benefit of the defendant than to his prejudice.

The defendant’s assignments of error regarding questioning prospective jurors are no longer relevant because they concerned the possibility of the imposition of a death sentence.

The defendant was convicted pursuant to ORS 163.115. This statute was amended by an initiative in 1978. The chief effect of the amendments was to provide that the death sentence could be imposed if the trial court found that certain facts existed and if the death sentence was not imposed and the sentence imposed was life imprisonment the defendant would be required to serve not less than 25 years before becoming eligible for parole.

Subsequent to the initial oral argument in this case, we decided in State v. Quinn, 290 Or 383, 407, 623 P2d 630 (1981), that the provisions of the initiative regarding the death penalty were invalid as being in violation of Art I, § 11 of the Oregon Constitution which provides for the right of trial by jury of all facts constituting the crime.

Because of State v. Quinn, supra, the issue now arises whether the portion of the initiative providing that in the event the judge imposes a life sentence, 25 years of this sentence must be served before the defendant is eligible for parole, is severable from the portion concerning imposition of the death penalty or is the entire initiative invalid?

We asked for further briefs on this issue and for reargument.

We have announced the following principles in deciding the question of severability:

“ qf * * * the constitutional and the unconstitutional portions are so dependent on each other as to warrant the belief that the legislature intended them to take effect in their entirety, it follows that if the whole cannot be carried into effect, it will be presumed that the legislature would not have passed the residue independently, and accordingly, the entire statute is invalid.’ 11 Am. Jur., Consitutional Law, 842, § 155.

“ ‘If the valid and invalid parts are so bound together that the invalid part is a material inducement to the valid portion, the whole is invalid.’ Id., 849, § 157.” Fullerton v. Lamm, 177 Or 655, 697, 163 P2d 941, 165 P2d 63 (1946).

In voting favorably on the initiative, the electorate were voting for greater penalties for murder than were presently in the statutes. If the death penalty were not imposed, the voters favored requiring that when the required life sentence was imposed the defendant serve a long period of time before being eligible for parole. There is no suggestion that if the death penalty were found invalid the voters would not have favored retaining the requirement that the defendant sentenced to life must serve at least 25 years.

We hold the statute requiring the 25 year service before parole is severable from the portion concerning the death penalty.

The defendant contends that the amended ORS 163.115, the statute amended by the initiative, is contrary to the equal protection and due process clauses of the Fourteenth Amendment and that portion of Art I, § 16 of the Oregon Constitution which provides that “* * * all penalties shall be proportioned to the offense.” Defendant contends it is contrary to these provisions because “one convicted of a more serious offense (aggravated murder) is now exposed to a lesser sentence than one convicted of ‘regular’ murder.”

In 1971 the legislature adopted a new criminal code. What is now a part of ORS 163.115 was part of that code. ORS 163.115 provides:

“(1) Except as provided in ORS 163.118 and 163.125, criminal homicide constitutes murder when:

“(a) It is committed intentionally by a person who is not under the influence of an extreme emotional disturbance;

“(b) It is committed by a person, acting either alone or with one or more persons, who commits or attempts to commit arson in the first degree, burglary in the first degree, escape in the first degree, kidnapping in the first degree, rape in the first degree, robbery in any degree or sodomy in the first degree and in the course of and in furtherance of the crime he is committing or attempting to commit, or the immediate flight therefrom, he, or another participant if there be any, causes the death of a person other than one of the participants; or

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It also provides: “(5) * * * a person convicted of murder shall be punished by imprisonment for life * *

In 1977 the legislature created the crime of “aggravated murder.” ORS 163.095 provides:

“As used in ORS 163.105 and this section, ‘aggravated murder’ means murder as defined in ORS 163.115 which is committed under, or accompanied by, any of the following circumstances:

“(l)(a) The defendant committed the murder pursuant to an agreement that he receive money or other thing of value for commiting the murder.

“(b) The defendant solicited another to commit the murder and paid or agreed to pay the person money or other thing of value for committing the murder.

“(c) The defendant committed murder after having been convicted of murder as defined in ORS 163.115.

“(d) The defendant committed murder by means of bombing.

“(2)(a) The victim was one of the following and the murder was related to the performance of the victim’s official duties in the justice system:

“(A) A police officer as defined in subsection (5) of ORS 181.610;

“(B) A correctional, parole or probation officer or other person charged with the duty of custody, control or supervision of convicted persons;

“(C) A member of the Oregon State Police;

“(D) A judicial officer as defined in ORS 1.210;

“(E) A juror or witness in a criminal proceeding;

“(F) An employe or officer of a court of justice; or

“(G) A member of the State Board of Parole.

“(b) The defendant was confined in a state, county or municipal penal or correctional facility or was other- wise in custody when the murder occurred.

“(c) There was more than one murder victim.

“(d) The defendant personally committed the homicide in the course or in the furtherance of the crime of robbery in any degree, kidnapping or arson in the first degree, any sexual offense specified in this chapter, or in immediate flight therefrom.

