State of Oregon v. Kuhnhausen

argued Argued January 6, February rehearing reversed opinion withdrawn, former March conviction affirmed June v. KUHNHAUSEN STATE OF OREGON 266P. 2d 698 272P. 2d 225 Georgeff Edward and Bivon E. Jones, J. of Port- argued appellant. the cause and land, filed brief for Attorney, Oregon Bradshaw, L. District Winston of respondent. City, argued for the cause With him on Attorney Thornton, Robert Y. the brief were General, Apley Salem, and Walter J. and Howard J. Bland- Attorneys, Oregon City. ing, Deputy District TOOZE, J. appeals Bonnie defendant, Kuhnhausen, Lee judgment for the crime of conviction of murder

from a degree. was sentenced life im- second She in the prisonment. January defendant and Elmer 18, 1952, one

On Oregon, Dorsey arrested in Portland, were Williams beating days suspects jail in placed two in as January Tarkia died on Tarkia. one Jalmar earlier beating result of the which he as the direct contended the motive The State had received. robbery. beating was for such alleges assign- appeal four Upon defendant of error ments follows: denying the motions erred The Court “1. grounds that the indictment dismissal of Court from next term tried same there commenced, cause was whence prosecution. failure had been denying motion for erred “2. The Court appellant on the requiring be tried order original against indictment returned her Jury January Grand on 1952. granting, appel- “3. The Court erred in over objections, request

lant’s ness the State’s that the wit- Wampler permitted to erect in the court projector project room his own and screen, and to transparencies, the screen a number of colored (Ex. 33) previously 17-24 inclusive, and admitted in evidence. denying

“4. The Court erred in the motions for grounds directed verdict on the that the State had directly circulstantially failed that cipal, (a) [sic] to show or appellant prin- was involved in the case as a (b) appellant was involved in the case as accessory, (c) any robbery that there was in connection with the death, that the State had failed to show that a crime had been committed (Tr. 479); failing 296-300, and the Court erred in give Appellant’s Requested to to which No. Instruction ruling appellant duly excepted (Tr. 540), and which instruction was follows: as “ ‘You are instructed to return a verdict of Guilty” charges “Not as to all the included within ” the indictment in this case.’ disposition compelled, view of we are unnecessary under the to make of law, case, it for us to discuss the evidence introduced the trial or defendant, outline the facts of the otherwise case. It is sufficient to state that a careful review of the trial record convinces us there was substantial support verdict, evidence to well as substantial jury might from have found the evidence dispose guilty”. This of de defendant “not would assignment numbered were “4”, fendant’s of error question properly Moreover, us. we before if assignment required to consider defendant’s were our conclusion that it would be “3”, error numbered assignment Long, the is without merit. 81, 124, Or 244 P2d 1033. upon assignments

It is of error “1” numbered and particularly assignment upon “2”, and of error num- “1”, bered must base our we decision. That re- quires prior a discussion of the made record to trial of the case. jury January grand the for 24,1952,

On Clackamas county against returned indictment an Williams and jointly accusing them of the crime of murder defendant, February degree. 4, 1952, defendant, in the first On arraignment, pleaded guilty” in- “not to said her codefendant Williams, dictment. On behalf of being indictment was it con- filed, demurrer the the re- did conform to that the indictment tended (OES quirements et 132.510, ch of title OCLA 26, February seq.). the demurrer 13, 1952, date of Under sustaining the and in its order de- sustained, directed indictment murrer the trial court grand jury pur- to the be resubmitted as to Williams §§ provisions 26-827, and OC 26-826 suant to the 135.540). (OES Feb- on Thereafter, and LA 135.530 attorney ruary Clackamas for the district 14, 1952, resubmitting county order for an moved court jury grand to the defendant Kuhn- indictment February trial court 1952, the 19, on hausen, resubmitting the indictment and an order so entered grand ordering pending said action “that further Kuhnhausen, Bonnie Lee jury, defendant, that the custody without bail.” in held jury grand February returned an 1952, the 20, On jointly against defendant, Williams indictment murder the first charging the crime with them plea entered defendant degree. indictment, To this February guilty” 1952. March of “not on On separate filed her motion for a defendant provisions § pursuant 26-923, OCLA day (OES 136.060), same the court entered defendant, Kuhnhausen, Bonnie Lee order “that the Dorsey separately Elmer defendant, from be tried upon a date to be set Williams, Court.” state, the statutes of this there are four Under county regular terms of the circuit court Clackamas being period year, each term for a of three months. each year in each commences on the first term first Tuesday January and until first continues uptil April Tuesday April; term continues Tuesday July; July term, in the until the first first Tuesday and the until the October; term, in October Tuesday January following. § 93-254, in first OCLA (OES 4.150). gen- March the trial court a 31, 1952,

On entered continuing during all cases not tried eral order the following court in 1952 over to the first term of term ground, order, as stated the “that the on the Court dispose during of such have time the did not term”. first attorney try against

The district elected case first. commenced on the defendant Williams This resulting guilty April in a verdict 1952, of 20, degree. special jury panel A in the second murder purposes for of the Williams trial. was drawn again May by 4, 1952, 9, 1952, March On the circuit court, adressed to district attor- letters ney requested a trial date be set for the trial of timely applications His were and in ac- defendant. practice in cases. such with cordance court 1952, the trial entered another June On continuing general all criminal cases not order tried during the second term of court in 1952 to the over following ground term on the that the court did not dispose during time to have such cases the second term. July sup- 30, 1952,

On defendant a filed motion, ported by against affidavit, to dismiss the ease her on grounds “that the same was not tried the next term of Court from when the cause commenced, prosecution”. that there has been failure of July hearing said On was held the court being personally pres- such motion, defendant hearing represented by ent at such counsel. The appeared attorney. Testimony the district county clerk and some exhibits were admitted in support evidence to continuance of the trial of over the second term court. defendant The court motion. denied the August for trial for

The case was set 18, 1952,some plea months after defendant had entered six her guilty” “not to the indictment. the meantime, de jail, charge against being fendant remained her a nonbailable offense. August jury and before a had em-

On been try paneled case, defendant renewed her motion against the indictment a dismissal of her on the urged July grounds in her motion of 30. Her same proceeded and the trial denied, to verdict motion was duly excepted judgment. to the Defendant several rulings of the court. during January the discloses

The record only April criminal one case was tried court, terms of disposed jury. criminal cases were of Some 33 to a jury large guilty, A upon pleas and without trial. of juries. tried to On the first cases were of civil number set a number of civil May, court cases 1952,the trial May during No and June. more for trial the months of until criminal, neither civil nor trial, were set cases July, first of 1952. hearing July Upon on motion defendant’s following made for the trial court statement record: a Mr. fact, as matter of Jacobs, “Well, immediately upon the trial of record shows being completed, approxi- within the mately case Williams days thereafter, or ten a District week Attorney requested the a trial in Court set date up case. I have been set about two

the Kuhnhausen since the or three months advance first of request being year, on which means made average May prevailed that, 9th of as the at that the time and I have that independent no it, recollection of necessarily it almost be carried into would I court unless took cases next term off (Italics already previously were set” docket that ours.) record shows that the referred having for trial all civil been set were cases. court as completion that after of the It noted will be Wil- than months remained trial more two liams Nearly (or second) April term of court. two months attorney after the district had the term remained May request for a trial date. made his Oregon provides: § Const., Article justice “No shall secret, court but shall be openly purchase, administered pletely and without com- delay, every and without man shall have remedy by injury due of law for him course done person, property, reputation.” his or A defendant a criminal action is, this con guaranteed provision, speedy trial. stitutional Harris, Or 410, 200 P 415, 926; State v. Breaw, 45 Or P 586, 896. 587, very right

From the earliest times the of an ac person speedy recognized. cused to a trial has been guaranteed by In the United States it is constitutional statutory provisions. right, It is a fundamental subject judicial and one not to discretion. It extends persons guilty to all accused of crime, to the as well as to innocent. general principle

There is no that fixes the ex satisfy act time within which a trial must be had to requirement speedy “speedy”, of a trial. term or equivalent, employed provisions its in constitutional guaranteeing speedy persons, being a trial to accused meaning, permits legislative a term of indeterminate providing to definition some extent. Statutes for a discharge of accused trial is had unless within a stated require or indictment, time after an indictment or a time, information within stated are enacted for enforcing purpose right, the constitutional they legislative constitute construction or definition provision and of the constitutional must be construed fairly accomplishment of that end. 22 CJS (3). § Law, 467 Criminal (ORS 134.120) its 26-2002, OCLA has for

Section right purpose the enforcement of the of an accused sole guaranteed by speedy § person trial as Art adopted by supra. Oregon Const., The statute was legislature not has been of this state in 1864 and any respect since that time. or altered amended provides: It crime, for a whose indicted “If a defendant application upon his postponed or

has not been brought to trial at the next be consent, his the indictment is triable, the court which term of it after ment to the court must order the found, indict- good dismissed, cause the con- unless trary (Italics ours.) be shown.” interesting foregoing It is to note that the statute by adopted is almost identical in terms with the one Oregon legislature. territorial 29 of ch Section Oregon Territory, XXXVI, Statutes of 1854. Our con- adopted September by and, stitution 18,1857, was Act Congress, Oregon of admitted to the Union as a February 14, state on 1859. Section 7 of XVTII, Art. original provided: of our constitution, territory Oregon “All laws in in force the when this constitution takes effect, and consistent shall in therewith, repealed.” continue until force altered or attempt legislate generally No was made to for the legislative until state the 1864, session of áwhen com- plete adopted. § new code of laws was 26-2002,OCLA, supra, part was a of that code. legislative

This statute constitutes the construc provision (§ tion and definition of the constitutional Oregon supra), Const., and, Art all intents and having adopted purposes, contemporaneously been adoption of the with constitution, must be it read part guar and considered a into constitutional anty. Swain, v. 207, 214, Or P2d 745, 32 93 ALR 921. P2d mandatory. command of the statute is If a brought trial at the be

defendant next term of in indictment is triable, which the after court it is contrary good being no cause to the found, shown, order the indictment to court must be it dismissed; has in matter. view the no discretion constitu provision duty and the terms of the statute, the tional of the court to in such dismiss circumstances becomes, duty. a constitutional effect, Where defendant’s right ato dismissal becomes fixed, the court no has authority jurisdiction proceed or further with Any prosecution. action the court thereafter prosecution on that furtherance indictment would nullity. be a that the constitutional

We have held and statu necessarily require tory provisions do not trial person of court accused within term supra. Breaw, returned. State But indictment is during following held term, the trial must be unless the. contrary good or shown, unless the cause to the application postponed or accused consent. his mandatory provisions of the stat Under should have been tried at defendant the latest ute, the during April term of the court. did The defendant the apply of the term for a continuance case over that not July neither did she consent a con to term; and into tinuance-beyond April term. When “consent” of trial is an claimed, a continuance for to a defendant distinguished implied express from an con consent, Chadwick, 150 Or shown. State v. must be sent, said: 47 P2d we 645, 650, duty imposes on a defendant, no “The law calling charged his case for trial crime, with any particular insisting set for trial at that it be or duty upon the state. devolves When That time. charge a indictment to defendant sees fit state equally it is crime, of a the commission with prosecutor ar- duty raigned to defendant is see of the speedily brought plea and to enters a charge him in the to with offense as it is trial, Rosenberg, (142 71 389 P. P. place: Or. v. State first (154 P. 155 624); Or. 325 Clark, In re think that means an con- 187). express We consent sent on the the case be con- of defendant part 254 P Barrett, tinued: State v. Or supra [121 198].”

It remains for us to what constitutes “good discuss cause” for a trial beyond of a criminal continuance the court term next the term which the following indictment is returned.

As before noted, we have only cause assigned the trial court for continuing defendant’s trial into the term of July court was that he had civil cases for trial, set order to try defendant before it 18, would have to August been necessary take one or more of the civil off cases the trial docket. this court not

Ordinarily, will review find circuit court ings as whether good cause has or not shown, been has but where the record shows the cause that existed why the case should be continued, court then this will consider whether the reason found by the continuance court is sufficient base order dismissal of denying the in Chadwick, State v. dictment. v. supra; State Barrett, v. Bateham, State P supra; 524, 186 Or 5. In al., et Goldstein 221, 224, Or 224 P 1087, this it court had before for consideration a general order court all continuing tried of until the next term of disposed regular court, “be cause the lack of time part the court o.f * * hear and the same dispose toAs said: order, we “In the absence any showing to the contrary, none,

and there is we assume that record, made a court of a by jurisdiction, is general verity; and such has been held to be entry sufficient; State v.

Bertsehinger, (177 63).” (Italics Pac. Or. ours.)

In the instant case the reason for the continuance as for the denial of defendant’s motion to as well dis- clearly appears indictment, stated, miss the above by from the record made the court at its instance own upon hearing of motion to dismiss. assigned by the

Did the reason court for its action “good cause” the continuance? constitute By find not. virtue of the con

We that it did guaranteeing speedy provision a trial to an stitutional statutory person, definition and con and the accused guaranty, constitutional criminal of such struction preference the trial of civil have a over cases. trials a number of civil cases has been set for The fact that promptly failure to no excuse for the set trial is valid necessary case that at if issue, for trial a criminal mandatory provisions comply of the statute. with speedy a trial in this afford the defendant In order to protect preserve and her constitu and to thus case, duty necessary, right, court, if it tional off the of the civil cases docket. one or more to take provision Although itself makes constitutional civil and criminal cases as to no between distinction speedy right trial, nevertheless, virtue (ORS 134.120), § provisions of OCLA 26-2002, supra, reason exists, thereof, clear distinction preference have the over case does criminal of a the trial necessary it insofar as case, a civil provisions of the statute. Our code comply with (ORS §to 26-2002, similar OCLA no statute contains general. supra, 134.120), as to civil of what this court said in unmindful areWe 224P There the court 627. 682, 684, Lee, Or general order for the con- a for consideration had term of court all into the next because of cases tinuance part on the of the court to hear dis- of lack time of pose As we said: order, of them. to this ((The by this order is overcome of force give anything The law does not criminal record. of (Italics ‘right way’.” ours.) of

cases Oregon quoting §1, 10, Const., after Art Then, supra, stated: the court right guaranteed our fundamental “The law hearing ‘speedy’ applies alike to civil and

criminal causes.” unequivocal acknowledge the fact state- We give criminal does not cases the ment that “The law way’ ‘right and the further statement that “the ”, of guaranteed our for a right fundamental law hearing applies ‘speedy’ alike to civil and criminal might and create some be misunderstood well causes”, does nor not, It true that the constitution is confusion. expressly provide any state, this statute of does precedence cases shall over of criminal have the trial cases, it is manifest the effect civil but trial of (ORS 134.120), provisions of §26-2002, OCLA of the preference. give supra, There sound reason such is to usually preference. have to cases do with Civil for this property, money, or whereas crimi- problems status, of liberty, personal freedom, and nal cases involve Magna Since Charta the life of individual. often, liberty, protection and freedom the indi- life, primary concern ever been has vidual for and the basis substance English-speaking world, incorporated Rights the federal and into Bill of It is obvious that if the constitutions. state several precedence not take over the did trial of criminal trial civil cases, the fundamental right an accused to a person speedy might, perhaps would, many instances be defeated. connection it also is highly, significant that, there no statute

although or indi- directly rectly gives hearings criminal appeals preference in civil in hearings over cases this court, nevertheless, in order to further enforce the constitutional of right an accused to a person trial, speedy we have, by ever unwritten rule, recognized such right of prefer- ence.

