State v. Harp

239 Or. 481 (1965)

398 P.2d 182

STATE OF OREGON v. HARP

Supreme Court of Oregon.

Submitted January 8, 1965.

Affirmed January 20, 1965.

Prentiss K. Puckett, Klamath Falls, for appellant.

Dale T. Crabtree, District Attorney, and Sam A. McKeen and John R. Thomas, Klamath Falls, for respondent.

Before McALLISTER, Chief Justice, and PERRY, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, Justices.

AFFIRMED.

McALLISTER, C.J.

The defendant, Otis Eugene Harp, plead guilty to the crime of rape, and was sentenced to imprisonment *482 in the penitentiary for a term not exceeding 20 years. The defendant appeals and contends only that his 20-year sentence constituted cruel and unusual punishment and was not founded upon principles of reformation, but upon vindictive justice. Oregon Constitution, Art. I, §§ 15, 16.

Defendant was convicted of the rape of a female child under 16 years of age, for which the maximum penalty prescribed by ORS 163.210 is 20 years in the penitentiary. The child victim was ten years of age, and was the daughter of defendant's wife. Under the circumstances defendant could have been prosecuted for the rape of a stepdaughter under ORS 163.220, which provides for punishment by imprisonment for life or any lesser period.

Before sentence was imposed on defendant he was sent to the State Hospital at Salem, where he was given a psychiatric examination pursuant to ORS 137.112. The psychiatrist reported that in her opinion "the diagnosis in this case is sociopathic personality, antisocial type; that he constitutes a menace to society." The report of the psychiatric examination was before the court when sentence was imposed on defendant.

In State v. Montgomery, 237 OR 593, 392 P2d 642 (1964) we said that this court should not modify the sentence imposed by the trial court unless it clearly appears that the sentence was the result of improper motives, or was so disproportionate to the offense as to shock the conscience of fair-minded men. We find nothing in this record that would justify us in holding that the trial court abused its discretion in sentencing the defendant to imprisonment for a term not exceeding 20 years.

The judgment is affirmed.