In re Von Klein

135 P. 870 | Or. | 1913

Opinion by

Mr. Chief Justice McBride.

Section 1701, L. O. L., is as follows: “If a defendant indicted for a crime, whose trial has not been postponed upon Ms application or by Ms consent, be not brought to trial at the next term of court in which the indictment is triable, after it is found, the court must order the indictment to be dismissed, unless good cause to the contrary be shown.” Section 1606 provides that an appeal may be taken from an order refusing to dismiss the indictment for the causes specified in Section 1701. Section 613, L. O. L., provides inter alia: “The writ (of mandamus) shall not be issued in any case where there is a plain, speedy, and adequate remedy in the ordinary course of the law.” Having a remedy by appeal the petitioner cannot avail himself of the extraordinary remedy by mandamus: 3 Blackstone, 266, note 11; Durham v. Monumental S. M. Co., 9 Or. 41; Ex parte Williamson, 8 Ark. 424; State ex rel. Harris v. District Court, 27 Mont. 280 (70 Pac. 981); State ex rel. Kennessy v. District Court, 26 Mont. 274 (67 Pac. 625); Commonwealth ex rel. Hoopes v. Thomas, 163 Pa. 446 (30 Atl. 206); State ex rel. City of Milwaukee v. Ludwig, 106 Wis. 226 (82 N. W. 158). The case of Ex parte Ford, 160 Cal. 334 (116 Pac. 757, Ann. Cas. 1912D, 1267, 35 L. R. A. (N. S.) 882), and the case of Ford v. Superior Court, 17 Cal. App. 1 (118 Pac. 96), would seem to intimate a view contrary to the authorities above cited; but, upon examination of the California code, it appears that there is no provision for an appeal from an order refusing to dismiss an indictment. In his concurring opinion in Strong v. Grant, 99 Cal. 100 (33 Pac. 733), Mr. Chief Justice Beattv clearly depicts the intolerable situation of a defendant under the California statute, which permits an appeal only from a final judgment of conviction. In this state the statute gives the right to have the indictment dismissed, and provides a remedy for a violation of that right, namely, by appeal. A specific remedy being provided, mandamus will not lie.

It is contended upon the argument that the remedy by appeal would not be adequate, for the reason that upon appeal the decision of the lower court could be reversed only for an abuse of discretion; but the argument is fallacious. Either the defendant had an absolute right to a dismissal upon the facts presented, or the court had an absolute right to refuse. If it was a matter of discretion, and the court exercised that discretion, we have no right to interfere in any event. If, on the other hand, the attempted showing made by the state was not up to the standard required by law, the court was without jurisdiction to try the case, and erred in refusing to dismiss it. It is clear that every question which petitioner seeks to raise by this proceeding could have been raised upon an appeal from the motion to dismiss.

The demurrer will be sustained and the writ quashed. Writ Quashed.

Mr. Justice Moore, Mr. Justice Burnett and Mr. Justice Ramsey concur.