In we we said, what have do not wish be to that in understood as case holding every the constitu of an to a tional accused right person trial speedy will trial in be the next by setting satisfied term of court the term in which the following indictment was re turned. from Wholly apart the statute, the consti an tutional of accused a right person to trial speedy trial a conducted contemplates according fixed and rules, proceedings law, at free regulations, from vexatious, delays. capricious, oppressive The right in delays, and, with the final consistent analysis, trial been speedy whether such has afforded must in the of the light be determined circumstances of each of case as a matter judicial discretion. In particular cases the statute not provisions such being the action of the court will dis question, record unless the discloses an of clearly turbed abuse In cases nonbailable involving discretion. offenses the defendant where himself re and, particularly, trial, without delays good cause should early quests v. Clark, 86 Or 464, 470, countenanced. not be 715, 944; Law, 467(b), (3); Criminal § CJS 168 P Law, 135. Criminal § Jur 14 Am general order It has been suggested of matters, all continuing pending including court criminal over to the term cases, following trial of of lack of time court court, part because the same, absolute imports hear dispose record, from the unless is bind- expunged verity, and, German, 163 Or State v. 642, 645, us. ing P2d for the said: court, Mr. Justice speaking Bean, * *

“* filed An affidavit was on behalf the court might show that attempting defendant the effect of the tried the to avoid have No of continuance above several orders mentioned. the valid- against has ever been made direct attack do not think and we orders, these ity of col- could case be attacked continuing any order The order above quoted, appearing laterally. court and at journal, signed approved open of each the end term. judge presiding an order appear- “It is well-settled rule the court is taken journal in the ing an absolute State v. verity. Moltzner, court as ** 347; (Italics (2d) ours.) 13 P. Or. Moltzner, supra, v. court, at the In State page Mr. Justice stated: through speaking Kelly, counsel de- for displayed by “Affidavits were the case to the of effect argument at the fendant made at continuance the close of orders of that the to entered aforesaid, pursuant were term, each many years had prevailed practice affiants that such order had informed no judge im- to entirely This is made. had been insufficient con- court. In order record the peach of made by must be impeachment such trolling, court itself.

i i ^[*] # & ^{[*] [*]} on the of lack time statement, part “The unfinished of the a continuance court required in business, is itself good cause for not dismissing pending indictments: v. State 93 Or. Bertschinger, 404 (177 63); Lee, P. State v. 110 Or. 682, 687, (224 P. 627); State v Bateham, 94 Or. 524 P. (186 5); State v. Goldstein et al., P. (224 Or. 1087). If such statement, appearing as it does in the journal court, is or false, was inserted with out authority, application correct the entry should'have been made to the circuit court. absence of any order we expunging it, are bound *Until it. impeached by court, it im itself, ports verity’. State Gilbert, v. Or supra 596, 112 [55 P Ex 436]; Jerman, 57 Or. P. parte (112 Ann. 1913A, 149), Cas. there cited; eases Ollschlager’s Estate, 50 Or. 55 P. El (89 1049); liott’s Appellate Procedure, (Italics 186.” ours.) §

When read in the of our light prior decisions, in State v. German Moltzner, holdings with one do not announce exception, any new law have state. We held consistently that these orders “in the absence to the any showing import verity contrary”. The addition of the word be “absolute” in State v. German adds noth fore the word “verity” State v. Moltzner to the rule. statement ing that “in the of any absence order we expunging it, it” is not the of this are bound law state and is overruled. If the record in the expressly proceeding certainly order, itself this court impeaches it. bound by State v. German that “no direct

The statement ever made validity against attack has been these other than the manifestly something orders” refers It verity attached thereto. elementary rule subject should not be to collateral attack. orders these Furthermore, concluding paragraph State German shows in that this court actu- opinion ally passed upon and examined entire record in finding “good and ultimate case, based its upon cause” the continuance such record. The said: court and in “The facts the record these show

good proceeding cause existed for not with these judgment and the of the indictments, circuit court is affirmed.” general to these it is orders,

As obvious that they par have must be deemed to been entered in each thereby, part a ticular case affected as of the record in purposes though sepa all and as case, such intents a entry actually in rate had been made the case. Other any way they ques not affect in in wise, could the case tion. in a criminal case

The record commences with every return of an indictment and includes each and step proceedings up in the thereafter taken to and in judgment. cluding and actual trial An for con order integral important part tinuance is such proceedings, directly affecting as state, well as part a accused; it is the “record”. require argument

It would seem to no proposition that a motion to establish the dismiss an in prosecute for failure to is a direct dictment attack challenge including record, to the entire an order of hearing upon a A such motion, continuance. any, in offered connection if to therewith,

evidence any respect gether entered order with thereto, with part record in the case. also become When upon to examine that record, are called we are we entirety, piece appeal, on an we view it its disputes If record as whole the facts meal. continuance, the order for order no stated longer imports verity binding and has no effect. State supra; supra; Chadwick, State v. Lee, v. State Gold supra. al., stein et

In the instant and case, as before the trial noted, testimony upon court itself and offered received the hearing support of the motion to dismiss in of its general order of in continuance; effect, trial court impeached question. itself the order in

Upon the record before the trial in court in mandatory duty case, stant it its and constitutional against upon indictment dismiss the the defendant her motion for such dismissal. all When is said and statutory requirement respecting done, time an person brought salutary must to trial accused is a public, adopted in the interests of the rule well as persons. interests of accused It rule obeyed, must be disposition compelled are

The we to make of unnecessary a case renders discussion of defend assignment “2”. However, error numbered ant’s prior of our find from a decisions do review we assignment particular merit. is without question defendant has been whether The light disposition jeopardy, we must make of the appeal, before us for deter- is not on this of the case express that matter we therefore, and, mination opinion. no judgment trial court is reversed and this to dismiss the indict- directions with remanded

cause discharge defendant. ment dissenting. J.,C. LATOURETTE, majority opinion remanding the from the I dissent with directions to dismiss court the trial case My discharge defendant. reason indictment dissenting court, of the trial is that the orders continuing and June dated March 31, 1952, grounds following term on the all criminal cases to the dispose of such that the court did not have time verity during imported absolute term, subject to collateral attack. were July 30, It be remembered that on defendant will against filed a case on the motion to dismiss the her grounds in the term that “the same was not tried next commenced, of Court from when the cause and that Hearing prosecution.” there has been failure upon such evidence was motion, taken, was had August 18, the court denied the motion. Later, date of the defendant renewed her motion for trial, a dismissal, which was likewise denied.

It will be noted that record which the prevailing opinion bases its decision was sub- made entry sequent continuing The orders. continuing orders were never under direct attack. § motions to dismiss the indictment on 26- were based (134.120 OES) requires 2002, OCLA order brought to dismiss the indictment if defendant is not to trial at the next term court unless the same is good continuing continued cause. The orders were incidentally brought collaterally. into the case Moltzner, In v. 140 128, 137, State Or 13 P2d question squarely this was before the court. There the defendant moved to dismiss the on the indictments ground urged same in the was motion instant case. there said: We part statement,

“The that lack of time on the required of the court a continuance of the unfin good not business, ished missing pending in itself cause for dis Bertschinger, v. indictments: State 404, 177P. v. 110 63; Lee, 682, 687, 93 Or. Or. 504 627; P. State Bateham, 94 Or. P. 524, 186 5; State v. al., Goldstein et 111 Or. P. 1087. such, appearing If a statement, as it does journal of court, is false, or was inserted without

authority, application entry to correct the should been have made to the circuit court. In the ab any expunging sence of order it, we are bound impeached by it. ports verity.’ ‘Until the court, itself, it im supra; parte Gilbert,

State v. Ex Jerman, 57 387,402, 112 Or. P. 416, Ann. Cas. 1913A Ollschlager’s 149, and cases there cited; Estate, Appellate Or. 89 P. 1049. Elliott’s Procedure, § 186.” Weitzel, In State v. 524, 527, Or 56 P2d 1111, question again was before us for determination. We there reaffirmed the rule laid down State v. supra, saying: Moltzner, “ appearing It is a well-settled rule that an order journal

in the of the court is taken this court as * * *” verity. an absolute German, State v. 163 Or 642, 645, 98 P2d 6, a motion was made to dismiss an indictment because the brought case to trial within next term of general continuing court. There was a order all cases to the next term of court because of unfinished busi- etc. ness, We said:

“* * * An affidavit was filed on behalf of attempting might defendant to show the court have tried cases and to avoid the effect of the several orders continuance above mentioned. No against validity has ever direct attack been made orders, these and we do not think that the order continuing any collaterally. case could be attacked quoted, appearing journal, The order above in the signed approved open by pre- court siding judge at end of each term. appearing “It is well-settled rule that an order journal by in the of the court is taken this court as verity. Moltzner, Or. State v. an absolute 436; P. Gilbert, 596, 112 55 Or. 347; P. State v. 2d P. Ann. Cas. Jerman, 387, 112 Ex Parte Or. Ollschlager’s P. 55, 89 Estate, 50 Or. 149; 1913A 1111.” 56 P. 2d 153 Or. 1049; Weitzel, State v. (Italics supplied.) appears that a settled law of this state to be tbe

It imports continuing have in this case such as we order only by verity a direct be vacated and can absolute that a motion to dismiss order itself and on the attack brought was not to the case an indictment because subsequent not a direct attack on term is at the attack. but collateral the order of continuance principally upon majority opinion relies case, 47 P2d 232. This Chadwick, 645, 650, 150 Or presently does not disturb the rule shown, as will relied on. in the three hereinbefore announced any general appear from that case It does not A entered. motion was filed order continuance was not indictments because the cases were dismiss the during trial court, the next term court. The tried “* * * ruling its order recited: motion, [sic] tacit con indictments was continued said acquiescence plaintiff of both and defend sent and *# further ant There was the recital such order: appearing further that the work and “And it composing other of this court in counties duties judicial such that the court will district is try indictments at defendant on said have time present of this court.” term denying defendant’s motion to that order

Prom reversing appealed this court. In defendant dismiss the face of the order entered held that on the case we express for continuance consent of the defendant no trying and that was shown the cause for not the case next term of court was not a sufficient cause. The distinction between that case and the three cases upon by relied me is that there direct attack was denying by appeal made on the order dismissal from the same to this court.

It is therefore clear that since continuance directly, orders in this case have not been attacked collaterally, unimpeachable but are same and must given my full faith and credit. For this reason, opinion, defendant is not entitled to have her mo- tion to dismiss sustained. Ltjsk, JJ., concur in dissent. this

Warner Rehearing

On Attorney Bradshaw, Winston District L. for Clack- County, argued respondent. for amas the cause With Attorney him on the T. brief was Robert Thornton, Oregon. for the General State Georgeff, argued of Portland, Edward J. the cause appellant. him for With on the brief Rivon E. of Portland. Jones,

BRAND, J. Oregon respondent moved for a has presents rehearing. supporting In its brief state propositions certain not found our consideration granted rehearing original brief. We its orig- on the merits. In the case its have reconsidered necessary opinion found it to consider court inal assignment only of error No. the defendant’s reads as follows: denying for motions “The erred Court grounds that on the the indictment

dismissal of of and that in the next term Court not tried same the from whence there had been was commenced cause was prosecution.” a failure assignment upon court divided The decision “mandatory and con- that it was to the effect duty” “to trial court dismiss of the stitutional upon against for her motion the defendant indictment profound im- one of The case is such dismissal.” upon both sides portance much to be said with controversy. assign- consideration to direct our first

We will record of events chrono- 1. A bare error No. ment of arranged a convenient basis logically form will facts: consideration of January court, First term of Clackamas 1952.

1

County begins. against January. defend- returned Indictment 24 another. ant and arraignment, pleads upon February. Defendant,

4 guilty.” “not

— in- February. demurs to Williams Codefendant

dictment. February. and indictment sustained Demurrer 13 jury. grand resubmitted codefendant as to Attorney for an order February. moves District 14 jury grand resubmitting the indictment to the Kuhnhausen. defendant February. resubmission. orders Trial court Indictment 19 20 against defend- February. returned codefendant Williams. Kuhnhausen ant pleads “not February. Kuhnhausen Defendant 25 guilty.”

508 February. attorney resigns Defendant’s attorney appointed. new Attorney

4 March. District writes to circuit court requesting trial date for defendant Kuhnhausen and Williams. separate

14 March. Defendant files motion for trial. Motion allowed. general

31 March. Trial court enters order continu- ing during all cases term first of 1952 ground “that did not Court have time to dispose during of such cases the first term.” April. term of Second court commences. April. Trial of codefendant Williams results conviction. May. requests Attorney District that trial date be set. day 30 June. Last of second term. Court continues following all cases not criminal tried to term on ground that

the dispose the court did not have time during of such cases the second term. July. begins 1 Third term and continues until 7

October. July. Attorney requests 1 District court to set case

for trial. July. motion 30 Defendant files to dismiss on grounds “that the same was tried in the next from when the cause term Court commenced, prosecu- and that has been a failure of there tion”. July. Hearing held the motion. 30 Defendant present. personally Testimony taken and motion

denied. August. Defendant moved for 18 dismissal on same

grounds as before stated. Motion denied. begins. August. Trial Defendant 18 convicted. August. Defendant renews motion 19 to dismiss. August. imprison- Defendant sentenced to life 27 ment. appeals September. Defendant “from that 25 cer- judgment against entered her on or tain August about 1952.

509 January. The indictment filed was on There after a demurrer filed codefendant Williams was sustained, and the motion for resubmission of the indictment as to the defendant Kuhnhausen was al joint lowed and a new indictment was returned on 20 February. procedure certainly proper. It is judicial knowledge, a matter of record and and satis factorily explains days delay. about of the 4On attorney, by requested March the district letter, the case of State Williams and Kuhnhausen be set for trial. 14On March the defendant Kuhnhausen separate for a moved trial. If she had not so moved, it is obvious that she would have been tried with her place days codefendant trial took whose after the commencement of the of court, second term the one following term at which she was indicted. It was right her to make such a order motion, di separate recting properly trials was made, but that explains portion motion and order a material of the delay. day March, On 31 which was the last term in which the indictment was returned, general continuing court entered a order to the next pending term of court all cases. The reason stated order was “that the court did not have time to dispose during of such cases the first term”. A sim grounds ilar on order similar was made the court day Thirty last of the second June, term. days the commencement of the term after third grounds filed her motion to dismiss “on the defendant not tried in next that the same was term Court cause that commenced, from and there whence prosecution.” supporting A has failure affi been among matters, motion other recited, davit ensuing separate trial and the trial of order for also states that “this Williams. It Court codefendant judicially disposed approximate determined has thirty-three (33) involving [sic] other criminal cases which have arisen since the felonies indictment o.f many defendant, and that more civil above other eases judicially disposed were likewise this Court.” arguing the motion for counsel for the dismissal, de- fendant said: * # extremely

a* x realize the Court has an heavy in I that and also feel criminal docket, cases, non-separable, particular cases that are default precedence in trial have a dates. should Honor, “I ^[*****] think the Court’s in the period order also from the time shows, your present until the time indicted defendant was thirty-three judicially other crim- determined Court counting the terrific amount of civil not inal cases, thirty-three including in those Now, trials. work guilty naturally, trials in those there were cases, thirty-three Attorney the District However, cases. through carry to a con- whatever cases those fit to did see guilty plea or there was clusion, whether although, might say, arraignment, I or an was, it arraignments thirty-three cases there were those everything together else with the pleas and Attorney’s office saw fit to District business carry they although through conclusion, successful ato one term to the over from carried weren’t thirty-three of those cases.” were There next. County that since testified Deputy Santos Clerk setting year had been the court of the first in advance average months or three of two hearing motion the court on the At the dates. trial record: stated ** “* immediately shows the record being completed, case Williams

upon within days, ten there- or approximately a week after the District requested Attorney the Court set a trial date in the Kuhnhausen case. I have been set about or in up two three months advance since the first the that year which means the 9th request being made on the May that, as that average at time and I in- prevailed have no recollection of it dependent it, that would almost necessarily be carried into next term of court I took cases unless off the docket that already were previously set.

