Jack R. Delaney v. Clarence T. Gladden, Warden Oregon State Penitentiary

Jack R. Delaney, in Oregon State penal custody under a judgment of conviction entered on July 9, 1958, and sentence imposed thereunder, appeals from a district court order denying his application for a writ of habeas corpus.

Delaney was indicted and convicted of unlawfully, feloniously and forcibly assaulting an adult female with intent to commit rape, in violation of Ore.Rev. Stat. § 163.270. The maximum punish ment for this crime is imprisonment for twenty years. Or.Rev.Stat. § 163.210. Delaney was sentenced to imprisonment for fifteen years.

He contends that the offense defined in section 163.270 is identical with the offense of attempted rape, as defined in Or.Rev.Stat. § 161.090, for which the maximum punishment is imprisonment for ten years. Accordingly, Delaney argues that the two statutes, read together, conferred upon the prosecutor discretionary power to prosecute Delaney under either one of two statutes prescribing disparate penalties. Since the prosecutor chose to prosecute him under section 163.270, which prescribes the higher maximum penalty, and Delaney was given a heavier sentence thereunder than could have been imposed under section 161.090, he contends that he…