“(e) The defendant committed murder after having been convicted of manslaughter as defined in ORS 163.118.”

ORS 163.105 provides:

“(1) When a defendant is convicted of murder defined as aggravated murder pursuant to subsection (1) of ORS 163.095, the court shall order that the defendant shall be confined for a minimum of 30 years without possibility of parole, release on work release, temporary leave or employment at a forest or work camp.

“(2) When a defendant is convicted of murder defined as aggravated murder pursuant to subsection (2) of ORS 163.095, the court shall order that the defendant shall be confined for a minimum of 20 years without possibility of parole, release on work release, temporary leave or employment at a forest or work camp.

“(3) At any time after 20 years from the date of imposition of a minimum period of confinement pursuant to subsection (1) of this section, or at any time after 15 years from the date of imposition of a minimum period of confinement pursuant to subsection (2) of this section, the State Board of Parole, upon the petition of a prisoner so confined, shall hold a hearing to determine if the prisoner is likely to be rehabilitated within a reason- able period of time. The sole issue shall be whether or not the prisoner is likely to be rehabilitated within a reasonable period of time. The proceeding shall be conducted in the manner prescribed for a contested case hearing under ORS 183.310 to 183.500 except that:

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As stated, in 1978, by initiative, the people amended ORS 163.115. Part of the initiative enlarged the definition of “murder” to include:

“(c) It is committed by a person, acting either alone or with one or more persons, who places or discharges a destructive device or bomb or who commits or attempts to commit aircraft piracy.”

The initiative also amended § 5 of ORS 163.115 so it now provides:

“(5) Except when a sentence of death is imposed pursuant to ORS 163.116, a person convicted of murder shall be punished by imprisonment for life and shall be required to serve not less than 25 years before becoming eligible for parole.”

As stated, the initiative also provided for the death penalty in certain circumstances. ORS 163.116.

In summary, the aggravated murder statute provides that the convicted person must serve a minimum confinement of either 20 years or 15 years, depending upon the aggravating circumstances, without possibility of parole or release. The murder statute, as amended by the initiative, provides for a sentence of death or life imprisonment and the defendant must serve a minimum of 25 years before being eligible for parole.

The Court of Appeals did not decide the merits of defendant’s disproportionate penalties contention because it was persuaded by the state’s argument that the initiative impliedly repealed the penalty provisions of the aggravated murder statute and, therefore, there was no other penalty to compare with the initiative enacted penalty.

The doctrine of implied repeal of statutes is that when the legislature enacts a subsequent statute which is repugnant to or in conflict with a prior statute, but contains no language expressly repealing the prior statute, the prior statute is impliedly repealed. 1A Sands, Sutherland, Statutory Construction § 23.09 (4th ed 1972). Whether there is an implied repeal depends upon whether the two statutes are conflicting; that is, whether both can be applied or whether a choice has to be made because they are inconsistent. Gen. Elec. Credit Corp. v. Tax Com., 231 Or 570, 592-593, 373 P2d 974 (1962); Anthony v. Veatch, 189 Or 462, 481, 220 P2d 493, 221 P2d 575, cert den 340 US 923, 71 S Ct 499, 95 L Ed 667 (1950).

We conclude that the statutes are not repugnant and, therefore, the initiative did not repeal the aggravated murder statute.

The defendant was charged with intentionally causing the death of the victim by shooting him. Clearly a violation of ORS 163.115, the statute amended by initiative, was charged. None of the means, motives, victims or other circumstances specified in the aggravated murder statute were charged. Defendant could not have been convicted under the aggravated murder statute; therefore, the minimum penalties provided in the aggravated murder statute could not be applicable to defendant. For this reason the portions of the two statutes with which we are here concerned are not conflicting.

Only if certain felony murders or murders by bombing are charged do the statutes conflict. Section 2(d) of the aggravated murder statute provides:

“As used in ORS 163.105 and this section, ‘aggravated murder’ means murder * * * which is committed under * * * any of the following circumstances:

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“(l)(d) The defendant committed murder by means of bombing.

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“(2)(d) The defendant personally committed the homicide in the course or in the furtherance of the crime of robbery in any degree, kidnapping or arson in the first degree, any sexual offense specified in this chapter, or in immediate flight therefrom.”

Section 1(b) of the initiative provides:

“(1) Except as provided in ORS 163.118 and 163.125, criminal homicide constitutes murder when:

«$ * * * *

“(b) It is committed by a person, acting either alone or with one or more persons, who commits or attempts to commit arson in the first degree, burglary in the first degree, escape in the first degree, kidnapping in the first degree, rape in the first degree, robbery in any degree or sodomy in the first degree and in the course of and in furtherance of the crime he is committing or attempting to commit, or the immediate flight therefrom, he, or another participant if there be any, causes the death of a person other than one of the participants; or

“(c) It is committed by a person, acting either alone or with one or more persons, who places or discharges a destructive device or bomb or who commits or attempts to commit aircraft piracy.