“# ^{[*] [*]} * * ^[*] My s* recollection is, Mr. Jacobs, that I didn’t set cases on I the first of June. set them on the I first of in May, was set so far advance I until that waited the first July I because, as I recall, was set for close three months advance at that time. * * * “It is the of the opinion Court that conditions of the docket having as been out brought testimony that Clerk, it would have necessary to been continue this case until the pres- ent of court before it could be term tried. For that that I that that, reason believe other among things is sufficient shown here cause. The motion will I any event, denied. think that the record the District Attorney indicates that most certainly effort to have the case timely made set. Of course, sets these cases its own the Court I judgment, and the condition the docket think as shown here out fact that it not very could well bears have to this month of Court set without tak- prior been the docket that were cases off set previously ing some two ** months. to dismiss was denied. The case The motion was called August. defendant, counsel, trial on 18 The her for trial, she and then ready was repeated stated dismiss, which was denied fur- her motion without argument. or After examination of ther evidence her motion to defendant renewed dismiss jury grounds denying court,- same as before. said: 'motion, Mr. denied, Jacobs, “The motion is for the rea- by not be

son volume business transacted trial could Court such an earlier owing previously to the fact that cases had been set set Attorney’s application prior to the District timely, impossible try it which was which made following term of her it in the Court indictment * * *” plea. and provides general Oregon in constitution terms: The justice shall secret, “No shall be but court openly purchase, and com- without administered, every delay, pletely and man shall and without injury remedy by law course of done due have him person, property, reputation.” or Con- in his Oregon, §I,Art 10. stitution of Eights (Art the Bill of I, section of The next “Eights 11) specifically in § of accused enumerates ” right prosecution: No is made to the mention criminal right, speedy insofar as it emanates That a trial. provisions depends constitution, from the imply, supra. Ar itsAs terms 10, I, Article section applies and criminal to both civil 10 section ticle I, Co., 135 Or 269, Chevrolet Jarman Hooton v. cases. Hough 318, 51 Porter, 449, v. Or 36; P 604, P 296 293 P Lee, v. Or 1083; 98 P P95 627. the mandate of to all that clear course,

It is, question The violated. not be must constitution meaning application of the and to the relates issue at our statu the relation and mandate constitutional tory thereto. law con the effect what consider

firstWe any regard to without considered mandate stitutional quote statutory provisions. approval from We with original opinion case: tt* * * Wholly apart from the statute, right person of an accused constitutional speedy contemplates a trial conducted accord- ing regulations, proceedings and at rules, to fixed capricious, oppressive law, vexatious, free from delays. right delays, and, The is consistent with analysis, speedy the final whether such trial has light in the been afforded must be determined of n particular circumstances of case as a each. * * *” judicial matter of discretion. harmony substantial with the hold- statement ing County, Court, in Johnston Circuit Multnomah 100, 103, 140 Or P2d it is said: where tt* * * Spee(iy trial is one conducted ac- cording of regulations, proceedings fixed rules, capricious, oppres- free from vexatious, law delay justice sive created ministers n * # # supra; Lee, v. To the same effect see State State v. P2d 32 P2d Swain, 207, 214, 745, 773; 147 Or 31 State 464 at P v. Clark, 944; v. 86 Or 168 Pines District 473, point 10 The need not Court, 1284, 233 Iowa NW 574. relies labored further for the defendant same rule brief. her 200 P Harris, 410, 415, 926, v. 101

In Or State court said: * * “* provision for a The constitutional loophole provide speedy not intended to trial was escape accused of the commission of one

for the same had within trial when the an offense without * * *” time. a reasonable 896, P 586, 588, 45 78 Breaw, In v. Or State giving provision as the constitutional court describes 514 right

“the of a defendant in a criminal action to a trial as soon after the information or indictment is diligence prosecution filed as can with reasonable prepare delays growing and the out of trial, for the permit procedure the established method will * * provides: *.” relevant statute “If a for a crime, defendant indicted whose postponed upon application his trial has not been brought to trial at the next or his consent, indictment is triable term of the court in which the court shall order the indict- found, it is after good cause to the con- dismissed, unless ment to be (OCLA, 26-2002.) § trary OES 134.120 is shown.” original opinion certain were moved In our we language of our and other from decisions own requirement say that the constitutional courts delay “permits justice without be administered shall added legislative we extent”, to some definition legislative construction “constitute a statutes that such *# provision *.” constitutional of the or definition (Italics ours.) said, further and “This went We then legislative def construction and constitutes statute * * *” (em provision constitutional inition ours), that the statute held phasis on this basis we part of the con and considered read into must be support v. guaranty. cited State we stitutional P2d 773. In P2d 32 supra, 147 Or Swain, only this: the statute said that case we carry into 13-1602is to purpose of section “The I, Article section guaranty embodied effect the ‘justice shall be Oregon Constitution, * * * * * delay .' without administered (224 627); v. P. State 110 Or. Lee, 279).” ( P. Putney, 110 Or. language. In repeatedly similar used have Courts P said supra, 944, 168 we 464, 86 Or Clark, v. State

515 the statute was enacted constitu- “pursuant” tional provision.

Counsel for the defendant cites State v. Putney, P Or 634, 279, as that holding the legislature may define the constitutional “to provision some ex- tent.” The court that case did not even so far. go It said that merely the statute was enacted “to carry out that constitutional guaranty.” at 645. Or v. Chadwick,

In State 150 Or 47 P2d 645, 648, said that the statute we “in was enacted order to carry out this of the provision state constitution.” Neither State v. Swain, nor other supra, cases cited supra to the go extent the statute must saying be “considered of the constitutional part guaranty.” course, Of the statute out passed carry re- quirement a speedy trial, but not neces- does sarily mean that the statute becomes an integral and binding constitution. part the na- Speaking ture of constitution, Marshall, Justice Chief with wisdom, profound said: “* * * nature, therefore, Its requires, only marked, its im- great outlines should its portant the minor objects designated, ingredi- objects ents which those be deduced from compose the objects nature of themselves. That this idea was entertained the framers of the American is not to be constitution, inferred from the only from nature of the but instrument, language. some of the found in Why limitations, else were ninth introduced? article, section 1st It their also, degree, some warranted having use term omitted to restrictive any might a fair and just interpretation. its prevent receiving we must never then, considering question, we that it is a constitution are forget M’Culloch expounding.” Maryland, 4 Wheaton L 601. (Italics ed ours.) 516 are

Constitutions not to control the adopted rights of procedures moment the but to establish broad of and fair justice for all principles play time. We hold that extreme caution should be exer in a reading cised into constitutional which provision in couched the general terms, detailed specific of a statute enacted provisions legislature by pur suant to the constitutional guaranty. ex Ricco v. Biggs,

In rel. 198 Or. 413, 430, 1055, P2d court said of the 255 estab rights lished constitution: * * “* duty seeing The of are they pro- inviolate preserved squarely upon tected the- shoulders falls of the The judiciary. performance of is one the inherent of the powers of this duty a can neither court, legislature which power nor abolish.” curtail in the case we also pending

In opinion our original said: be said, have we do not wish to “In what we - case the con- every holding

understood as an accused speedy right person stitutional trial in the setting satisfied by will be the term following court term of next * *” * returned. the indictment demonstrates clearly statement quoted consti a “definition” not question statute merely passed pursuant but was provision tutional constitutional definition of the If statute were it. would neces the statute with compliance then right, course, constitution. Of with compliance sity or application interpretation uniform legislative standing long provisions constitutional indefinite courts, consideration serious entitled to is. Ander v. Hawley them. binding upon it is though son, P 191, Or 195 P 358; Walker Polk County, Or 223 P 741. McGowan, State v. 113 Mont 591, 131 P2d 262,

the Montana court quoted from 22 language CJS, Crim- inal Law, the effect § that statutes passed purpose enforcing the constitutional con- right stitute a construction or legislative definition of the constitutional The Montana provision. court said:

“* * * We think the application of this rule is correctly in the case suggested of State v. Le Flohic, 127 Minn. 505, 172, N.W. 171, where it said: a ‘Whether is a speedy trial within the Constitution judicial is a question. The Legis- lature cannot say and does not say that a trial * * * if speedy had within the time mentioned * * *’ ’’ in the section of the statute quoted.

So as long the doctrine of separation of powers remains basic in our system, the ultimate power duty the courts to construe the constitution must rest with the courts alone. That power should not be lightly whittled away by rule any which recognizes the power legislature to authoritatively construe the constitution. It be added may that if OES 134.120 is a contemporaneous construction and definition of the constitutional provision, there would be equal reason for holding that two other and different stat utes which were also in passed 1864 must also be “considered part the constitutional guaranty.” We refer to OES 136.070 and OES 136.120.

It has been suggested that there is an exception to the general rule the case of a contemporaneous legislative construction of the constitution. OES 134.120 is substantially identical to a territorial statute which was in existence when the constitution of Oregon was adopted 1857. The present statute was enacted in Conceding, argument, the sake of the 1864. for legislature power had to bind this con court as necessarily fol struction of the it would constitution, only provision low that the constitutional legislature could “construe and define” would be at time which was force constitution was enacted. Article of the constitution statute VII adopted originally provided that “The circuit court year, county twice, least, in each in each shall be held at * * judicial purposes Orig organized *.” Art for p § It seem to 8, 238 OCLA. would follow VII, , construed and defined con if the statute of 1864 speedy provision trial, for the result stitutional . speedy brought if one that a trial is within would be year, any year, second term of under because original con and decisions of this court, constitution judicial act until terminated an affirmative tinues parte of a new term. Ex Har or the commencement Ryan, 493; 91, 110 P v. rell, 57 Or Or Deering Quivey, 26 811; 556, 560, 234 P Or requiring hold that dismissal 38 P 710. statute We good prosecute cause, at failure, without indictment, is not and after the next term of court binding legislative present definition cannot be a no in 1910 which contains as amended constitution provision number of terms which as to the whatever county. any held in shall be statutory provisions, there were twelve Under having having only Oregon terms; two six counties in remaining year. having terms a ten four; one annually. 4.110 to 4.270. ORS had three terms counties a is to be deemed hold the statute should If we concerning speedy provision part of the constitutional in some be that counties the result would trial, speedy given if a be a defendant would state year, notably tried while in within one other counties, right speedy he would denied his Multnomah, be a days trial if the tried cause were not or less, within depending on the time of the month at which the indict- ment was filed and time in at second month irony which the trial was had. The of the situation period would be found in the fact that the within which longest a be defendant could tried would be in the pressure rural counties where the of business is the and the shortest least, gested. where docket is most con- provisions operate

Constitutional do not extremely that manner. The courts are reluctant rights yet hold that constitutional have been waived, hesitancy holding had this court no a defend- rights ant failed to who assert his under the statute, right in the lower court, waived his to make such Chapin, a v. motion. State 346, Or 144 P 1187; Moss, 92 Or State v. P 347. 449, People Hartman, In 408 Ill 133, 96 NE2d 449, proceeding brought was under the Illinois Post-Con (Ill par seq). viction Act Rev Stats, 1949, ch 826, et petitioner It was contention of the that he was discharge alleged to a entitled because of an violation rights brought he his constitutional was to trial four months from the date of his within com par Ill Stats, mitment. Rev ch 748. The court said: pro- “It should here noted that this statute

viding hearing after conviction is limited to questions constitutional the denial of constitu- * * *” rights. tional opinion Supreme clearly its Court Illinois distinguished between violation of the constitu- right speedy tional to a on the trial, hand, one passed the violation of statute for the provisions, implementing purpose constitutional of the other. The court said: he the statute

“It is to observed that give 9 of the Bill of enacted to effect section Bights, securing a an accused in criminal case speedy not fix the The constitution does a trial. only implement intended to time, and the statute provisions of but a violation constitution, procedure under the statute of or statute question. a constitutional not in itself create does People 297 Ill. 130 N.E. 323.” Maniatis,

v. provision, Speaking of the constitutional the court said: * “* * requirement aof This constitutional always guar speedy antee has considered as trial been only arbitrary delays. against oppressive People People rich v. Ill. 52 N.E.2d Utterback, v. 775; Wey 323; 297 Ill. 130 N.E. Maniatis, v. * *” * People, 90. 89 Ill. question for determina hold the first

We speedy right to a the constitutional tion whether phrase, That as the defendant. used was accorded to repeated judicial received con has constitutions, question proceedings is whether struction. The capricious, oppressive “vexatious, from were free justice.” delays, ministers of created supra, 944. The determination 464, 168 P Clark, 86 Or light of all of court, in the is for the trial the issue particular in the case, in the the circumstances judicial discretion. exercise support in the our statement The authorities “Wholly apart original opinion from the here ** * speedy trial has such been whether statute light in the of the circum must be determined afforded judicial particular case a matter of each stances * *”* of this decisions view discretion. construing requirement court constitutional the speedy judicial trial and the rule of discretion on the part only the reversible for the abuse court, present any thereof, we hold the evidence fails to right abuse of discretion of constitutional on violative concerning part of the trial court. The authorities only ground reversing abuse of discretion as the judgment fully of the trial forth in court will be set meaning our consideration of the and effect of the statute 134.120. ORS

THE AND RULE OP DISCRETION ABUSE

OF DISCRETION determining Before whether we should or reverse denying affirm the order of the trial court the motion duty to must ascertain the nature dismiss, we of that court and the function of this court in review- ing provisions such orders under the of the statute 134.120. ORS

In Bateham, v. 94 186 P 524, 5, State Or this court said: * “* * ‘good The case made the state of contary’ appeals largely to

cause to the discre- prepared tion of the trial court and we are not say from the record before us that the discretion ’’ was abused in this instance. supra, v. Breaw, State 78 P 896, Or this

In court said: authority postpone “The court has a trial of day a criminal cause until another term, same term, or to another the statement of the dis- attorney (B.&C. Comp. 1379), §

trict in for an action its doing appeal, except so cannot be reviewed O’Neil, abuse of discretion: State v. 13 Or (9 284).” Pac. early O’Neil, 183, 185, case of v. 13 Or announced court, 9 P Justice Lord, refusing granting concerning of a either the or rule as follows: motion for continuance “* * * things, court From the nature of position placed in a much more favorable below connections, and is there- in all its see the case propriety fitted to decide the fore better application, the decision involving appellate unless than court; arbitrary, manifestly wrong this court discretion, an abuse sound Citing cases. reverse it.” refuse to will 897, 898, P 36 Wash Waters, In State Van applied and the court added: rule was the same * “ * * trial is court In matters which presumed, discretion, error is never with vested appear the face must available, but, to be the record.” 198, 254 P 59, al., et Or

In v. Barrett State said: court * * “* preliminary upon passing motions In questions involved, of fact are where to trial position to determine is in a better trial court appellate reason, for that court, and an fact than open questions for review are not fact such palpable there has appeal and error unless the of discretion.” abuse a clear been County, Court, Multnomah In Circuit Johnston we said: supra, P2d 100, 104, 12 140 Or the trial court’s not review will “This court finding dismissed, not be should that indictment consented to defendant that the for the reason good was or that there postponement trial, of the why not be dis the indictment should shown cause palpable there has been error is unless missed a * * *” of discretion: abuse clear Lee, State v. In P supra, Or 627, cited by tbe defendant on this tbe point, question deter mined was whether the discretion vested in court making order general continuing because of lad? of to hear time dispose the same showed an abuse of discretion. It held that there was none.

Turning now to the provisions statute, we all if cause, without that agree court, fads to bring an imprisoned defendant to trial at the next term of court after the indictment, he loses all discretion to continue the case. Such is the purport of v. Clark, supra, by cited the defendant. But here. question question Our is whether the court abused its discretion there finding was good cause shown. In our former opinion we said that the case of State v. Lee “might well be misunderstood and create some confusion.” A full examination of the original and briefs in transcript that case compels conclu sion we failed to accord to the in that opinion case effect controlling to which it was entitled. Lee, State v. supra, defendant supported his motion for dismissal affidavit which negatived him any consent any continuance. A counter affi- davit stated that criminal cases in which the indictment had been returned before the indictment of Lee, all criminal cases in which defendants were held in had been custody, given precedence. The affidavit re- cited the general orders continuing pending cases at the end of each term, stated that and was delay due to the congestion the trial docket. The counter- affidavit failed to disclose whether the congestion was due to civil or to criminal cases. Circuit Judge Bobert Tucker denied the motion. Answering the claim of congested, for

the state that the docket was counsel appeal, appellant, in his brief on said: * “* * congestion A civil trial docket always a in the Court below is condition we have with us.” State v. Lee one the affidavits referred to 5y2 elapsed had indict- months which between the regular judges

ment and trial and stated that six judges time and most of the two outside had been sitting county. in Multnomah He further listed the only days criminal set and the on which cases were days set, on which no criminal cases were and stated days many during January that there were December, February on which the case could have been tried. congestion a civil furnished The claim that cases continuing good placed for criminal no cause cases directly this court court, before the trial before record. This said: court showing “The made the defendant discloses days a number of in the terms of court were were

permitted heard.” pass no criminal general continuing court then recited the orders said: cases, and by any-

“The force of this order not overcome give thing of recoid. The law does not criminal ‘right way.’ cases the criminal causes. ^[*****] “The ‘speedy’ right guaranteed by our hearing * * *” applies alike fundamental law to civil general continuing Concerning pending orders all cases, we said:

“In at bar have seen that case we the general court continuing all order cases until made

525 succeeding try term, for lack of time in which to presumption them. The is that the continuance was properly State, ordered: Johnson v. 42 Ohio, 207; (51 462); State v. 149 Mo. 646 Mollineaux, S.W. (21 Nichols v. 364).” 741 S.E. Commonwealth, Va. The court said: parte “In the case of Ex Larkin, Nev. by Hawley, 95, the stating court, C.J., after

principle every defendant held on a criminal charge speedy is entitled to a trial which should proceeds not say: be denied him “ necessarily ‘But it does not follow that such _ regardless trials are to be public held condi- tion of affairs that exists where the court held. Ordinarily, as soon the defendant is entitled to his trial properly itas can regular reached in be and its order prosecution calendar, has prepare had a reasonable time to for the trial; but unforeseen making events are liable to occur, it absolutely necessary a court to for continue cases, even on its own motion; and whenever such events necessity do occur, and the clearly for such order is apparent, power its to so continue the case is un- doubted.’ ‘‘ To like effect, see State v. Hecht, 90 Kan. (136 251). Pac. “It Ruling is said the editors of Case Law that: “ delay necessary by ‘A made the usual ordinary procedure provided by law in criminal * * * permissible. is, course, Some unlikely events making are to occur, it abso- lutely necessary for a court to continue cases, even on motion; its own and whenever such events do necessity occur and the apparent, for such clearly order is power—at its least in most states—so to continue case is undoubted. Instances of such during are, events want of time the remainder of a term to or try merits; the ease its the engage- cases, ment of the in the trial of other judge extend the time limited beyond by law holding * * the court 26. R.C.L., *.’8 p. § “ .‘A constitutional defendant’s right speedy in trial is not contravened continuances the dis- by civil judge; by hearing cretion the presiding of cases, in criminal in the advance absence of it; another by a statute case prohibiting hearing of accused; by over the having precedence of case; want time to the by try occasioned delay of im- rendering business accumulation by of* * * byor other unavoidable circum- possible; 445, 16 446. stances.’ C.J. effect is the doctrine announced by

