Donald Allen Hibbard, Appellant, v. Clarence T. Gladden, Warden, Oregon State Penitentiary, Appellee, 368 F.2d 311 (9th Cir. 1966)

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U.S. Court of Appeals for the Ninth Circuit - 368 F.2d 311 (9th Cir. 1966) October 18, 1966

Donald Allen Hibbard, in pro. per.

Robt. Y. Thornton, Atty. Gen. of Or., David H. Blunt, Asst. Atty. Gen., Salem, Or., for appellee.

Before BARNES and DUNIWAY, Circuit Judges, and MATHES, District Judge.


Appellant seeks relief through his petition for a writ of habeas corpus because of the alleged unconstitutionality of O. R.S. 163.250 (assault with a dangerous weapon), a felony, by reason of the existence of O.R.S. 163.320 (pointing a gun at another), a misdemeanor. Appellant urges that the two statutes cover one act. Appellee asserts the two statutes define two separate and distinct acts and crimes.

Since this petition was originally ordered filed on March 23, 1965, in the United States District Court of Oregon, the Supreme Court of Oregon, on September 8, 1965, ruled there exists a rational distinction between the acts denounced in O.R.S. 163.250 and O.R.S. 163.320, and that two distinct and separate criminal acts are proscribed. Rose v. Gladden, 241 Or. 202, 405 P.2d 543. See also State of Oregon v. Baker, 81 Or. adv. sh. 747, 408 P.2d 928, decided December 15, 1965.

The Oregon Supreme Court ruling interpreting the difference between the two statutes is binding precedent for this court.