State v. Lee

453 P.2d 170, 254 Or. 295, 1969 Ore. LEXIS 372

Opinions

SLOAN, J.

The indictment against defendant, in three separate counts, charged him with the statutory rape of a 16-year-old girl, contributing to the delinquency of a minor and a third count charging sodomy. The first two charges related to the same identical conduct. The jury acquitted on the last count but convicted him of the first two. The court imposed consecutive sentences on the two charges he was convicted of. Defendant appeals from the judgment.

The second count in the indictment charged that the acts of contributing were the touching, fondling and feeling the private parts of the girl. There was no evidence of any touching of the private parts except by the touching which accomplished the rape. Defendant moved for a directed verdict of acquittal with the claim that the touching must be by the hand and since there was no evidence of such a touching, the allegation of the indictment was not proved. This claim has no merit.

We think, however, the result of the double conviction and the sentences imposed in this case are so unjust that we should notice the problem even though it was not presented to the trial court in any form.

Defendant was convicted of statutory rape. If proper instructions had been requested, by either the state or defendant, and given the jury could have been told that it could not find defendant guilty of both crimes upon evidence of the same criminal conduct; that he was guilty either of rape or contributing but not both. People v. Greer, 1947, 30 Cal2d 589, 184 P2d 512.

The double convictions and penalties imposed, we think, justify the court in exercising its “inherent power to modify the judgment of a lower court.” State v. Braley, 1960, 224 Or 1, 13 et seq., 355 P2d 467.

The judgment on the first count is affirmed and the conviction on the second count is, therefore, reversed and set aside.