“To similar of in the cases State v. 93 Bertschinger, this court Pac. State v. 94 63); Bateham, 404 Or. (177 Or. (Italics Pac. (186 5.).” ours.) 524 court said: the Finally in vested the trial court by discretion law

“The order the court con- of not been abused. has civil and criminal ‘because of lack cases, all tinued of the court to hear and dis- part time on of this order has not verity same.’ The pose overthrown. been in case, facts the court’s order “Under cause,’ meaning within Sec- ‘good constitutes L.” Or. 1701, tion no contention congestion made

The state criminal cases alone. In caused was docket Tucker was not so motion, Judge naive denying seven in months circuit to assume 5% had not tried a county single Multnomah in judges court and this knew undoubtedly he Both case. civil Lee, v. has been supra, be true. State contrary Court, Circuit Mult in Johnston v. approval cited with Swain, v. It supra. and State supra, County, nomah

527 approval Moltzner, was also in v. 140 cited with State P2d 128, Weitzel, Or 153 56 347; State v. Or P2d 1111; German, State v. 163 Or 98 P2d 6. opinions In the last three eases this conrt cited supra, support general proposi Lee, v. State in good tion that lack of in time is itself for not cause dismissing the indictment. the Weitzel and Ger question man cases the court said that the “settled and foreclosed” the cases cited. The statement provision in case the Lee that the constitutional speedy hearing applies alike to civil criminal cases expressly approved supra, was Clark, Or 464 at 471. supra,

In State v. et al., Barrett 57,Or May, P 198, the indictment was returned county. Multnomah The trial at the December term. On 14 December the defendant moved for dis any post missal and affidavit stated non-consent to ponement, good and that there was no reason for the try failure to him. Another affidavit, based on the during the contents of criminal fee book showed that September, June, October and November, crim jury days inal tried, eases were and that there were jury when a was obtainable and the case could have only been tried. The counter affidavit is directed to point agreed postpone that the the defendant to the appeal recognized only ment. this court On that the question controverted issue related to the of consent. It said: * '* “* denying In the motion the court must

necessarily have found that defendant did consent postponement of the trial and the from the show ing made, the evidence was sufficient to sustain finding and to warrant such the court’s denial of * # *” the motion. original opinion inadvertently In onr we cited the Bar- holding rett case as that where the record the shows Supreme cause that for existed the continuance, Court will consider whether the reason found is sufficient. imply We did not intend that the issue was to be tried de novo court. In the Barrett case this the merely order of the trial court recited that the motion for dismissal denied. The court set forth no rea- clearly then laid sons its order and down the rule previously copied the which we verbatim to effect have questions fact involved, that when are the court position to determine issue than the in better questions appellate fact such are not court, palpable open and there for unless error review discretion. The case was has been clear abuse of upon decided that issue. supra, Bateham, 94 Or 186 P county in Multnomah on 30 indicted defendant was tried 20 December. On December 1918 and

June filed usual moved dismissal defendant continuance. of non-consent statement sworn testimony presented the defendant sworn In that case only which showed that records based county jury dur- tried within the trials were criminal During following his indictment. ing five months jury were tried because of cases no month one judges epidemic At least circuit were influenza. six during period. county Thus the sitting only tried criminal cases were that if shows record average delay, per during case months four per about five, or judge about would 1% presented that under the evidence The state month. trial dockets and civil were criminal court, rules order their set cases called, certainly exceptions. This raises entry, certain with strong were set for that some civil cases inference Angnst 20 December. The record trial between congested, apparent it if docket was made it solely and of course cases, criminal because of that civil cases and this court knew counsel, court, appeal during period. this court, On tried were showing by the recited the it, before the record with cases at so crowded with the docket was state that impossible reach the trial that it was and for issue general orders earlier. recited case "We defendant’s continuing of each made at the end cases which were month no the one when and commented term, then said: held. We trials were * * “* Qn contrary lately have de we Bertschinger, 93 in State v. Or. cided substance (177 63), unde that an accumulation of Pac. discharge prevent is sufficient cases termined supported and this doctrine defendant, of the parte Ex paragraph Begerow extended note to XI of the cannot draw a 513. We in 56 L.R.A. from fact to the defendant favorable conclusion seventy only in the criminal cases were tried during period men Court Multnomah Circuit subject. aid on that To the of the affidavit in the tioned Fabian showing policy defense, ought sworn statements combated to be state during disclosing there were times terms succeeding of the indictment when the the return * * *” ease. heard this could have court examining the court we record before held After any abuse of there was whether issue was that the syllable found. There is not none was discretion, opinion that the accumu- to indicate or record in the criminal consisted of cases undetermined lation that it did not. us only. tells sense Common supra, 128, 13 P2d Or Moltzner, In State four August indictments were on 13 1931. On 17 filed November defendant moved for immediate trial of any each or of such indictments. On 20 November the deputy attorney showing district filed an affidavit necessity completion the for the of an audit of the building accounts of and loan association, which preparation audit had been in ever since return yet completed. of the indictment, and which was not The affidavit that showed the audit would be com- pleted within two or three weeks and that counsel for requested defendant had also audit. affidavit request with a that concluded be case set for a day January. certain the month On November moved the defendant for dismissal of the four in- relying upon day dictments, the statute. the same On reciting necessity the court made an order for the said audit of the books and that audit com- would be pleted setting weeks, in about three the case for January On 30 on 4 1932. November the court finding good made an been order cause had shown; why deny- not dismissed; indictment should ing for the motion dismissal. On 21 December the motion to dismiss, defendant filed second which was day. appeal same this denied on the On court con- deputy attorney the affidavit of the district sidered concerning necessity although for an audit, had been made before the motion dismiss affidavit The court said: was filed. displayed

“Affidavits counsel de- were for argument at the case to the effect fendant orders of continuance at the close of that the made pursuant aforesaid, were entered to a term, each many years prevailed practice for which had judge had informed affiants that such order that no entirely court. insufficient to im- made. This had been peach record In order to be con- trolling, impeachment must be made such court itself.” it held that “The character of the the merits was

On supports that the audit the state’s contention case * * lack statement, *. The of time essential required part court a continuance of the good in itself cause business, unfinished * * *” applying dismissing pending indictments: foregoing distinction was made rule no between criminal cases. civil and Rosenberg, 142 P 389, 71 624, Or State v. September 1912 in indicted on 19 Clat-

defendant was Nearly year county. sop and three months he later An denied. affidavit for dismissal which was moved attorney could stated that defendant of the district any court. at Since the have tried terms been affirmatively that the court did have showed record denying try motion case, the order time to by this court. The would reversed facts dismiss was present appear a clear case of the abuse of discre- not weaken the authorities decision does tion. The previously reviewed. we have supra, 163 Or 98 P2d German, 642, 6, v. In State April 21 returned on 1937. indictments were thirteen county. Septem- On 29 in Multnomah arose The cause usual motion to dis- defendant 1939 ber filed on the motion The evidence the statute. miss under had cases which been filed 64 criminal showed September 29 April before 1939. were tried 1937 after had tried the defendants been cases so In most of continuing large orders were The usual on bail. at day term. All of the cases of each last on the made legal larceny by involved the same bailee for were resulting tried, cases was the thirteen One issues. guilty; jury disagree- a verdict of a new trial; and a continuing ment. The trial court held that the orders misrepresentation, were conclusive in the absence of irregularity. fraud or The motion to de- dismiss was Substantially arguments presented nied. all in the pending urged case and some additional ones, were upon appeal upon petition rehearing. This pending court held that lack of time to hear con- cases good continuing stituted cause and that the order verity. is an absolute All other contentions of the rejected defendant were without discussion. v. al.,

In State Goldstein et 224 P Or a motion to dismiss was made under the statute and general denied. This court referred to the order at close of the term made and said that “such entry has been held to be sufficient.” Bertschinger,

The case of 93 Or especial importance. P The 63, is indictment was Motion on June 1917. to dismiss was 13 December. stipulated evidence showed there was a con- tinuance to the middle of It also October. showed September and criminal on civil cases had been set 1, up trial the 15th of November and later in for month civil and criminal set for trial same cases were day of November. The affidavit until the 30th stated during could not be tried November that the case congestion owing of the docket. The motion to to the fact that civil cases denied. The were set dismiss was during and November while the Bert- for trial October schinger remained untried was before this court case transcript printed appeal and a in both the brief. on court said: This *

“* * that real The record shows cause congested delay the trial condition of was docket this case was set trial actually on the date.” open first v. Chadwick,

In 47 P2d Or supra, 232, the arose in county case where there were Harney two terms of court a The such only were year. delays as would a violation of seriously suggest the consti- tutional even if there had no statute. provision been The defendant indicted in November of 1931. In was January, 1934 he moved for dismissal. There con- was by sent the defendant a continuance “until ‘the ” next term’ regular court, 1933. The wit, April, case was not set for the 1933 term nor for the April October 1933 term. January, defendant moved to dismiss. The motion was denied on 7 April reason the court given by not being based, exercise discretion as to but facts, to the The law. court held that the misapprehension continuance had tacit been consent of defendant the defendant had his waived rights. court then made to the prospective ruling effect reason of future to be done in judicial work other the court not have time to counties, would try defendant the term which continued until during Oc- 1934. The case then set for trial on 1 tober, was tried. 1934 but was then On 8 October October the defendant moved for dismissal and the again took on 15 place motion denied. The October from a the defendant conviction. appealed 1.934 and had observed that the case over for gone This court full without consent. (one two terms We regular year) then said: not review the find this court will

“Ordinarily court as to such good of the circuit whether ings Barrett, shown: State or has not been cause has But the court recites 57 254 where ( 198). P. Or. 534 why

in its order the cause that existed the case should then continued, court this will consider whether the reason found the court for the con- tinuance sufficient which to base an order denying dismissal of the indictments.” express The court held as a matter of law and not required tacit consent was to authorize the continuance, given by hence the reason the court was insufficient in law. The court that the trial also held court’s order predicted which that the court “will not have time” future because of duties other counties was good judgment not cause. The was reversed and the indictments ordered dismissed. The case bears no re- given weight semblance to those in has court discretionary to orders based on courts, judgment their of the facts. supra, v. 163 German,

State Or 98 P2d 6; supra, Weitzel, v. 153 Or 56 P2d State were decided after the decision the Chadwick case. In opinion only Weitzel, v. of this court State shows did not consent to the continuance that the defendants made and that the trial court the usual order at the continuing pending end of the term eases want try court said: time to them. The “It is the contention of defendants that continuing case from one term another orders preserve jurisdiction were not sufficient part Lack of time the circuit the court. against defendants, court to hear the case good dispose of unfinished cause for business, against dismissing the indictment defend- question is settled ants. This foreclosed following Chadwick, v. 645 cases: State Or. (13 232); (47 (2d) Moltzner, 140 Or. 128 P. (224 (2d) 347); Goldstein, Or. State v. P. P. (224 627); 1087); P. 110 Or. 682 Lee, State v. (186 5); P. Bateham, 94 Or. 524 State v. State v. (177 63). Bertschinger, 404 P. And is not 93 Or. it requisite given.” any additional or different reason be quoted and The court 134.120 ORS 136.070. ORS postponement “upon last-mentioned section authorizes by affidavit of the cause shown” defend- sufficient attorney. of the The court ant or district the statement then said: intended “It is clear the statute was never jurisdiction try to a divest circuit court of

to criminal case at did subsequent term when the court prior not have time to hear such case at the reason at the end of the and term term, continued all cases until the next term.” supra, P2d Swain, 745, In State v. 147 Or 31 P2d Mr. Justice con- court, by Rossman, application provides sidered the of ORS 134.110which that: person has been held to answer for a “When against found him if an indictment

crime, is court at he held at the next term of the is prosecution to answer, to the court shall order contrary good cause be unless dismissed, shown.” then said:

The court February 17, be recalled that “It will by district court to was held answer defendant April jury, during grand the March, and that to the May circuit court the court entered and terms of the good stating that cause had been which, after orders charge against the defendant continued the shown, supply sufficed to the next term. These orders to the to required ‘good this section our laws cause’ prosecution, prevent are not and dismissal subject Moltzner, attack: State to collateral (13 (2d) 347). P.

Or. We find no merit in this contention.” point may

At this we well summarize the results investigation. of our The constitutional mandate for delay applies trial without civil criminal cases. That mandate is not violated if the case is conducted according regulations proceedings, rules, fixed capricious, oppressive delay from free vexatious, justice. created the ministers of The determina question light tion of that to made in particular of each case a matter of circumstances judicial pending discretion. case there has been right no violation of the constitutional as thus de impact the fined. Of the cases in which of OES 134.120 following support considered, has been the the state questions especi ment of fact are involved, that where question congested ally the where the relates to condi ground for tion of docket the de continuance, the open trial court not cision of the review unless palpable and there has been a clear the error is abuse v. State Breaw; Bateham; of discretion. State v. State Barrett, v. et Johnston v. Lee; al.; State Circuit v. County; Multnomah State v. all Court, Chadwick; ruling supra, supra. Moltzner, v. The in State to the attacking general con affidavits orders effect that “entirely tinuing of time are insuffi cases want may impeach record of the court” well be cient to support of the same rule. a further The construed as try pending holding cases consti lack of time sup good over the term is for continuance cause tutes v. ported Bateham; Lee; State State v. in State v. supra. all Weitzel; German; v. v. State Moltzner; State holding constitutional Lee that the man v. State The sup applies and criminal cases alike civil date supra, 86 Or at 471. none ported Clark, v. in State congestion must indicated that of these cases is it only. Regardless of the burden criminal cases be of evidentiary presumption proof, is that the con- properly Lee, ordered. v. cases tinuance was State original records in several of the cited therein. The in detail that this have reviewed show cases which we that civil had been court had before it evidence cases and in some set, criminal case was tried before the days no case tried ; there when instances that were general yet order con- courts held have controlling good tinuing constituted cases was ever held that the decision in state has cause. No of criminal to an accumulation rule is limited holdings only. v. Lee have been broad questioned any frequently or never limited cited but subsequent case. is similar to 134.120, the statute ORS

In Oklahoma P 25, 109 Cole, 736, 744, Cr and in State Okla court said: * * “ * question as to whether or not the preference by giving to civil over court'erred criminal cases need term, is one which we regulation than to state that the other discuss exclusively term is a matter of the business * * *” judge. district the control within recognize a distinction that there is between

We governing criminal cases. civil and the rules Civil may more over one or terms with be continued cases cause, only subject good to the limitations shown, out whereas criminal cases prescribed constitution, the following beyond in the term can be continued only good brought cause indictment nothing in the statute which there is However, shown. of sound exercise dis court, a trial forbids finding of and that an accumulation civil cretion,.from already (as appears case) criminal cases set in this good constitutes cause for continuance of a criminal certainly trial case. The courts are entitled to take They notice condition of their own dockets. passing upon have considered the entire record in dismiss, motions to and we too have considered the though only record, we do so if entire determine there abuse discretion. of judicial We take notice of the fact that trial courts important sitting other and have duties beside on the trying jury practice eases. The bench of counsel seek of who to overthrow orders the trial courts generally sketchy showing has been limited to days judge number of which the has sat upon the bench. We know that authorities must be previously examined; cases submitted must be de- days many under the statute; cided within concerning quasi handling administrative duties necessarily judicial business consume the time of judge every who is conscious of his duties. There are regular judges county eleven circuit in Multnomah now county, judicially and two Clackamas we know judges or more from other districts that one are fre- assigned quently judges to those counties and serving pro been from time tern have to time. The judicial manpower marshaling state in congested condition of the to reduce an effort Multnomah and other counties been has dockets policy of the Chief Justices of this court. avowed delay may the methods which the evils of These are be overcome. best many problems and difficult

There are intricate metropolitan confronting areas; the circuit courts in special corpus, in nature, civil or habeas criminal, injunction quo warranto, cases, election mandamus, involving public constitutional and suits and frequently questions must be decided before a profoundly legal We are convinced deadline. that it lay down a rule under a would be disastrous statute part providing a of the constitution, which is not judges sitting all business before of the in the all civil necessary, utterly if cease, district must order that every there is no criminal case which consent to may during following be tried the term continuance the indictment term in which was returned, county, during following the month in Multnomah in which the indictment returned. In deter- month good mining there is cause for whether continuance duty it of statute, is, course, under the of the trial desirability consider that criminal cases court to when, especially promptly tried, defendant is in custody. only one But this is of matters which arriving must consider at sound the court con- particular all the circumstances clusion under that the record in this case case. We hold does not showing supports the order which overcome finding the trial court. There was no abuse of discretion. any clear has not laid down and con-

