State v. Pruett

Court of Appeals of Oregon

State v. Pruett

586 P.2d 800, 37 Or. App. 183, 1978 Ore. App. LEXIS 2123

Court of Appeals of Oregon·Decided November 14, 1978·No. 7740695, CA 10202·Published·Cited by 19 cases

Opinions

[185] GILLETTE, J.

Defendant was convicted of carrying a concealed weapon in violation of ORS 166.240(1).¹ The complaint charged that he:

“* * * did unlawfully, recklessly and with criminal negligence carry concealed about his person, a knife, other than an ordinary pocketknife, which could be used to injure the person and property of another * * (Emphasis added.)

Defendant demurred to the complaint, claiming that the emphasized language — which is a direct quote from the statute — is unconstitutionally vague and that the statute is therefore void. The demurrer was overruled, and defendant thereafter was found guilty in a trial to the court.

Defendant appeals, arguing that the demurrer should have been sustained and, in the alternative, that the trial court applied an incorrect legal standard in finding the knife — a "sportsman’s” knife with a three and one-half inch blade which folded manually into the handle but locked when in the fully open position — to be within the statutory prohibition.

When a statute is challenged for vagueness, our office is to sustain the statute if we can by giving it a constitutional construction either by narrowing its scope,² or by finding the statute constitutional as applied to the defendant in the particular case.³ We are not called upon to make such an effort here, however, because we consider the knife in question to [186] be an "ordinary pocketknife” under any construction which might reasonably be given to the statute.

Accordingly, defendant’s conviction is reversed.

Footnotes

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[185] GILLETTE, J.

Defendant was convicted of carrying a concealed weapon in violation of ORS 166.240(1).¹ The complaint charged that he:

“* * * did unlawfully, recklessly and with criminal negligence carry concealed about his person, a knife, other than an ordinary pocketknife, which could be used to injure the person and property of another * * (Emphasis added.)

Defendant demurred to the complaint, claiming that the emphasized language — which is a direct quote from the statute — is unconstitutionally vague and that the statute is therefore void. The demurrer was overruled, and defendant thereafter was found guilty in a trial to the court.

Defendant appeals, arguing that the demurrer should have been sustained and, in the alternative, that the trial court applied an incorrect legal standard in finding the knife — a "sportsman’s” knife with a three and one-half inch blade which folded manually into the handle but locked when in the fully open position — to be within the statutory prohibition.

When a statute is challenged for vagueness, our office is to sustain the statute if we can by giving it a constitutional construction either by narrowing its scope,² or by finding the statute constitutional as applied to the defendant in the particular case.³ We are not called upon to make such an effort here, however, because we consider the knife in question to [186] be an "ordinary pocketknife” under any construction which might reasonably be given to the statute.

Accordingly, defendant’s conviction is reversed.

Footnotes

State v. Pruett, 586 P.2d 800, 37 Or. App. 183, 1978 Ore. App. LEXIS 2123 (Or. Ct. App. 1978).

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