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Under these felony murder or murder by bombing provisions, a defendant could be convicted of, for example, robbery in the first degree, and subject to a possible minimum of 15 years of imprisonment without release or parole under the aggravated murder statute and a minimum of 25 years without release or parole under the initiative. However, we do not have to decide if these conflicts would cause us to hold the aggravated murder statute was impliedly repealed. We have repeatedly stated: “Intention to repeal will not be presumed, nor the effect of repeal conceded, unless the inconsistency is admitted, and then only to the extent of the repugnance.” (Emphasis added.) Cabell v. City of Portland, 153 Or 528, 543, 57 P2d 1292 (1936). Justice Lusk stated the proposition:

“* * * Repeals by implication are not favored, and before such repeal is established there must be between two acts ‘plain, unavoidable, and irreconcilable repugnancy, and even then the old law is repealed by implication only pro tanto, to the extent of the repugnancy. ’ Mesick v. Duby, 86 Or. 366, 371, 168 P. 628 (citing 36 Cyc. 1073); * * (Emphasis added.) Noble v. Noble, 164 Or 538, 549, 103 P2d 293 (1940).

Aside from these statements, there is no reason to impliedly repeal a consistent provision in a prior statute merely because another provision is inconsistent, unless the legislative intent is found to be to have the prior statute treated only as an entity.

That one of the statutes with which we are concerned was enacted by a vote of the people rather than the legislature does not affect our consideration. We must determine whether the provisions are conflicting and, if so, apply the doctrine of implied repeal. “It is said that in the construction of statutes there is no essential difference between those enacted by the initiative and referendum and those enacted in the usual way.” Anthony v. Veatch, supra, 189 Or at 496-497.

The dissent and apparently the Court of Appeals would enlarge the doctrine of implied repeal. The essence of those opinions is to assert that if a subsequent statute provides a penalty for an offense that is disproportionate to the penalty in a prior statute for another offense, the intention of the legislature in passing the subsequent statute was to repeal the pre-existing statute. We assume that this approach is based upon the assumption that disproportionate is synonymous with repugnant.

Such an extention of the doctrine of implied repeal could produce some peculiar results. Cannon v. Gladden, 203 Or 629, 281 P2d 233 (1955), is illustrative. In that case the facts were that in 1864 the penalty for rape was fixed at a maximum of 20 years in prison. In 1919 the maximum penalty for assault with intent to commit rape was fixed at life in prison. We held such penalties were disproportionate. By the reasoning of the dissent and the Court of Appeals, because the penalties were disproportionate, the prior existing rape statute with its 20-year maximum sentence would be impliedly repealed.

Following to its logical conclusion the reasoning of the dissent and the Court of Appeals, there is no necessity for Art I, § 16 of the Oregon Constitution. Under the reasoning of the dissent and the Court of Appeals, if a subsequent statute provides for a sentence disproportionate to the sentence provided for another crime, the subsequent statute impliedly repeals the prior statute.

We conclude that those provisions in the two statutes which are applicable to this case are not inconsistent and, therefore, the passage of the initiative did not impliedly repeal the aggravated murder statute.

Having found there was no implied repeal, we must determine whether the statutory scheme is consistent with that part of Art I, § 16 of the Oregon Constitution which requires that “all penalties shall be proportioned to the offense.”

The leading case interpreting Art I, § 16 is Cannon v. Gladden, supra 203 Or 629. The petitioner in that case was charged with statutory rape, convicted of assault with intent to commit rape, and sentenced to life imprisonment. The maximum penalty for either forcible or statutory rape was 20 years; however, the penalty for assault with intent to commit rape was “imprisonment in the penitentiary during the life of such person or for a period of not less than one nor more than twenty years.” Or Laws 1919, ch 42, p 54. We held the life sentence was disproportionate to the offense and held it void.

Cannon v. Gladden, supra, was applied in dicta in Merrill v. Gladden, 216 Or 460, 464, 337 P2d 774 (1959). We stated:

“* * * Therefore, we are of the opinion the crime of assault with an intent to commit robbery must be a lesser included offense of the crime of robbery, and, since our constitution provides that ‘all penalties must be proportioned to the offense,’ we conclude that the penalty assessable for the crime of assault with intent to rob cannot be greater than that provided for the accomplished robbery.”

In the present case the defendant was convicted of intentional homicide and sentenced to life and required, as ORS 163.115 amended by the initiative provides, to serve 25 years before becoming eligible for parole. Whereas, if he had been convicted of intentional homicide, committed under any of the aggravating circumstances provided in ORS 163.095, he would be eligible for parole either 20 or 15 years after sentencing, depending upon the aggravating circumstances.

Under this statutory scheme, a defendant receives a lesser minimum sentence to be served before being eligible for parole for aggravated intentional homicide than he does for an unaggravated intentional homicide. This is in violation of Art I, § 16 of the Oregon Constitution and that provision in ORS 163.115(5) requiring the defendant to serve not less than 25 years before becoming eligible for parole is invalid and cannot be applied to the defendant; the statutory provision requiring a life sentence is valid.

The conviction and sentence to the Corrections Division for the rest of defendant’s natural life is affirmed.