This court upon which this rule on the issue court divided sistent original diversity of this case. The in our decision opinion of some that the mo- arose from the view that it was direct, others, was a to dismiss tion general continuing order attack on the a collateral try them. of time to cases for want supra, continuing Lee, order was v. In State verity verity said “the has not but it was accorded been overthrown.” P 449, 460, Moss, Or

In State denying judge to dis- motion court said personal knowledge miss: “As he had of all of the proceedings, ruling we think his is entitled to some weight.” supra, general

In continuing Clark, State v. order quote: to the next term was made. We *“ * * argued by It is defendants’ counsel that no was cause in fact shown. The order contrary court, however, is to the and the recital signed by judge made there cannot be con- exceptions troverted of a absence bill of relating to the matter:” 86 Or at 473. employed language The Would indicate that the de- might be cision reviewed as to abuse of discretion exceptions. had been a there bill of if supra, In v. al., State Goldstein et 111 221, Or 224 all civil 1087, cases, P and criminal, were continued over the term. This court said: any showing “In the absence to the con

trary, made none, and there is we assume that this record, general jurisdiction, verity; a court of ais entry and such has been held to be sufficient: State (177 Bertschinger, 63).” 93 404 v. Or. Pac. supra, Swain,

In this court, State Justice general continuing held that a order cases for Rossman, good of time want constituted cause and that such subject orders are not to collateral 'attack. supra, al,

In v. Barrett et P Or holding 198, the decision rested alone abuse of there was no discretion. was no dis There concerning cussion direct or collateral attack. Gilbert, 596, 112 436, In P we held that State v. Or verity judgment imports impeached roll and until question But in conclusive. that case the was what actually why the trial court had done—not it had done judgment it. The roll failed to show under which of two indictments the defendant had been tried. only source of information

record as to what the trial court had done, and until the record showed helpless proceed. that fact, this court was In the pending question case, however, the is not whether continuing the court made an order all cases. The question findings whether on which the rule was import verity. made also conclusive The same dis- concerning tinction which we noted have the Gilbert concerning Ollschlager’s case must also be noted pending opinion Estate, 50 Or 89 P cited in the heretofore filed. supra, Moltzner, State v. this court said: “ * * * appearing If such a statement, as it journal

does in the of the court, is false, or was authority, application inserted without to correct entry the should have been made to circuit the any court. we are bound expunging the absence of order it, by impeached by it. ‘Until the court, ’ ** *” imports verity. it itself, 140 Or at 137. original The records on file in this case show that the contention of the defendant Moltzner was that no continuing order cases had ever been made, and it was that contention which elicited from this court the impeached statement that record, the until an order “expunging” import verity. it, would judicial

It clear that if a record recites that an order was made, which in fact never was made, proper procedure expunge the would be to the record. again question necessary But here the is whether it is expunge to the record when the order under attack actually complaint was made and the is that the rea given making sons it were insufficient. The lan-

guage unfortunately of the Moltzner case no dis makes tinction between the situations. It two occurs to us that impossible it have would been for the trial court to expunge pending the record in the case because the truly shows the order which was made. record fact parte Ex Jerman, The Moltzner case cites 387, 57 Or point 112 P but this court to 416, failed out that the portion upon relied was found in a dissent. haveWe proceeding expunge a never heard of an order fact have made, which had in been nor we known of expunge given by proceeding to a reasons court in an order was in fact made. think which We upon was relied v. Moltzner which the dis senting opinion herein was sound law. order con verity. import tinuing It did constituted sufficient good post for the evidence that there was cause order expressly poning held that the con all cases. We good tinuing It however, constituted cause. is, order proceeding that we intimated that unfortunate only “expunge” means the order was finding by the trial could court correctness be tested. Chapin, P Or

In State expressly held that under the code “if the the court upon proper application, not continued or cause was good it was incumbent shown, therefor cause unless request to make the court for defendant granting an order or refus- and obtain such dismissal * *” * ing us It be unusual for would same. pend- procedure say followed now to employed ing be- to test order not be case could attack, collateral when we had a it constituted cause rights Chapin the defendant’s case in the held to follow the iden- he had failed because were waived procedure. tical Judgments

The Bestatement of clarifies hazy judicial atmosphere concerning somewhat the dis tinction quote: between direct collateral attacks. We taking proceedings “The in in the action judgment judgment

which a is rendered to have the by appropriate vacated or proceedings or reversed modified appel- or either court in an upon judgment. late court is a direct attack * * # judgment ways a “Where is attacked in other by proceedings original'

than in the action have by pro- it vacated or or reversed modified or ceeding equity prevent its enforcement, the * * * ” attack is a‘collateral attack.’ Bestate- Judgments, Law, 11,§ ment of a. Comment * * * “ judgment A direct attack on a is an attempt pro- to avoid or correct it in some manner proceeding in a law, vided instituted for that very purpose, in the same action and in the same and the fact that other court; incidental relief is * * *” Judg- asked is immaterial. also 49 CJS, p §408, 805. ments, clear distinction Under drawn the authors authority Bestatement, of the under of the case, Chapin we think the motion to dismiss filed in action in which was which the order was proper raising method of entered constituted question. hold otherwise To would reverse many previously cited which the issue procedure It is raised in manner. also com- jurisdictions. employed monly in other original opinion, in.our As stated the motion to a direct attack dismiss constituted the correct- findings the trial court. ness When occasionally referred to collateral court has attack as denying an additional reason for motions to dismiss type of think has no case, in this we it intended more question say treat than to that we would not the of integra good cause for continuance as res in this court finding unweighted by the but court, of the trial would only deciding whether in the the issue, consider court construing thus abused its discretion. the had occasionally words we harmonize the numerous used, upon have the rule con- decisions which been based cerning discretion, of with the few cases which abuse only court has intimated that the direct the attack expunge. be a motion to would possible only basis for reversal of de- the be to of trial court would hold that the cision the during April term of one or more noncriminal the of Kuhnhausen case, the trial matters, before pure question law, to a violation amounted, as no matter when the noncriminal cases 134.120, of OKS urgent they important were and set or how or were regardless docket. The statute the condition any imposes rule. read such no strict We cannot such provision refuse the law and the invitation into we disrupt lay a court-made rule would down county. especially judicial Multnomah If business, necessity apply it announced, a rule would such were in all counties. necessary conclusion that since

drawWe appraisal was based its of the trial court decision concerning docket, of the condition of the facts by any not tainted It is must stand. the decision of discretion. abuse argued that:

It is felony prisoner must “In trials for all by any step present is taken personally whenever affirmatively and this must case, the court his right appear all the record. This extends to steps finding in the cause from taken up including rendering to and indictment the verdict.” proposition is followed

This conclusion that affirmatively record does not since the show present general in was court when defendant order day April on the last of the term, was made it follows void. order is have examined We the few by the cases cited defendant can find no case, any not, whether cited or such rule has been general continuing applied pending to orders all try during of lack of time to them because the term just expired. Examination our statutes will dis- personal presence close that the of a a defendant in felony expressly required (ORS arraignment is at case 135.110); purpose putting for the if bail defendant (ORS requires 135.190); pleading guilty it and on (ORS 135.840). provides The statute that “If may misdemeanor, indictment is for a the trial be had appears by in the absence of if he the defendant coun- felony, appear per- if a but it is for he shall sel; clearly only son.” 136.040. This section ORS refers personal appearance to at the “trial.” There is no statutory requirement personal presence a at hear- ing (ORS postponement 135.610); on on demurrer after (ORS 136.070); at or the case is issue on motion to set (ORS 135.510). aside an indictment The im- clear plication expressly provided is that the statute has personal appearance for the defendant’s whenever presence necessary. Except such deemed other- right present only provided, applies wise to be proceedings require- all trial, at the and even this slightly ment been our has eroded decisions. The general continuing part order all cases nowas of the trial.

In a Abrams, case, Or murder this State court said: objection

“The is, below, next court April during made order his absence 19,1883, specified setting day. trial for a future But begin appointment day of a the no the trial

part trial, of the and was not matter he have to be heard, which he had could insisted even if objection present. clearly been un- tenable.” al., 124 v. Moore et Or 262 P Justice referred the statute

court, Rossman, requires personal presence 136.040which ORS felony at a trial. We reviewed the defendant said: authorities and law, the common undertakes statute, like “This felony charged defendant with

to assure a in his absence. But cannot conducted his trial preliminary part no formal matters constitute legal though and are therefore even * *” * present: was not defendant Logan Savan, 423, 594; v. 148 Or 36 P2d also State See Kelly State, v. 3 443; Tenn 173 SW 75, 131 State, v. (Tex Cr) (Miss) Harris v. State 518; M & Smedes State, 42, 653; 134 Ala 32 So v. 813; Milton 28 SW2d App Ferguson, 12 P2d People 158; 124 221, Cal v. Rigsby 212 172; P2d State, 180, 90 Okla Cr v. Wilson 1016. P2d State, Cr Okla v. supra, Moltzner, this court commented

In State judge in that no had upon to the effect affidavits made, had an order been that such affiants formed general This referring orders continuance. the to was made such order that no at least indicate would yet presence in the of the defendant, court said, the entirely impeach to “This is insufficient the record -X- # ^[*] y? supra, right German,

In the State v. of the de hearing proposed general fendant to notice and on the continuing forcefully presented order cases was rejected the brief of the defendant. We the contention petition rehearing A without discussion. com plained of failure of this the court to the consider point. petition. We denied the The rule of State v. supra, supported by Moore, reason as well as authority. appear We think it would a little ridiculous require pend all to defendants whose cases are ing day and undecided on the a last term should personally brought judge be into court to hear the try pending is no announce there time to day term at a which ends on the the order is made. right challenge The time at which defendant has a propriety continuing the order over the term at the time when motion to dismiss is heard. supra, Flohic, v. Le Minn 505, 150 phrase “good contrary” NW cause to upon hearing refer to was held to the cause shown of the motion to dismiss the indictment. The same approved Kloempken, rule was in State v. 145 Minn right 176 NW 642. The defendant lost no challenge general continuing order cases. It was to him motion to reserved his dismiss. There question concerning right challenge can be no general finding good cause, means of a hardly argued motion to dismiss. It could expressly appeal statute would an from authorize refusing to dismiss an order indictment unless presented by issue the motion to dismiss could be hearing expressly litigated at thereof. 138.040 OES 548 appeal an

authorizes to this court “an from re- order fusing provided to dismiss the indictment, as in OES * * 134.120 See also 23 Law, Criminal CJS, p § b, 307. question argued which

One has not been party requires just quoted comment. have either We portion concerning the of the material OES 138.040 right appeal refusing an from order dismiss indictment. Under this statute orders in the made pending case on defendant’s to dismiss on motions July August appealable. were final and The actually appeal only this notice of filed in case against judgment (Kuhnhausen) from “the certain her judgment August about of con 22, 1952”, or viction. supra, Clark, this court said: v.

In State * “* * prosecute appeals neglect from continuing both in November, orders made regular court, next term of the to the cases practice renewal be commended. The not to taking motions, denial, their and the 11, 1917, June necessarily appeals orders con- from latter they finally until are determined tinued reg- thereby carrying over the causes two court, delays usu- As all such the trial court. terms of ular advantage in a ally of a defendant conduce to procedure not to be encour- such action, criminal aged ap- approved unless not and will hereafter original seasonably denial peals taken are from ours.) (Italics trial.” motion an immediate 870; 300, 135 P Klein, 67 Or also In re Von See 22 P2d 159, 164, 896. Grace, Or De appeals Oregon following cases the In the from final taken, were law established denying the from orders judgment conviction, but

549 motion for dismissal of the indictment under OES Breaw, v. 586, 134.120: State 45 78 P 896; Or State Rosenberg, v. 71 Or 142 P v. 389, State 624; Hellala, 71 142 P 391, 624; Clark, Or v. 86 464, State Or 168 P Stilwell, State v. 100 P 944; 637, Or 198 State 559; v. 110 224 P Lee, Or. v. 682, 627; Johnston Circuit Court, County, 140 12 100, Multnomah Or P2d 1027; State v. Moltzner, 128, 140 Or 13 P2d v. 347; Weitzel, State Or P2d 524, 1111; 153 56 v. 163 German, State Or 642, 98 P2d 6. impressed by

'While we are the soundness of the party appeal that a from view should first order denying his motion dismiss and should not be al- put expense lowed to the state to on gambles merits while he on the outcome, we have not ruling supra, being invoked the Clark, State v. as solely decisive in this case because there have been a permitted in which few cases this court has a de- present appeal fendant to the issue on his from the judgment of conviction. brings assign us to

This a consideration of the alleged error on ments at the trial merits. As signment 2 of error No. reads as follows: denying “The erred in for Court motion requiring appellant orig- be

order tried on the against inal indictment her returned the Grand January Jury 24, on 1952.” original opinion assignment we In our said that this merit. On further consideration we is without adhere parte Shing, Jung 74 372, that view. Ex Or 145 P Thompson 637; Reinhart, v. 38 P 822; Or State 202 F v. States, Strewl, States 401; v. United United NJSuper 474; Janiec, v. 99 F2d A2d Lastinger App 98; State, 84 Ga 67 SE2d 411.

Assignment of error No. 3 follows: granting, appellant’s

“The Court erred in over objections, request the State’s the witness Wampler permitted to erect the court room projector project and screen, his own and to transparencies, (Ex. a number colored the screen previously 33) inclusive, and 17-24 admitted ’’ evidence. “pictures the defendant admitted that Counsel might be over there relevant” and “ma- scene objected upon ground the familiar He terial.” gruesome. transparencies would be The author- Long, in are reviewed Or ities authority of those On the cases we hold 1033. P2d assignment No. 3 of error is without merit. any assignment asserts the absence of The last guilt objects and to the evidence of refusal substantial grant original In a directed verdict. our to of the court opinion “a careful review of the trial said that we there substantial us that was evidence convinces record * * support We adhere to that the verdict conclusion. majority opinion in this case is with-

The former judgment of is affirmed. conviction and drawn concurring. specially C.J., LATOURETTE, dissenting my former reasons stated For opinion result. in the I concur dissenting. J.,

TOOZE, majority opinion in so do- and, from the I dissent original said in our ing, what was to reaffirm wish opinion I down, handed was opinion. When applicable firmly and the constitution convinced they meant, precisely said what we then meant statutes meaning. they judgment, have the same my still and, nothing present majority opin- I find whatever persuades contrary. ion that tome believe to rights priceless constitutional of an individual are heritage; they upon are fundamental. I like look permanent unchangeable. They them should thing today something entirely one not be different tomorrow. original opinion hasty

Our was not result of and careless consideration. Its conclusions were de- liberately only arrived at and after stated, but careful given attention had been thereto all members of preparation, court. in the course fact, of its it was rewritten several times with to accord valuable suggestions by, incorporate made the views and represent each of, convictions of the members of Every who court subscribed to its final draft. proposition upon present opinion is based thoroughly fully was then considered and answered. my original Three of associates dissented from the opinion. dissenting opinion An examination of that upon will disclose that it was based the sole contention us that the matter before involved a rather collateral, direct, than a attack the trial orders court, only, objections and, for that reason raised could defendant considered or sustained. No question dissenting opinion was raised in that as to the soundness of the conclusions reached the then majority upon noteworthy, merits. It is therefore, opinion present prevailing theory in the of opinion dissenting are former that we here con- with a instead of a collateral, direct, attack, fronted correctly repudiated; expressly held, is it is as original opinion, appeal we held in our does upon of a the orders the trial involve direct attack court. establishing

In this case we are law for future guidance attorneys of district and the courts. Un- fortunately, perhaps, dealing arewe here with the rights statutory a constitutional and of defendant who guilty by jury. finding a has been found That of guilt majority opinion. is stressed somewhat guilt, a But the fact of if it should never fact, be deter correctly interpreting us from the constitution and adopted pursuant thereto. We should not statutes merely change particular fit a the law the facts of revolting might matter how those facts be. case, no application protects alike, The constitution all and the protections rights is constitutional to individual guilt dependent or innocence never made Bouse, As an accused. we said Or. 264 P2d 805: * “* * appellate we are con- court, As only questions a of law in case such with cerned retry guilt or facts. The this; we do person is matter exclu- of an accused innocence * * * jury sively In 16 CJS determination. not be those the constitutions. sonal dependent 579, Constitutional asserted “ “ (c personal ‘Constitutional ‘The courts 6 ^[*] under rights withheld as a ^[*] suspicion m rights guaranteed are matter of the favor Constitutional # in the available to all alike must ever be watchful ^[*] Law, §199, guaranties pertaining slightest right. violating rights it court, degree state and federal cannot be stated: law.’ but even from may protect ” should made per- are here we establish- be remembered must It may say today to meet precedent, what we ing may exigencies rise tomorrow to smite this case factual a more meritorious situa- face when in the us presented. tion my opinion, present majority court this announcing as the certain rules which do not

is law meet the demands of the constitution and statutes of may, opera- practical and in their state, which dangerous rights prove of in- to the established tion, dividuals. argument,

