14 Or. 426 | Or. | 1887
The respondent, as district attorney for the sixth judicial district of the state, including within it the county of Umatilla, commenced an action in the circuit court of said county against the appellants, upon an undertaking alleged to have been executed by them as sureties for John P. Looney, that he should appear and answer a certain indictment found against him and one Robt. Looney, by the grand jury in and for the said county of Umatilla, charging them with the crime of larceny of 240 head of sheep, and upon which they had been admitted to bail, in accordance with an order made by lion. M. L. Olmstead, the circuit judge of the said court. The said
The appellants, after having demurred to the complaint and the court had overruled it, interposed an answer, denying the failure to comply with the conditions of the undertaking, and of any default having been made by the said John P. Looney, as alleged. The issues so formed were tried by the court without a jury. Upon the trial the respondent’s counsel, in order to prove his case, offered in evidence three journal entries of the said court, of proceedings had upon said indictment. The appellants’ counsel objected to the introduction of each of them, but the court overruled the objections and admitted them in evidence, and the appellants’ counsel took exceptions to the ruling. One of the journal entries is entirely immaterial, but its admission did not prejudice the appellants, and it is unnecessary to refer to it further. The following is a copy of each of the others:
January 30th, 1886. Sixth judicial day. January term, 18S6. State of Oregon v. John P. Looney and Robert Looney. Now, on this day, this cause came on for trial, upon the indictment charging the defendants jointly with the crime of larceny of two hundred and forty head of sheep ; and the said defendants demanding separate trials, and the defendants appearing in person, as well as by Tustin & Leasure, of counsel, and the state of Oregon, by M. D. Clifford, district attorney, electing and appointing that the defendant John P. Looney should be first tried. Whereupon, said John P. Looney filed his application for a continuance ; and after argument of counsel, and the court being fully advised, it is ordered, considered and adjudged that this cause be continued for the term as to said John P. Looney, and that the same be set down for trial on the second day of the next regular term of this court.
Thereupon, it was ordered and adjudged by the court that the said undertaking be, and the same is, hereby forfeited to the state of Oregon, and that the same be collected as by law in such case made and provided.
These two entries were properly received in evidence ; they were relevant and material to the issue. The only possible objection to them would be that they did not tend to prove a breach of the consideration of the undertaking : whether they were sufficient for that purpose or not the court could not be expected to determine upon an objection to their introduction. That they did tend to show that the said John P. Looney had made default in his appearance, there can be no doubt. The only question for us to consider is as to their sufficiency for the purpose indicated. The respondent’s counsel claims that the appellants’ counsel did not raise that question ; that the objections to their admission were based upon other grounds. That, however, is too technical. I think we should consider as to their sufficiency, and if they did not establish a breach of the undertaking, send the case back.
The admission of the first journal entry was preparatory to
The appellants’ counsel claims that the said journal entries do not show that the conditions of the undertaking were broken by the said John P. Looney. That they are inartistic will not be denied; but taken together, we are of the opinion that they do show that said Looney, without excuse, failed to appear for trial. He stood indicted in the said circuit court for a felony; the tidal of his case was set for the second day of the term; on the sixth day of that term, in the language of the journal entry, “ came the state of Oregon, by its district
I think that by any fair construction of the language, it must be inferred that the said John P. Looney failed, without sufficient cause, to appear for trial upon said occasion. He certainly would not have been called for any other purpose than to be tried, and it must have been for the purpose of having him tried that the state “ came,” by the district attorney. The facts are not set out in the entry with that particularity they might have been ; nor as fully as they perhaps ought to have been ; but I think they are sufficient to show that the conditions of the undertaking had not been complied with, and that the appellants had become liable to the payment of the amount for which they became surety thereby.
The judgment appealed from should, therefore, be affirmed.