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Oregon v. Franzone

June 3, 1966

STATE OF OREGON
v.
FRANZONE



Appeal from Circuit Court, Multnomah County. Virgil Langtry, Judge.

Julian Herndon, Jr., Portland, argued the cause and filed a brief for appellant.

George M. Joseph, Deputy District Attorney, Portland, argued the cause for respondent. With him on the brief was George Van Hoomissen, District Attorney, Portland.

In Banc. Lusk, Justice. McAllister, Chief Justice, and Perry, Sloan, Goodwin, Denecke and Holman, Justices.

Lusk

The defendant was indicted for violation of ORS 161.310, generally known as the nuisance statute.*fn1

Defendant demurred to the indictment on various grounds and the demurrer was overruled. The parties thereafter entered into a so-called stipulation of facts, which, however, consists only of a repetition of the allegations of the indictment. Trial was had on such stipulation before the court without a jury and the court entered a judgment of conviction from which the defendant appeals.

The indictment alleges:

"FRANK FRANZONE is accused by the Grand Jury of the County of Multnomah and State of Oregon, by this indictment of the crime of COMMITTING AN OFFENSE WHICH OPENLY

OUTRAGES THE PUBLIC DECENCY committed as follows:

"The said FRANK FRANZONE on or about the 15th day of January, A.D. 1964, and on divers other days and times between that day and the day of presentment of the within indictment in the County of Multnomah, State of Oregon, did unlawfully, wilfully and wrongfully commit a certain act which openly outraged the public decency and was injurious to public morals, in that the said FRANK FRANZONE did obtain money of the United States of America from persons charged with violations of motor vehicle traffic laws and ordinances in courts within the State of Oregon, upon the representation and claim that he, the said FRANK FRANZONE, would obtain dispositions of the aforesaid motor vehicle traffic violation charges favorable to the persons so charged, and such dispositions to be had other than pursuant to the due course of law, and the said FRANK FRANZONE did obtain money of the United States of America from one Robert Wrenn upon the representation and claim that he, the said FRANK FRANZONE, would obtain a disposition favorable to the said Robert Wrenn of a motor vehicle traffic violation charge then pending against the said Robert Wrenn in a court within the State of Oregon, and such disposition to be had other than pursuant to the due course of law, and the said FRANK FRANZONE did obtain money of the United States of America from one Dennis Arant upon the representation and claim that he, the said FRANK FRANZONE, would obtain a disposition favorable to the said Dennis Arant of a motor vehicle traffic violation charge then pending against the said Dennis Arant in a court within the State of Oregon, and such disposition to be had other than pursuant to the due course of law, and the said FRANK FRANZONE did obtain money of the United States of America from one Leonard Tucker upon the representation and claim that he,

the said FRANK FRANZONE, would obtain a disposition favorable to the said Leonard Tucker of a motor vehicle traffic violation charge then pending against the said Leonard Tucker in a court within the State of Oregon, and such disposition to be had other than pursuant to the due course of law, contrary to the Statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.

"* * *"

Defendant assigns as error the ruling on the demurrer. He contends that ORS 161.310 is unconstitutional -- that it is "void for vagueness," and a conviction under it violates the due process clause of the Fourteenth Amendment of the Constitution of the United States.

The nuisance statute has been part of the law of this state since 1864, and, as hereinafter shown, has been applied to various classes of conduct in cases that have come to this court. The statute was attacked for vagueness, though not apparently on constitutional grounds, in State v. Ayers, 49 Or 61, 88 P 653, 10 LRA NS 992, 124 Am St Rep 1036. The constitutionality of the statute seems to have been first directly challenged in 1954, in the case of State v. Elliott, 204 Or 460, 277 P2d 754, in which we held that the maintenance and operation of an abortion clinic was an offense under the statute and that the statute was constitutional as applied to that case. The court reasoned that, since it had been previously determined in State v. Atwood, 54 Or 526, 102 P 295, 104 P 195, 21 Ann Cas 516, that the act charged was covered by the ...


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