Stripped prevailing extensive of its following opinion, interpret I it, as establishes the rules: time concerned,

1. insofar element is That as right speedy applies trial the constitutional with equal neither cases, force to both civil and criminal with having any right preference other, over the and of civil cases a trial docket existence delaying “good trial cause” for constitutes beyond fixed criminal case the time therefor stat- ute; beyond criminal

2. That the continuance of a prescribes the statute it term of court judicial solely a matter of tried, discretion, should be subject being upon the a discretion exercised court’s re- and that such continuance cannot be motion, own except discretion; for an abuse of and viewed parte continuing general and ex orders That 3. beyond criminal, of all civil cases, the trial that a criminal the statute directs case in which term “good for cause” exists not so tried unless must be verity import trying existence of such it, binding, though even valid and are cause, opportunity afforded an been to be has not accused by himself or counsel. continuance as to such heard principal constitutes the stated first above The rule prevailing opinion; its ultimate foundation entirely dependent thereon. other conclusion subsidiary thereto. more or less are rules The record reveals defendant was arrested on January 18, lodged jail. jointly She was indicted with Williams on 24. Her January codefend- ant filed a demurrer to the indictment, which was sustained. I note that the attaches passing, majority some to the caused delay importance filing of this demurrer it is obvious that (some days), but in no nor did way responsible therefor, defendant was in in fact, any such delay, play important part case. defend- 25,

The case was at issue on when February ant her of “not At guilty”. time, entered plea of the term of court. January remained On days that a trial attorney requested March the district the trial of the two defendants. It ap- date be set for that on March the state was therefore, pre- pears, It assumed that defendants also for trial. pared at no time did either trial, for because ready were as defendant trial, delay except take any steps for a trial, motion filed separate Kuhnhausen’s The be considered such statute step. March 14, might such a motion. to file When right her the gave the cases were at commenced, of court term April Williams, defendant and as was know both issue as to The were to be tried defendants judge. the trial trial court also knew that both de- separately. of- nonbailable jail upon confined were fendants confined since continuously had been so fense, knew that under the express provi- He 18. January were entitled to be tried dur- both the statute sions of term court. The state elected to try April ing found a date for readily the court first, Williams That trial month of con- April. during trial his and terminated on days three approximately sumed remained of the days April time 71 20. At that April languished jail, although she defendant term, brought claimed, it is there because, to trial contention docket; no cases set on the were civil any were criminal cases that there ever made has been trial. on the docket for important,

Vitally however, is the fact judge according May the trial to the statement of hearing upon (made mo- defendant’s at the time indictment), cal- the court set its tion to dismiss all so set trial, and cases endar did not set defendant’s case were civil cases! He did do so until indeed, he time, nor, for trial at that expired. early July, April It term had after the credulity accept proposition that one’s taxes reasonably found for the trial of de- could no time May during and June, when the months fendant only required days approximately three were therefor. majority opinion, it stated: In the * “* * nothing in the there is However, court, forbids a trial the exer- statute which finding an ac- from discretion, sound cise of a/)id already of civil criminal cases set cumulation good (as appears case) for cause in this constitutes The are a case. trial courts continuance of criminal certainly notice of the condition entitled to take dockets.” their own foregoing to cases statement refers where

If the attorney applies, defendant moves, or the the district provided in I am statutes, the continuance, as for complete from a factual However, accord therewith. applied case, instant the above standpoint the misleading. decidedly bar, case at the statement criminal” cases “civil and no accumlation there was only already an accumulation trial; there was set for evidently for trial set were of civil cases—cases May long on against after the ease defendant was ready at issue for trial. Other than the Williams jury trial, no during criminal case was tried to a the April (in term during January of court neither fact, April court), although during January or terms of April terms some 33 criminal matters were dis- posed upon pleas. It is a matter of common knowl- (and edge to most members of this who court, have experience judges, had extensive as trial a matter of personal knowledge) disposal of criminal upon pleas, jury matters and without does not trial, seriously delay orderly progress nor interfere with the being of the trials of civil or criminal cases then heard; only slight interruption occurs. finally

Defendant’s case was set for trial for August approximately seven months after she was only assigned first indicted. And the reason for delay upon when matter was the trial court before dismiss, motion to existence defendant’s civil cases the trial docket! foregoing squarely presented record to us the question only whether the existence of civil cases “good delay the trial docket constituted cause” for meaning emphatically statute. We within question negative. answered That was the principal principal then; it is the issue issue now. To majority opinion, necessary uphold present it is position. I have former discovered no reverse our doing. sound reason so pointed original opinion we out that under In our guaranteeing speedy to an accused a the constitution Oregon), (Art §26-2002, of and §10, Const gives (OES 134.120), effect to the con- OCLA majority (and present opin- provision stitutional quoting from decisions which that much, ion concedes have some state), does of criminal cases the trial so noted the preference trial of civil cases. We over the appli- in this state statute is no similar that there fact repeat all I do not intend civil actions. cable to opinion, original subject but, in our was said quote state- emphasis, two I do wish for the sake page it P2d, 703 of 266 At contained therein. ments is stated: by this is, action in a criminal “A defendant speedy guaranteed provision, trial.

constitutional court.] [Citing cases decided right very of an times the earliest “From recog- speedy person to a trial has been accused guaranteed it is nized. In the United' States statutory provisions. It is a constitutional judicial subject right, one not fundamental persons accused of to all It extends discretion. guilty as to the innocent.” as well crime, to added.) (Italics page P2d, said: 705 of we

At * *

“* prefer- There sound reason for this usually problems to do with have Civil ence. money, property, status, whereas criminal or liberty, personal freedom, cases involve Magna Charta the individual. Since life of often, liberty, protection and freedom of the life, the individual English-speaking primary concern of the has ever been for and the basis substance

world, incorporated Eights into federal the Bill constitutions.” state and several comprise worthy my associates who sure I am majority not intention- present in this case would exactly deny Yet that is ally truths. fundamental those they doing they hold that when are of what the effect (not criminal, nor civil of civil cases accumulation and the trial docket upon was criminal) “good canse” for the trial of defendant for a continuing of period six months after her case at approximately was issue for trial, and, ready particularly, continuing it the term in which the statute beyond specifically it that should have been tried. directs In our did not original we intend nor opinion to, did that to the we, say preference given trial of under all cases, criminal was conditions nor absolute,' that of should be right preference exercised in of the trial civil eases. total We did intend disregard did that in the and, effect, say light to say, this criminal case, record in this did have proceeding as to trial term preference during April a right list of civil eases the trial docket, of court over the “in order to afford the defendant a that speedy and to thus case, preserve in this her protect was it right, duty court, constitutional if take one or more of the civil necessary, to cases off also said: “The fact that a We number the docket”. set for trial no has been valid civil cases excuse set criminal case promptly failure to for the with the necessary comply mandatory issue, at if statute(Italics To that added.) provisions of the rule Al- apply preference. did we only extent in our more said original much opinion, though basis for our constituted sole ulti- foregoing majority neces- present opinion conclusion. mate otherwise, it would holding; have rejects sarily build. taking no foundation has erred. majority think the I position, given by attention is majority Considerable Lee, 110 Or 224 P 627. In our case of State certain general noted statements we opinion original discussion 705. Onr v. Lee: P2d contained immediately had made after we of that case followed quoted. said: above We the statements this court said unmindful of what are not “We * * * 224 P 627. Lee, 682, 684, Or State v. ÍÍ ^{[*] [*] [*]} # # acknowledge unequivocal the the fact that “We give further state- criminal statement that ‘The law does way” “right ’, the of and the right guaranteed our fundamental that ‘the

ment “speedy” hearing applies to alike civil law might be misunderstood causes’, and criminal and well create confusion.” some my opinion present majority holding clearly In the misunderstanding demonstrates such and confusion. propositions, As abstract it is that neither true any expressly gives “right nor statute constitution way” criminal and cases; of to it also is true that guaranteed right by our “the law for a fundamental ‘speedy’ hearing applies alike civil and criminal to single If to all we had consider was the causes”. provision “every man” constitutional has the * * * “justice right openly have to administered purchase, completely delay”, and without and without applying to criminal and no statute there was trials (OES 134.120), might OCLA we §26-2002, such as literally, accept in Lee State v. and the statements well apply apply But cannot take and them. we those so doing in a literal without sense violence statements Rights, specifically, purposes and, the Bill of of basic mandatory provisions of the statute. to placed upon interpretation we constitu- The statutory rights of the defendant our and tional keeping right; original opinion with natural it public policy carried out the established of this state. (OKS 174.030) Section provides: 2-223, OCLA equally susceptible “Where a statute is of two interpretations, right, one in favor natural against prevail.” the other it, the former is to When all is said it done, manifest that in opinion weighed simply our former we the relative rights private litigant against of the in a civil case as proceeding (one of an those volving accused a criminal in- gave offense), preference a nonbailable right speedy to the as accused insofar necessary comply that was with the constitution present majority and the statute. effect completely opinion concept is to reverse justice. pref- administration of lieu rule originally trial of a criminal case as to the as we erence majority practical in a real and is, it, sense, stated substituting which, a rule under facts in in- actually gives operation, pref- and in its case, stant notwithstanding to trial of civil cases, erence contrary. plain effect of to demand and the statute (OES 134.120). § 26-2002,OCLA following majority in I statement note the opinion: “Turning provisions to the now the statute agree

[§ allwe that if. a OCLA], court, 26-2002, bring imprisoned fails to an defend- cause, without the next term of court in- to trial at after the ant all discretion to loses continue the he dictment, purport supra, of State Clark, is the case. Such by the defendant.” cited speak not of “cause”, statute does course, the

Of “good “good If cause” the con- cause”. but any the court does not exist, “lose” does not tinuance because it discretion, no discretion has to lose; but it mandatory duty perform; does have a to that is, to dis- miss the indictment. holding in v. Clark, 86 Or 464, particularly

P apropos 944, referred to above, is to the problems confronting us in the instant case. After quoting Oregon, § Art 1, 10, Const of and what are now (OES §§ 134.110) (referring 26-2001, OCLA to the prompt indictments) return of and 26-2002, OCLA (OES 134.120), speaking through this court, Mr. Jus- tice Moore, said: spealdng right “In of a defendant in a _ prompt hearing,

criminal guar- action to a which is by organic statutory anteed law enactment, a text-writer remarks: “ theory, right ‘In speedy at have been to a least, trial may recognized said to at common * * very early law provision, adopted times. This constitutional the old common in- law, is .from prevent oppression tended to of the citizen by holding prosecutions suspended criminal over prevent delays him for an indefinite time; justice, by imposing the administration of on the judicial obligation proceed tribunals an with rea- dispatch sonable in the trial of criminal accusa- Cyc. tions’: 8 70. See, E.C.L. also, 498. “The clause our Constitution hereinbefore

quoted, evidently applies delay’ to the trial ‘without particularly all causes and not to criminal ac- of tions. Article Section I, the Constitution of Oregon, criminal declares, however, that ‘In all prosecutions, right the accused shall have the public impartial jury county in the which the shall have offense been committed.’ Though ‘speedy expressly trial’ assured law, our fundamental the command therein that justice delay’ shall be administered ‘without is so nearly synonymous, phrase, the later when

562 with, in

construed connection the statutes herein- quoted, guaranteeing before will be treated right speedy by an to a trial. a Such examination judicial according tribunal a trial conducted to regulations proceedings fixed and rules, law, capricious oppressive free from vexatious, de lays, by justice: created the ministers of 6 Am. & Eng. (2 ed.), 2 993; Enc. Law Nixon v. State, (10 (41 Miss.) Wyo. 601); M. 497 Am. Smedes & Dec. (98 Keefe, 122, 17 227 Pac. Ann. State v. Cas. 17 (N.S.) 896). 22 161, L.R.A. legislative guarantee

“The constitutional and speedy party formally charged a a with necessarily deprives a crime, the commission of delaying, in cause, discretion without court a all hearing, right legally such and before can be de affirmatively appear inspec it nied must from made the court that a tion the record reason the trial a continuation existed: able cause Begerow, (165 Cyc. 133 349 re Cal. Pac. 499; 12 Rep., 528) Am. 56 ; St. L.R.A. State 624); Rosenberg, (142 Pac. v. Or. v. (142 624).” (Italics mine.) Pac. Hellala, 71 Or. that the court made a noted statement It will be supra, quite Lee, later made in State to that similar immediately qualified it. It also will be observed it but “losing” speak of the court Moore did that Justice legis- that “the constitutional he said discretion; * * * necessarily deprives guarantee a court lative hearing”. delaying, cause, without discretion of all mine.) it has no discretion (Italics words, In other statutory rule of constitutional a strict matter; governs. law import plain of the above discussion greater proposition that much to establish

court is right of a and is attached importance must right in a than such case a criminal speedy trial proceeding. civil briefly

Let consider us tbe effect of an established (particularly rule that the trial a criminal case one involving offense) preced- a nonbailable does not take ence over the trial of civil cases.

Under this rule a court of civil with hundreds cases ready (and actually at issue and for trial this situation prevails county), at times in Multnomah set them could try for trial order, all of set, without them, regard brought to the criminal later cases to issue, pending. but which are The trial of criminal indefinitely could thus be continued because congested justify trial docket. To this continuance of the criminal trials, all that the court need do is to general parte enter a and ex order of continuance at reciting congested term, end of each condition affording of the trial docket—an order made without proceeding or his in the defendant counsel criminal opportunity import to be heard. an Such order will “verity”, according to some of and, our decisions, verity”; truly “absolute this creates an “iron cur- tain”. during all time,

And what becomes of the rights statutory per- constitutional of an accused speedy specifically, trial, son to a and, of an accused jail upon person a confined nonbailable offense; may in truth be an accused who but innocent, whether guilty supposedly protected innocent, or one who was by the fundamental law? supposed may that the

It be said situation is not likely being happen; but under rule to established by majority opinion, happen. it could The sound- by likely never tested what is to occur; ness of a rule is might provide what occur. It is tested it legislature against just possibility such mandatory provisions § adopted 26-2002, OCLA (ORS 134.120). legislature did not intend to leave question of the enforcement of an con- accused’s right speedy stitutional trial to rest the shift- judicial ing again quote I sands discretion. statute: crime, “If a defendant indicted for a whose postponed upon application

trial has not been his brought or his at the consent, the indictment triable, next term court which it indict- after the court must order the found, good to the dismissed, ment to be contrary unless cause (Italics mine.) be shown.” a motion dismiss an It is evident when to prosecution filed, burden, for lack of is indictment placed upon affirma- the state statute, under the beyond good tively the continuance to show cause for upon the defendant the burden term; good of cause. This court has establish the absence 186 P 5. Bateham, 524, 527, 94 Or so held: State “good in- fact, established, in not, cause” is If court has no dis- dismissed. The must be dictment in the matter. cretion attempt complete to show record of the state’s during April trying

good defendant for not cause in directed, the statute is before us court, as term of By process exceptions. of no sound reason- the bill of privilege justice ing could be denied of we or rule determining examining therefrom record and of “good and in existed. law, in fact cause”, whether fine-spun theory by some be blindfolded cannot We attack. Most of our judicial or collateral discretion of general stated that the it was prior in which decisions qualified verity, imported them continuance of orders any only “in the absence by giving thereto effect contrary”. us showing Here the record before shows the absence affirmatively of “good canse”, as the unless, majority now seemingly holds, the pres- ence civil cases exclusively upon the trial docket such a constituted cause.

