BARNETT v. GLADDEN, 237 Or. 76

PERRY, J. This is an appeal by the petitioner from the denial of the relief sought in a post-conviction hearing as provided in ORS 138.510 et seq. The record in this proceeding discloses that on March 21, 1960, the petitioner was indicted in Umatilla County, Oregon. The charging part of the indictment reads as follows: “The said John H.

Barnett, on the 13th day of March, A.D., 1960, in the County of Umatilla and State of Oregon, then and there being, and then and there being a male person over the age of 16 years, to-wit, 62 years of age, did then and there wilfully, wrongfully, unlawfully and feloniously attempt to induce and entice into a place of concealment, to-wit, an apartment in the City of Pendleton, in said County and State, a female child, to-wit, Jean Corwin, under the age of 16 years, to-wit, of the age of 14 years, with the intent and purpose to commit with and upon such child a sex act, to-wit, sexual intercourse, said act of defendant being contrary to tbe statute in such, cases made and provided, and against the peace and dignity of the state of Oregon.” Counsel was appointed and the petitioner entered a plea of former judgment of conviction of the crime charged.

The trial court held the plea to be without merit and petitioner thereupon entered a plea of not guilty. Subsequently petitioner withdrew his plea of not guilty and entered a plea of guilty to the crime charged in the indictment. Thereafter, the trial court directed that a psychiatric examination of the defendant be made before sentence was imposed.

The examination of the petitioner, made at the Eastern Oregon State Hospital, disclosed that petitioner “has a mental or emotional disturbance, deficiency or condition * * * to a degree rendering the person a menace to the health and safety of others.” The trial court thereupon sentenced the petitioner to life imprisonment. No appeal was taken from the judgment entered. In this proceeding, the petitioner first contends that the indictment to which he entered his plea of guilty failed to state a crime, and, therefore, the court was without jurisdiction. ORS 167.045 reads as follows: “

(1) No person over the age of 16 years shall wilfully and wrongfully and forcibly take from any place, or wilfully and wrongfully and forcibly detain in any place, or wilfully and wrongfully induce or entice into any place of concealment or upon any type of conveyance, any child under the age of 16 years with the intent to commit with or upon such child any act punishable under ORS 163.210, 163.220, 163.270, 167.035 or 167.040.” It is the contention of the petitioner that the indictment is faulty in that it fails to allege the specific acts of inducement used by petitioner.

The specific acts or circumstances by which a crime is committed are generally not necessary to a valid indictment, it being sufficient if the offense is charged in the words of the statute. State v. Smith, 182 Or 497, 188 P2d 998. It is only when the doing of certain particular acts are made necessary by the terms of the statute to constitute the crime that the particular acts must be alleged. Merrill v. Gladden, 216 Or 460, 337 P2d 774. The statute under which petitioner was charged does not require the use of any particular means or method of inducement in committing the crime.

The indictment is, therefore, sufficient. Also, it is only when an indictment fails to allege any crime that a court is without jurisdiction. The fact that an indictment may allege a conclusion and not particular facts is not grounds for post-conviction hearing relief. State v. Cloran, 233 Or 400, 374 P2d 748, 377 P2d 911, 378 P2d 961; Smallman v. Gladden, 206 Or 262, 291 P2d 749. The petitioner also contends that his sentence to life imprisonment for attempt to commit the crime charged is not authorized by law. Had he committed the crime charged the maximum punishment authorized by law is life imprisonment.

ORS 167.045. For attempts to commit crimes, ORS 161.090 provides the punishment as follows: “

(1) If the crime so attempted is punishable by imprisonment in the penitentiary or county jail, the punishment for the attempt shall be by like imprisonment for a term not more than half the longest period prescribed as a punishment for the crime but in no event more than 10 years. If the crime so attempted is punishable by death, or imprisonment for life, the punishment for the attempt shall be by imprisonment in the penitentiary for not more than 10 years.” The petitioner contends, therefore, that his term could not exceed 10 years.

In the matter of sex crimes, the legislature in OES 137.111 provided: “After the presentence hearing and upon the consideration of the psychiatric report required by ORS 137.112 to 137.115, the court may, in its discretion, in lieu of any other sentence authorized by law for such crime, sentence any person convicted under ORS 163.210, 163.220, 163.270, 167.035, 167.040 or 167.045 to an indeterminate term not exceeding the natural life of such person if: “

(1) The offense involved a child under the age of 16 years; and “

(2) The court finds that such person has a mental or emotional disturbance, deficiency or condition predisposing him to the commission of any crime punishable under ORS 163.210, 163.220, 163.270, 167.035, 167.040 or 167.045 to a degree rendering the person a menace to the health or safety of others.” In our opinion, an attempt to commit a sex crime falls within the ambit of legislative intention expressed in OES 137.111, as fully as if the crime denounced had been completed. The purpose of the statute is to provide for the rehabilitation of a sex offender who has disclosed a tendency to be a menace to society.

