Caseflicks

Oregon Supreme Court • 1959

State v. Wilson

346 P.2d 115 | 218 Or. 575 | 79 A.L.R. 2d 587 | 1959 Ore. LEXIS 443

Full access

Unlock the video and quiz

The written brief is free to read below. Subscribe to watch the video explainer and take the quiz.

Create an account Log in

Takeaway

In short, this case holds that Oregon's general attempt statute reaches conduct that has moved beyond preparation toward an assault with a dangerous weapon, even though the defendant was stopped before attaining the present ability to injure the intended victim.

Background

Harvey Raymond Wilson went to the laundry room where his estranged wife worked after previously threatening that she had only twenty-four hours to live. When she tried to call police, Wilson tore the telephone from the wall and threw it. He then went to his nearby car, retrieved a loaded shotgun, and returned to the hotel.

As Wilson approached the laundry area with the gun positioned to fire, his wife began to emerge from an office. Another employee pushed her back into the office, and the doors were shut. Wilson entered the laundry room, stood close to Vivian Smith and another employee, pointed the loaded shotgun, and warned them not to move or he would shoot. Police apprehended him as he left.

A Multnomah County jury convicted Wilson of attempted assault with a dangerous weapon against his wife under Count I and assault with a dangerous weapon against Smith under Count II. Wilson appealed, arguing that Oregon did not recognize attempted assault with a dangerous weapon, that the general attempt statute was unconstitutionally indefinite if applied to that offense, and that his wife should not have been allowed to testify.

Issues

Issue #1

Whether Oregon law recognizes the crime of attempted assault with a dangerous weapon.

Holding

Yes. The general attempt statute, ORS 161.090, permits prosecution for an attempt to commit assault with a dangerous weapon.

Reasoning

Wilson argued that assault is itself an attempted battery, so an attempted assault would be the logically impossible offense of an “attempt to attempt.” The court rejected the premise that this linguistic formulation resolves the legal question. Criminal assault may properly be treated as a distinct substantive offense, even though it falls short of an actual battery.

Oregon decisions had described assault in differing terms. Some focused on conduct creating a reasonable apprehension of immediate injury; others defined it as an intentional attempt to injure coupled with present ability to do so. Either formulation identifies a distinct harm before a battery occurs: the victim is placed in fear or exposed to imminent physical danger.

Even under the present-ability formulation, the court held that conduct can fall between mere preparation and a completed assault. A person who arms himself, approaches an intended victim, and is stopped before reaching a position from which he can inflict injury has taken sufficiently direct steps toward assault to commit an attempt.

Wilson's conduct met that standard. After obtaining the loaded shotgun, he returned to the hotel and proceeded toward his wife. Although the locked office doors may have prevented him from having the present ability to injure her at that moment, his actions had gone well beyond preparation and were properly treated as an attempt to commit assault with a dangerous weapon.

The court viewed the contrary rule as a barren logical construction that would prevent courts from imposing an appropriately lesser punishment when conduct strongly threatens an aggravated assault but does not culminate in one. The general attempt statute was intended to reach precisely this kind of incomplete criminal conduct.

Issue #2

Whether ORS 161.090 is unconstitutionally indefinite if it covers attempted assault with a dangerous weapon.

Holding

No. The statute is not unconstitutional merely because applying attempt law requires a fact-specific judgment about when preparation becomes punishable conduct.

Reasoning

Wilson's vagueness objection was, in substance, an objection to the general law of criminal attempt. Attempt doctrine necessarily requires courts to decide case by case whether a defendant has progressed beyond preparation toward commission of the intended crime.

The court found no special uncertainty in applying that inquiry to attempted assault. Drawing the line between preparation and punishable attempt in an assault case is no more difficult than drawing it for other attempted crimes.

Issue #3

Whether the trial court erred by allowing Wilson's wife to testify when Count II concerned an assault on another person.

Holding

No. Her testimony was permissible under the exception for personal violence between spouses, and Wilson did not identify any testimony exclusively attributable to Count II.

Reasoning

Oregon's spousal-testimony rule allowed one spouse to testify against the other in cases involving personal violence by one spouse against the other. Because Count I validly charged an attempted assault with a dangerous weapon against Wilson's wife, that exception applied to her testimony concerning the incident.

Wilson argued that the wife also testified about Count II, which involved Vivian Smith rather than the wife. But the testimony described the overall episode, was not elicited separately by count, and Wilson did not identify any portion that concerned only Count II. The court therefore found no basis for reversible error.

Dissents

Chief Justice McAllister

Reasoning

Chief Justice McAllister dissented from the judgment. The reported opinion does not include a separate dissenting opinion or state the reasoning for his disagreement.