Section 26-2002, OCLA (OES 134.120), deals supra, a maximum time limit only with a crim- bringing inal case to it trial; has nothing whatever to do v/ith a minimum time limit. As to a minimum time limit under the constitutional of a guaranty speedy trial, each case must be decided necessarily upon its own facts and peculiar circumstances, light law from applicable wholly apart statute. it is my opinion, only those cases where the maxi- mum limit under time the statute is not involved that question judicial exercise discretion might arise. in aE

However, cases where there is a strict rule of law applicable, there is under 26-2002, § OCLA (OES 134.120), the courts are bound to enforce the rule, and discretion is at an end. “Discretion” is de- Lewis, State v. fined 359, 364, Or 232 P 1013, as foEows:

“Discretion is the exercised power by courts to questions determine which no strict rule of law is but which from their applicable, nature and the circumstances of the case are controlled by the of the court: personal judgment Bouvier’s Law cannot Diet. It be exercised where a strict rule of law is applicable as the term ‘discretion’ implies absence of such rule. any Where there is a defined and well-settled clearly applicable rule of the courts are bound to law enforce the rule and at an discretion is end.” (Italics mine.) ex rel. Ricco v. Biggs, State also 198 See Or 413, 422, ex v. Bain, State rel. Bethke 1055; 255 P2d 193 688, Or P2d 958. 702, 240

566

Much is said about “discretion” by majority and of in “abuse discretion” connection with the con- of It criminal trials. is claimed that tinuance cause” the trial “good by judge of finding of and his deter- judicial discretion, exercise proper for an of mination cannot be disturbed abuse except such discretion. I am that an certain,

All exercise agree, will in discretion is involved all cases an where judicial or district by attorney is made a motion application accused, an of a postponement is filed by for 26-905, to the provisions criminal trial pursuant § action of a trial court (OES 136.070). OCLA an or motion cannot be disturbed such application upon an abuse of discretion. That what except Breaw, P State 568, 896, 45 Or 78 State v. held in from O’Neil, v. 183, 284, quoted P by Or Court, Co., v. Circuit Johnston Mult. majority. v. al., and State Barrett et 1027, 12 P2d Or P also from quoted majority, 121 Or different from those were present the issues somewhat in case. the hearing of a motion upon is conceded

It for lack of prosecution, indictment to dismiss if “good finding dispute, are cause” the facts evidence, involves an court, based the trial discretion, such finding cannot judicial exercise for an abuse of discretion. That except be disturbed al., v. Barrett et State It supra. held is what we v. Bateham, State our decision effect of also is the supra. al., et defendant Barrett was con-

In to his trial Prior he moved he appealed. victed for lack of the indictment prosecu- for a dismissal basing upon § Ms motion what tion, is now 26-2002, (ORS 134.120), supra. sup- OCLA His motion was ported by tending affidavits to show that the trial had postponed application not been on his or with his Contrary consent. affidavits were filed on behalf of tending expressly the state, to show that had he re- quested postponement. and consented to the A dis- puted presented issue was there to the court of fact for doing The decision. court denied the in motion, but necessarily it so, found that defendant did consent postponement. disposing to the In of this Mr. matter, speaking (page Justice Rand, for the court 59 of 121 Or), said: “* * * upon passing preliminary In motions questions

to trial where are involved, the of fact position trial fact than is in a court better to determine the appellate court, for that reason, questions open are such appeal for review of fact palpable unless the error is and there has (Italics mine.) a clear abuse of been discretion.” supra, appealed Bateham, defendant from a conviction an offense committed Mult- county. July He was on nomah indicted 30, 1918, year. and tried December of that He entered plea the indictment, his and the case was at issue August. county term of the June Multnomah Monday Sep- to the court extended first circuit succeeding was not in the tember. He tried next (October), nor in the November term. term His trial for December 3. At that time was set he moved prosecution, pur- for lack of the indictment dismiss provisions § of what now 26-2002, suant to OCLA 134.120). supported (ORS his motion He affidavit delay effect that the was not due application or with his consent. It was also to his appear only seventy made “that to criminal cases were county during tried in the Multnomah circuit court period subject”. in the mentioned the affidavit on that opposed by disclosing The state the motion affidavits in substance that the trial docket of the circuit court with at was so crowded issue and for trial that impossible it was to reach the defendant’s case earlier; “that at each term the court the end had made a of continuing general order all business to unfinished following dispose the term want next the time to of owing prevalence that to the of influenza it; of requirements and in deference to the of the board of jury health no had been summoned for the November (Italics mine.) appeal, term.” On the court dealt alleged in first with the error the denial of the motion discussing question, In dismiss the indictment. (page Or): part, Mr. in said 527 of 94 Justice Burnett, question the state has crucial whether “The brought exception embodied in itself within the [§ 26-2002, the last of L.O.L. clause Section contrary good the be OCLA], ‘unless cause to ’ by state, shown. the the de- no cause is shown If dismissed is entitled to have the indictment fendant * * * cannot draw a conclusion course. We only to the defendant from the fact favorable seventy Multnomah criminal cases tried in the were during period in mentioned the Circuit Court policy subject. Fabian affidavit on that To aid the showing ought the state defense, of the disclosing by combated sworn statements succeeding during terms there were times court could have when the return indictment by state of case made this case. The heard largely contrary’ appeals ‘good to the to the cause pre- trial court and are not we discretion say pared record before us that the from the (Italics abused in this instance.” was discretion mine.) again passing upon the trial court,

Here required dismiss, motion to to consider and decide the facts. It obvious that the facts set forth accepted in the the state, affidavits filed if as true “good trial court, established cause to con- trary”. passing upon preliminary those facts as a denying to the order the dismissal, the trial court necessarily judicial exercised a discretion. undisputed! case,

But the instant are facts There are no conflicts the evidence. It follows, only question that the therefore, for determination is undisputed “good those whether facts constitute cause contrary” finding to the as a matter law. The they “good the trial court that did constitute cause” beyond statutory for continuance the the is limit, a legal finding upon conclusion; it is anot of fact based disputed testimony. light in the Hence, of the un disputed facts, no occasion arose for an of exercise judicial applicable With discretion. a strict of rule law undisputed (§26-2002, supra), to OCLA, the facts the apply trial court was bound to the rule; it had no principle discretion to do otherwise. This law state. axiomatic See State ex rel. Bethke supra, Biggs, supra, Bain, and State ex rel. Ricco v. applicable the authorities therein and cited. rule succinctly stated in ex rel. v. Bain, Bethke page supra, at as follows: dispute, where the facts are not in

“However, appli- rule of and there exists strict law that is question ‘judicial no discretion’ cable, arises. judge positive duty is under the of cor- The trial applicable rectly applying rule the of law.” proceedings quoting the from record of occur- hearing ring motion to dismiss the majority quoted portions has indictment, those which, only apparently necessary it believes are to support position. very impor- its It overlooks some parts portions tant of that I record. deem those important the record now be referred to far more to a determination of the basic issue in this case than quoted by majority. quote what is I now from the record: attorney]: [Defendant’s

“ME. Now, JACOBS as to the reason I have set forth in the affidavit, probably my opinion why it is as to own brought case wasn’t trial in the last term of [then Court, was, we know that Mr. Lindas district attorney] attorney conducting campaign for general likewise, which took a lot of his time and, right should that, he had do but defendant penalized are con- that, not be because of we your tending here bail, that she has been without January jail County Honor, since 18 in the August will be here until this case is tried and I think that is unreasonable time and discharged custody. from defendant should be [Present BEAD district attor- “ME. SHAW * * * ney] a statement in : Mr. Jacobs made thirty-three regard Dis- other cases that the to the Attorney’s through office has taken courts. trict point none those out to the I wish to Court [Wil- were tried. These two cases cases involved only Kuhnhausen], think, I are the liams and Kruger case, case, that we outside one other past requested two dates have (Italics mine.) terms.” interrogated dep- a court itself called The trial following testimony uty county a clerk as witness. given: was you court) (By Mr. are aware Santos, the “Q year, approximately how the first the since elapsed period the trial

long between of time has by setting of those cases me and the actual dates average how words, ? other for trial on the down setting I been them advance? far have averaged or three “A it has about two Oh, months.

" usually set the first I cases on THE COURT: normally have that case would month and of each recall, As I for trial the first June. set been period I far in was set so was one when there month, I on the first of the that did not set advance elapse, period for a months’ but I waited two time, am not but I believe that sure, and I so was July. until I set this the first of I don’t believe you any do have or Santos, recollection record Mr. when me to May by letter dated was delivered you? " INo, THE WITNESS: don’t. you than COURT: fact that “THE Other immediately prior it must been have

believe notice which is out on was sent State Exhibit 3 which my July me bear out in would belief on the not set cases first I did of June be- set so far I advance, I was and waited cause My elapse. months to recollection is, for two Mr. that I set cases didn’t the first of June. Jacobs, May, on the and I set them so far I set first of July that I until waited the first of in advance I set recall, I was because, close to three (Italics mine.) at that time.” in advance months (in open his statement affidavit, and Mr. Jacob’s political campaign court) about then district being attorney trying for the cause failure of during April disputed term was not defendant judge present attorney. nor district sorry day, recognize when indeed, we It will activity prosecuting “good political of a official as “good promptly any part cause” for not or cause” imprisoned bringing to trial. Notwith- defendant standing, really important thing that is not the de- veloped by foregoing the record. conclusively

That record shows, and I wish again, May emphasize fact that on when the 1, court states it set cases for trial three months in ad- (accounting vance for the court’s failure to follow its practice 1), on usual and set June defendant’s long ready been at issue trial; case had her for already Why had been codefendant tried. it that May her not set for trial on case was when the trials explanation of the civil cases were set? No whatever having appears in the record for its not been set at attorney time! A demand the district any required by it be was not statute of this state. set supra, OCLA, itself made the 26-2002, demand, Section continuing Chadwick, and it was demand. State v. positive 150 Or 47 P2d 232. It was court’? duty mandatory requirements to see that the judicial not a matter statute were it was dis- met; disregard But, cretion. evident defendant’s con- statutory guaranty during a trial stitutional and April (two months of on term which remained May 1), May on set the trials of civil court, exclusively period of three months in eases Hence, into the next term of court. advance and congested May its own docket of court created “good claimed, it is now constituted which, cases, civil trial. Are of defendant’s for the continuance cause” statutory rights of an accused the constitutional particularly, easily denied, and, evaded and so be rights for months been who had of a defendant the continuously jail? no reasonable Under

confined judicial theory an be deemed exercise could perform simply failure to It was discretion. duty. 135 P 870. Klein, 67 Or In re Von absolute As before no observed, good reason, nor, fact, reason any whatever, for not assigned including defendant’s case in list of cases set for trial on May 1, unless political activities of then dis- trict attorney considered some sort of reason. On 1May no other criminal case was pending and await- ing trial. Despite record, it is now an- calmly nounced in the prevailing that the trial court opinion exercised a properly judicial discretion in continuing trial defendant’s the term beyond fixed therefor by of positive rule law. Judicial discretion! Is no there limit to the excusable errors that be may committed in thy name?

The rule we established in our original opinion, but which the majority now rejects, to-wit: the trials of criminal cases do take over precedence the trials of civil cases to the extent to necessary comply with the constitution and is not statute, exactly a one- way As proposition. was stated in recently Portland aby noted U. S. District Judge of the Eastern District of “The Michigan: has public right the to demand * * that an accused shall have a person trial *. speedy of Certainty prosecution are prompt punishment more effective deterrents than heavy sentences.” It is manifest has public no such direct interest in the trial speedy of civil cases in general. To further of the interests public speedy of crim- inal cases is the of principal purpose the restrictions of such placed upon postponement trials §26-905, (OES of OCLA provisions 136.070).

I deem it further discuss this unnecessary point. rule opinion, sought be established in my which denies opinion, any right prior- the prevailing for the trials of criminal over those of civil ity cases with cases, fraught liberty to the danger rights prove it is a rule which individuals; I believe will public’s inimical to the best a rule that interests, justified light plain meaning cannot be of the constitution and statutes. parte

The ex order for continuance in this case, majority upon strongly so relies, has ground “good its sole cause” therefor presence only, on the trial docket of civil cases May prevailing opinion set for trial on 1. The must premise “good stand or fall such a matter That is cause”, as law. the issue. published I before me the have comment of dis- tinguished legislative assembly member of the of this concerning original opinion. pertinent our state It is so adopt my to what I have in mind that I it as I own. quote: provision speedy trial] [for in- “Such a original rights bill

cluded in the as amendment to the and was VI founded on historical United States Constitution background. In totalitarian protection, the citizen has no such countries, where languish days, persons have been known to accused years being brought months and without to trial. principle speedy trial in Once the criminal cases indirectly, qualified pro- even or modified meaning, person if a its and can tection has lost trial, three months without his case could be held longer, depending upon postponed months, six or or other activities of local officials. the whim The principle applica- such, must stand or and its fall merely depend upon degree tion cannot (Italics mine.) violation.” opinion prevailing space devotes much to a relationship of the between the constitu- discussion § provision and It 26-2002, OCLA. seeks to tional proposition that we in error in were our establish original opinion we said that the statute when con- legislative construction and stituted the definition of provision, having that, and been constitutional contemporaneously adoption adopted with the of the must be read into and considered a it constitution, guaranty. part That, the constitutional effect substantially supra. v. Clark, what said proposition discussing abstain from in this I opinion, right wrong, nothing because, whether or it has by the basic issue in this case. However, to do with discussing I do not wish to be understood as it, subscribing to the now announced. views frequently parte

I ex have mentioned the orders continuing By of the trial court the trials of cases. doing, validity so I have not intended to concede their any purpose my connected with this case. opinion, parte the ex order entered the trial court April at of the term, the end under which it is con- properly continued, tended defendant’s trial was and affording order was made without first opportunity present accused or her counsel an to be directly right or heard, affected substantial of the accused and constituted a denial of her constitutional (Art right §1, to be heard herself and counsel Const, Oregon), absolutely is, her, as to void giving my and of no effect. I refrain from detailed simply reasons and authorities for this conclusion my pro- am because I advised one associates poses phase problem, to discuss that he complete question. and I are in accord opinion. I adhere to our former opinion. in this concur JJ., Perry, Rossman dissenting. ROSSMAN, J., gave opinion as first announced of this court

The principle law which a constitutional effect to years Anglo-Saxon, ago, seven hundred deemed so he wrote it into Great Charter. vital that Few rights protect those cherished accused crime long heritage equally can a illustrious. The boast living street, unlettered man amid our most always has in if laws, mind he becomes that, maze of complex legal system, guar- in our the State ensnared rights speedy him a trial. Constitutional antees are by allotting large apportioned portion a to to conjectural, only droplet but a small guilt is those whose stand bereft the mantle of innocence. those who to upon closely us to examine It is incumbent whereby holding justification is offered for the day reverses its former decision. on this this court days to will sit as our successors who in come Those occupy we now will deem that bench which day become an evil if we now oblivious to this was upon Magna rights our backs accused, turn of the protection proclaim a from basic Charta tyranny has faded out of our constitution. of the only assume that defendant is the must not

We may person are at stake. interests Others whose longer jail periods languish than hers. But forget about the moment accused. No for the us let person Taft declared, than William Howard a less country of criminal law in this administration “The principal disgrace The our civilization.” rea- is a why of the criminal law is dis- administration son delay long which attends its grace is because long Normally, wait occurs after enforcement. brought and before he is been indicted has accused way practical rid the criminal law promptly. most trial. try disgrace criminal cases Soon is to itsof original opinion announced, the news- our after indicating began publishing that because papers items holding prosecuting in this case courts and attorneys seeing pending were to it that cases were way improvement, set trial. our for We were on to today lapse but we back to the condition which caused Mr. to “The Taft administration of criminal declare, country disgrace.” law in is a this opinion prevailing purview The holds that, in the guarantee provisions speedy of constitutional preference a trial, criminal case has no over a civil one. judge merely A who view entertains that will count his but will not take note of their cases, or nature importance. operate piece- relative He will a like worker. of In that view the one matter, whose inter- subject paralyzing injunction ests are to the effect of an litigant will a fare no better when docket is set than a Jarndyce Obviously, such as John of Bleak House. justified if we in our are boast that arewe civilized justice, and that our courts administer we must hold person jail upon that the case of a iswho confined in charge important society a more murder to than nothing a civil case which involves than a more small mercantile account. When the State a assumes upon monopoly justice, the administration of it must adjudge promise all cases, whether civil or criminal, promptly. saying it But that not tantamount judge may a sets his he when docket blindfold himself importance and become heedless of the relative of setting legislature of dockets, cases. In our has precedence. decreed that criminal cases are entitled to plain Such is the mandate of OBS 134.120. novelty judge

It of our is no observe circuit judges or one our federal dismiss civil court prosecuted requisite diligence. which were not with Oregon legislation upon very subject: fact, has 41(b), federal 18.260. The rule Buie Federal OBS example A Buies of Civil 28 USCA. Procedure, recent judicial action which dismissed a civil for case prompt prosecution is want of Reed v. National First Gardiner, 194 P2d 109. Bank Or Buies Criminal Procedure District adopted by States, of the United which were Court Supreme the Federal Court the recommendation appointed by that court and headed committee pro- Honorable Arthur T. Vanderbilt, contains vision : * “ * * unnecessary bring- delay in if there is may ing trial, to the a defendant court dismiss ’’ complaint. information or Buie indictment, the Criminal Procedure, Buies of 18 USCA.