Jensen v. Gladden, 233 Or 439, 378 P2d 950. The petitioner also contends that his federal and state constitutional rights were violated in that he was twice tried and convicted of the same offense. It is unnecessary for us to set forth the basis of petitioner’s contention for, as previously stated, the record in this proceeding discloses that after the trial court for Umatilla County ruled that petitioner’s plea of prior conviction for the same offense was not well-taken and petitioner had entered a plea of not guilty, he thereafter entered a plea of guilty to the crime charged in the indictment.

It is well-established, that the defense of former conviction or acquittal for the same offense is a personal privilege that may be waived by a defendant. State v. Monk, 199 Or 165, 260 P2d 474; Gue v. City of Eugene, 53 Or 282, 100 P 254; State v. Houghton, 45 Or 110, 75 P 887; State v. Childers, 32 Or 119, 49 P 801; Brady v. United States, 24 F2d 399, and cases cited therein. Mr. Justice Rand stated the rule in State v. Lewis, 113 Or 359, 361, 230 P 543, 232 P 1013: “* * * where a defendant in a criminal action pleads not guilty or pleads a former conviction or acquittal, an issue of fact arises: Sec. 1509, Or.

L. [now ORS 136.010]. But where a defendant enters a plea of guilty, no issue of fact can arise since by pleading guilty of the crime charged in the indictment, the defendant admits every fact alleged in the indictment.

A plea of guilty is a confession of guilt and is equivalent to a conviction and leaves nothing for a court to do except to pronounce sentence the same as it would be required to do upon a verdict of guilty. ‘Where the statute permits the plea of guilty and such a plea is accepted and entered by the court in a criminal case, it is the highest kind of conviction of which the case admits.’ 16 C.J. 403, note c.” (Emphasis ours.) It is equally well-established, that a plea of guilty, given in compliance with the requirements of due process, waives all defenses that could have been made at the trial of the cause, since, “* * * by a plea of guilty, all averments of fact are admitted, all defects not jurisdictional are cured, all defenses are waived and the prosecution is relieved from the duty of proving any facts.” Berg v.

United States, 176 F2d 122, 125; cert. denied 338 US 876, 70 S Ct 137, 94 L ed 537; 22 CJS 712, Criminal Law § 277. In accord with the above rules of law, the courts hold that, where a plea of former jeopardy and also a plea of not guilty is entered by a defendant and he subsequently enters a plea of guilty, the defense of double jeopardy is waived even though not withdrawn. People v. Strickler, 167 Cal 627, 140 P 270; State v. Carte, 157 Kan 139, 138 P2d 429; State v. Carte, 157 Kan 673, 143 P2d 774; Lawton v. Hand, 186 Kan 385, 350 P2d 28; Rex v.

Pope, 7 Alberta L Rep 169, 15 Dominion L Rep 664, 26 West L Rep 659, 5 West W Rep 1070, 22 Can Crim Cas 327. In State v. Carte, 157 Kan 673, 677, 143 P2d 774, 776, the court stated: “It is always well to bear in mind the clear distinction between the subjects of sentence and former jeopardy. Judgment of sentence can be pronounced only after a person has been put on trial and after he has been convicted of, or has pleaded guilty to, the offense or offenses charged.

Section 10 of our bill of rights, insofar as pertinent here, provides: ‘No person shall be twice put in jeopardy for the same offense.’ (Emphasis theirs.) “It will be observed the protection afforded by this provision is not against the peril of second sentence or punishment but against being put on trial again for the same offense. (People v.

Allen, 368 Ill. 368, 383, 14 N.E.2d. 397.) Having waived the defense of former jeopardy, assuming she had such a defense, sentence was properly imposed on the plea of guilty to each offense charged and the sentence cannot be set aside now.” While the post-conviction statute supersedes the statutory right of habeas corpus, the relief afforded by habeas corpus for denial of constitutional rights is retained. However, the failure to appeal from an adverse ruling in the trial court as to the matter of prior jeopardy waives the defense and it cannot be considered in habeas corpus. In re Harron, 191 Cal 457, 217 P 728.

Where a plea of guilty has been entered, the question of error in denying a plea of prior jeopardy will not be considered in habeas corpus. Bracey v. Zerbst, 93 F2d 8. In the absence of a question of due process, a matter subject to correction on appeal will not be heard in a post-conviction hearing. Brooks v. Gladden, 226 Or 191, 358 P2d 1055. It is clear, therefore, that in the absence of any contention of denial of due process, a circumstance not claimed by the petitioner, the privilege of presenting the defense of prior conviction was waived.

Finding no error in the record, the judgment of the trial court is affirmed.