In these two criminal cases, consolidated for the purposes of appeal, defendants each were charged with one count of aggravated murder, ORS 163.095(1)(e), and two counts of felony murder, ORS 163.115(1)(b), all the charges arising out of the death of the same victim. The section of the aggravated murder statute under which they were charged elevates murder to aggravated murder when the murder is committed "in the course of or as a result of intentional * * * torture of the victim." ORS 163.095(1)(e). The trial court, in response to motions from both defendants, held that ORS 163.095(1)(e) is unconstitutionally vague under Article I, sections 20 and 21, of the Oregon Constitution and the Fourteenth Amendment to the United States Constitution, because the legislature has not provided a definition of "torture" in the statute.
A criminal statute violates Article I, sections 20 and 21, of the Oregon Constitution if it is so vague that it allows a judge or jury unbridled discretion to decide what conduct is prohibited in a given case. State v. Graves, 299 Or. 189, 195, 700 P.2d 244 (1985); see also State v. Blair, 287 Or. 519, 523, 601 P.2d 766 (1979). A statute need not define an offense so precisely that, in every case, a person can determine the specific conduct that will fall within that statute's reach, but a reasonable degree of certainty is required by Article 1, sections 20 and 21. State v. Graves, supra, 299 Or. at 195, 700 P.2d 244. Under the federal constitution, due process requires that a statute defining criminal conduct be sufficiently explicit to provide notice of the forbidden conduct. Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888 (1939) ("a statute which * * * forbids * * * the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law"). See also State v. Graves, supra, 299 Or. at 195, 700 P.2d 244; State v. Hodges, 254 Or. 21, 27, 457 P.2d 491 (1969); ORS 161.025(1)(c).
We assume that, in performing its lawmaking role, the legislature intends to act within constitutional bounds. See State v. Anthony, 179 Or. 282, 169 P.2d 587 (1946), cert. den. 330 U.S. 826, 67 S.Ct. 865, 91 L.Ed. 1276 (1947). In construing statutes, words of common usage should be given their plain, natural and ordinary meaning. Perez v. State Farm Mutual Ins. Co, 289 Or. 295, 299, 613 P.2d 32 (1980). The Court of Appeals acknowledged that the term, "torture," may be commonly understood; however, it found that the common definitions of that term were too variable to enable one conclusively to determine the legislative intent behind ORS 163.095(1)(e). We disagree. Although it is true that the definitions quoted by the Court of Appeals' majority vary, they all contain sufficiently common elements so that, even absent a statutory definition or definitive legislative history, one can conclude that the legislature's purpose in enacting ORS 163.095(1)(e) was to elevate the punishment for murder when the perpetrator also separately
Not every infliction of intense physical pain, even through an intentional act known by the actor to be intensely painful, qualifies as "torture." The act must be intentional, of course, but the word "torture" itself connotes that the infliction of pain is one reason for the defendant's intentional act. To utilize the statute, the state must prove that the perpetrator had this objective apart from responsibility for the death of the victim. But the statute does not further require that the pain also be inflicted for one of several enumerated purposes, such as revenge, coercion or sadistic pleasure. Compare, e.g., State v. Brock, 101 Ariz. 168, 171, 416 P.2d 601 (1966); People v. Tubby, 34 Cal.2d 72, 76-77, 207 P.2d 51 (1949). Motive rarely is made an element of a crime, and we will not impute to the legislature an intent to incorporate any specific motive, beyond the infliction of pain itself, as an element of torture.
We hold that the term "torture" in ORS 163.095(1)(e), as we have construed it in this opinion, is not so vague as to offend Article 1, section 20, of the Oregon Constitution, by creating a serious danger of unequal application of that statute. Similarly, we hold that the statute does not offend Article 1, section 21. A judge and jury are not granted unbridled discretion with respect to the application of the term. Finally, because the term "torture," as we have construed it, has a settled definition, it provides, with a reasonable degree of certainty, fair notice of what conduct is prohibited. Therefore, the enhancement of punishment for murder by torture is not so vague that it offends the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
The decision of the Court of Appeals is reversed; the decision of the trial court is reversed. The cases are remanded to the trial court with instructions to reinstate the indictments and for further proceedings.
Article 1, section 21, of the Oregon Constitution, provides, in pertinent part:
The Fourteenth Amendment to the United States Constitution provides, in pertinent part:
As already indicated, we find the same methodology satisfactory in establishing a constitutionally permissible interpretation of the word "torture" in ORS 163.095(1)(e).