Federal subject upon latest enactment the rule is the That represents prompt It of criminal cases. the views profession. of the best elements Before highest to court, it, submitted our as also rule was proposed criminal was rules, other debated and all the throughout by analyzed associations the nation. bar just quoted Surely rule no one would claim under the delay of a homicide case neces- the trial that by judge postponed sary so trial was that if the involving nothing give more his time to cases he could money. important than small sums opinion prevailing makes much ado over the provides provision for a constitutional fact by the enactments of prompt limited cannot be trials thought former legislature. had that our I not contrary. anything This court opinion said hesitancy difficulty in declar- and no have little would to de- ing a which undertook statute unconstitutional timely it followed indictment if a trial was clare say years. say, But can we twelve within, legis- be if the would violated command constitutional require that a trial he lature should had a within period very majority regard short time? The statutory present confining command too “present-day imposed conditions.” If the statute had greater a limit the State than the constitution majority then the should countenances, strike down the statute. The constitution no less the source of power for the state than the shield of the accused. If power people pre- enforce the law is yield then that statute, scribed statute must paramount law. rights No one claims that the established ORS 134.120rise to constitutional status no so that succeed- ing legislature lengthen could the time in which a trial may brought my after indictment. It is belief, how- gives meaning ever, that ORS 134.120 measures and language delay”. to the “without The statute is con- stitutional because it sets maximum time which is comparable only with the time allowed, other jurisdictions, historically. long but also So as the statu- tory historically command within lies the time known contemporaneously, it will furnish the constitu- tional standard. prevailing rejecting opinion, the standard

given by says 134.120, that the ORS criterion of “with- delay” out is the the discretion of trial court. It fur- guide, whereby may no nishes us no rule test, no we faithfully that discretion know the has been exercised. say It is content to that the record this case dis- closes no abuse discretion. areWe left with no may an intimation of what abuse be. The rule under may analysis ways. work both us Let assume a that person a accused of serious crime has been released upon judge repeatedly bail and that the overrules the attorney’s applications district to the set case for trial. judge suppose the that fills

Let us his docket with let us assume that the cases. Now district attor- civil meeting ney, the after with succession of rebuffs, applies for a to this court writ of mandamus directed judge anyone trial. to set the case for to the Can dis- opinion any prevailing hope in the that the man- cern proceeding could succeed? damus duty try the to defendant The idea that the without delay the is entrusted to discretion of the undue by rejected many judge It is not new. was this court ago. years In re 135 P Klein, Von Or was sought proceeding original in mandamus. The an order prosecution direct the trial court to dismiss towas brought to the case was trial within the because not quashed statutory writ on the time. This court remedy by appeal ground from the order that adequate. problem of The fundamental discretion was by manner: handled in this was Justice McBride Mr. upon argument “It is contended by adequate, remedy appeal would not be for the upon appeal the decision of the lower reason only for an of dis- reversed abuse court could be argument fallacious. Either the but ; cretion right had an absolute dismissal defendant presented, upon an abso- or the court had the facts right discretion, matter to refuse. If it was a lute discretion, no we have court exercised that and the any right If, event. other to interfere in by attempted showing made state hand, the required by up law, standard to the jurisdiction try case, and without court was every refusing It to dismiss it. is clear erred petitioner question raise seeks to appeal proceeding have raised could been dismiss.” from the motion evidently ignored holding overruled That today. announced one 581 The next concerns itself with prevailing opinion the statute (now 134.120) OES which construed In the case at language just quoted. bar time has no doubt within which a passed trial can be held without the invocation of the cause” ex- “good which forms a ception of OES 134.120. part written Mr. Justice Brand opinion gathers together bits selected from de- language various cisions in 134.120 has In which OES been involved. Mr. some Brand returned cases, Justice to the original affidavits and records which had been filed in the case. From the of the decisions which sets forth excerpts he it that certain have on appears phrases kept cropping up.

I forth will now set a chronological treatment of the which involved, OES 134.120 was under a belief that a statement of the actual holdings will be more useful meaningful than collection of selected passages. v. Breaw,

We with St begin 586, ate 45 Or 78 P 896. decision That held words “next term” meant the term in which following the indictment was one returned. The court affirmed denial of a motion to dismiss the remaining indictments because they were set for trial in the term the term in following were found. they v. Rosenberg, State 389, Or P 624, v. Hellala, State 624, 71 Or 142 P the indictments dismissed were ordered the defendants discharged. The affidavit the district attorney the effect that he could not reach counsel with for the agreement defendants as to the of trial time was held insufficient cause postponement. v. Clark Or 168 P held that of one defendant, delay

illness of trial one requiring

indictment, and a trial in a resulting in the hung jury the upon other indictment, were good cause the cases to the continuing next term. Moss, v. 92 181 347, Or P the court

In State 449, a denial of the motion to dismiss because of affirmed of the defendant. the consent P Bertschinger, v. 93 Or sustained State 404, 177 63, which overruled a motion to of order validity initially delayed by The trial was agreement dismiss. until and was set two months counsel not between court said : This afterward. the usual result of

“This case is oral stipula- not counsel about which the court is tions between it has not and of approved, consulted and without notice to ample opposing of trial setting that the office of the are convinced Yet we counsel. attorney good acted faith that any district of the in the trial case was delay apparent The shows of that office. record the fault through delay of the was the congested cause thé real that this case the trial docket condition on the first date.” for trial actually open set Bateham, P 524, 5, 94 186 denial v. Or State In ground was sustained dismiss motion to of the Mr. showing. insufficiency appellant’s said court, for the : speaking Justice Burnett, * * “* of the de- policy To aid the Fabian to be com- ought of the state fense, showing there disclosing by sworn statements bated return succeeding terms during were times could have heard when the court the indictment of this by the state of cause ‘good case made case. to the discretion contrary’ appeals largely to the say from are not prepared and we court the trial abused discretion was us that the before record instance.” in this

583 The defense recited merely the number of criminal cases that had been decided. v. Stilwell, State 100 P Or the court 637, 198 559,

affirmed the denial of the motion to dismiss on the ground that was caused delay by the erroneous grant upon the of a application change defendant’s venue. Lee,

State P Or holds everything the prevailing claims for it opinion and is indeed their oracle. v. Goldstein, Or P 1087, affirmed

the trial court’s denial the defendant’s motion to dismiss an from the appeal conviction. The defendant’s order continuing recited that the criminal docket was so it was congested to impossible try additional at eases the instant term. The decision of this court said:

“In of any the absence to the showing contrary, and there is none, we assume that this record, made by a of general court is a jurisdiction, verity; and such has sufficient: State v. entry been held be Bertschinger, 93 404 (177 63).” Or Pac. Barrett, v.

State 121 198, Or 254 P 57, affirmed the conviction, so declared that the trial doing court a was in better than this position court to determine whether the had consented defendant to the delay.

Johnston v. Circuit Court Multnomah County, for 140 100, 12 P2d was 1027, Or original proceeding in mandamus. The court held that the cause of the followed delay procedure was the the defendant by which demurrers, included several a change of attor- a a neys and for of venue. petition change Moltzner, v. State In 140 13 128, 347, Or P2d denial of the defendant’s motion to dismiss was

584 proper ruled that

affirmed. court it was that an and held audit should be made that lack of time dismissing good cause for not indictments. As to showing made, the court said: displayed “Affidavits were counsel for de- argument of at the this case the effect fendant that the orders of continuance made at the close pursuant term, aforesaid, were entered of each prevailed many years practice had to and that judge had no informed affiants that such entirely made. This had been insufficient order impeach record of the court. order be to controlling, impeachment such must made the court itself.” 31 P2d Swain, 207, 745, v. Or P2d

In State from the held the defendant’s absence it was 773, imprisonment good to his California was state due dismissing indictment. for not cause Chadwick, 47 P2d ordered 645, 232, v. Or State discharged. dismissed and defendant the indictment implied good consent that an was insufficient It held that when the trial court The decision declared cause. gives why continued, reason case was this court sufficiency It fur- of that reason. determine the will good time” “lack of cause. stated that ther Weitzel, Or 56 P2d State v. authority 6, held, 98 P2d 163 Or German, continuing supra, the order was Lee, of State verity. to absolute entitled foregoing precedents. prevailing The our are The good (1) opinion of time” a “lack cause holds that dismissing not tried an indictment which was for not (2) permitted 134.120; ORS time within continuing (3) time”; “lack of there was case “lack time” renders the order which recites order virtually unimpeachable because the matter is discre- tionary with the trial court. opinion penned The by Mr. Justice accords Brand supra, controlling

to Lee, State v. effect. The sound- prevailing ness of that decision is essential opinion. pronouncements Unless State v. Lee prevailing opinion are correct, the cannot stand.

The indictment in v. Lee, which accused the nonsupport, defendant of the crime of was returned November 1921. After had the indictment been the defendant released from returned, incarcera- recognizance. tion his own Later, cause was finally, continued from term to term of until, court on March 13, it was set trial March for 1922. continuing orders the case from term to term recited: part “because of lack of time on the of the court to dispose hear and of the same.” March 13, 1922, According moved defendant for a dismissal. showing

decision, “The made the defendant dis- days closes number of the terms of court permitted pass were in which no criminal eases were depended upon heard.” The defendant the statute which is now ORS 134.120. The motion was denied. In sustaining the order of denial, this court’s decision depended upon proposition (1) constitutional provisions provision speedy which make trial make (2) no distinction between civil and criminal eases; continuing court’s order the case to the term next court “because of lack of time” has not been im- peached; (3) setting cases for trial lies within the discretion court. holding in

Since the State v. Lee vital to the prevailing opinion, analysis will now be made of comparatively that decision. The latter is short. The part depended is material to this case cited and

586 Larkin, Ex v. 11 Nev parte Hecht, State 90; 90 v. State Kan 136 P Bertschinger, Or 251; Bateham, v. State P 94 Or P 63; 524, 186 5; RCL, 445. and 16 Let us now 72, §26; acquaint CJ our p authorities. selves with those v. Lee State The first of the authorities cited in v. Lee Ex Larkin. State from that parte de- quoted opinion quoted fuses cision, prevailing Larkin, to Ex parte into itself. excerpt By turning we had a that Nevada statute similar to ORS observe court 134.120. The Nevada found hearing Larkin in the trial court Ex parte delayed was with taken from Ex cause. following good paragraph Larkin reveals the cause, nature good but parte Lee, v. in State nor quoted was not paragraph is it mentioned in the prevailing opinion. occurred, fire had

“The disastrous fact the court-house and so much of the destroying city render it for the court Virginia as to impossible meet, in which to find suitable room to in was, to court, our sufficient authorize judgment, discretion, exercise sound to make said of its condition the unsettled Recognizing orders. fire, after such a members of the bar, affairs to but one consented said orders exception, with did, made, they doubtless being considering, existed therefor.” necessity a public v. Lee, State parallel facts had no Clearly, those have case anything no resemblance they rights esteem constitutional Those who at bar. trial frittered right are loath to see the speedy who that a disaster of the readily away recognize propor- cause good in the quoted paragraph tions described a case. the trial of for delaying Hecht v. concern- v. Lee State and, next cited State The prevail- “to like effect”. used this it, phrase, ing ing opinion quotes part of State Lee which refers employs phrase v. Hecht and “to like effect”. Let ns now turn to State v. Hecht. It was appeal by an the State of Kansas from a dismissal of prosecution a under a Kansas statute simi- which was except expressly provided lar to ours that it that want of time was a sufficient excuse. The court held that county attorney might the illness of a deemed a be delay, going interpreted sufficient for but, cause on, prosecution finding order which as a dismissed illness did not in fact if exist, or that it did justification delay exist it no for because constituted prosecuting attorney might deputy assigned have been rendering to conduct the case. The its court, de- specific examples might indicated cision, what be following a “lack of deemed time”. We take the from the decision: by just interpretation rule of “Guided we inquire fairly comprehended

must what is in that delays excepting of the statute clause for occasioned try of time to the cause. want Circumstances may postponement arise where the of other and perhaps important more cases leave would suffi- although might postponements time, cient such be great expense possible attended with of failures justice. judge, The illness of the referred into reported, already may cases leave insuffi- cited, juror might cient time. of a leave the time Illness finish too short to a trial. These and like contin- gencies suggest try that ‘the time cause’ reasonably given means such time as should orderly purpose assign- for that consistent with diligent dispatch causes and the ment of business. right is not to be defendant frittered away by a arbitrary assignment an of the business of term, as to a time.” so leave too short Hecht, was an instance in therefore, v. which an State affirmed. It of dismissal was does not sustain order Lee. State v. We have v. Bert- State reviewed already schinger Bateham, State v. the other two decisions v. Lee. State cited in

State Lee recites, and the prevailing re opinion taken from 8 and 16 peats, language ECL CJ. Those are but worthy treatises, they were not intended to be used other than as the cited in cases them support used Mr. illustrate its language application. Justice Brand underscored of the material portions v. Lee which from 16 quotes CJ. To set forth in this cited in 16 CJ exhaustively opinion would undue amount of All of the occupy space. cited and 8 ECL have been ex decisions CJ them no amined. A reveals reading support taken do prevailing opinion. They position of a criminal case for the authorize postponement For the court civil cases. try purpose enabling occasioned of time by want “by delay the proposition, v. State, only Sample 16 CJ cites case”, the try In that it case, 367. that 259, appeared Ala 36 So time statutory the was caused by the delay beyond in the of the names box. Alabama jury exhaustion to be tried before the venire the case required law and rendered the court box jury power drawn from the Therefore, the trial court could the box. to refill less said, that term court. As I just in of no further proceed v. only authority by cited CJ is Sample if it delay justified that is its statement of in support of time to the case.” But try want by “occasioned if is warranted caused delay “by that says also 16 CJ trial rendering impossible.” business accumulation cites Common the text statement, that support In Trost, 21 Pa Dist 1081. There the delay v. wealth medical necessity making occasioned was of the victim of the remains pur- analysis ported purpose detecting for crime evidence poison. In the motion the court found that addition, timely elapsed was not for since the full time had People trial of the Moran, accused. Cal support 77 P also cited in of the state- CJ just quoted. ment In in- that case the defendant was jointly All for dicted with three others. four moved separate provided A trials. that un- California statute good less cause was shown or the accused asked for a continuance, his trial must be commenced within 60 days against after the him information was filed. The days trial defendant’s occurred 62 after the informa- judge, setting tion filed. trial docket, his Buckley, trial set first the of one is, one of the jointly three accused with defendant. In sustain- ing act, the decision under review reasoned: “The separate four defendants had demanded trials, and they tried court, were the same if trials must Buckley’s in succession.” follow trial was set for 60-day period. setting commencement within the it, judge vacant, trial left obedient to established period custom, the between Christmas New Year’s Buckley’s Day. protracted. trial was When its end it inferred was envisioned was that it would conclude February Friday, thereupon the court set the begin Monday, February trial to defendant’s 10, which, according the decision, “was the earliest date it put have been commenced unless it could had been Saturday.” preceding But down when it was Buckley’s actually no one knew would set Friday, February 7. The court, conclude sustain- ing denied order which the motion for dismissal, all of the above was that reasonable and held that it delay good days cause for the of two be- constituted period. 60-day I yond shall review no further the analyzed, in all of them re- cited 16 CJ. When They afford, I semble the cases that have reviewed. justification setting my opinion, in civil cases no thereby postponing preference criminal ones jail upon person a non- a is held in the trial of who grant judge they trial offense. Nor do bailable in the administration of con- discretion carte blanche guarantee speedy provisions trial. stitutional which complying bim They with discretion do not invest such as 134.120. of statutes ORS the demands with mandatory, Compliance not dis- statutes is with such seemingly cretionary. part v. State CJ, A of 16 which opinion prevailing overlooked, reads as and the Lee follows: * * “* pressure of time and the the want But attorney, prosecuting part of the of business or judge the court that statement the mere * * * ‘good engaged is not otherwise, has been cause meaning contrary,’ that within to the

phrase.” again cited State the authorities

I revert passage quotes from that it recalled be Lee. It will opinion prevailing re- p § that the 72, 26, RCL, reading quotation. of RCL shows A produces Exami- largely upon in ASR 187. a note relies it indicates in the note cited the cases nation in in- is situation before us approach nearest clogged docket was court’s in which stances § part RCL, 26, A of 8 cases. civil, not criminal, with nor in the v. Lee quoted in neither is opinion is this: prevailing * * *“ providing that one accused A statute speci- brought to trial within shall a crime of fied delay attributable to the where time, mandatory imperative in its prisoner’s act, on the court. discretion no confers provisions, and discharge Hence the accused is to entitled his after lapse prescribed by time law, where he was himself brings not if he the statute tried, within by showing that he not in fault and that he did was apply prose- for a and where the continuance, delay.” cution shows no valid cause for the language repeated That Jur, is in 14 Am verbatim p § Criminal Law, 861, 136. foregoing,

From the we observe an utter dearth of support holding very for the in State Lee. The v. authorities it summoned to aid its refused respond. opposite Some which it cited held to the direct of the conclusion to which v. State Lee Mr. came. Justice author of that decision, rendered Brown, long people Oregon, and meritorious service to the Attorney, Attorney first District as then as Genefal finally, upon Experience and, the bench of this court. judges that even indicates the best of in once a while unsupported by err. As we seen, have State Lee v. is authority. pronouncements Its broad cannot stand the test of reason. teaching Moreover, we know from the experience that when the accused has as shown, she responsible case, did delay, that she was not for just put it the burden the State to prove good try cause for the failure to the case in the Experience term of court. next also teaches that if permitted justify delay by showing State judge engaged in that the trial of civil cases prevailing [as opinion work or office intimates], hope availing never can to succeed in the accused him- right prompt constitutional to a his self of trial. If accepted, provi- are to be excuses such constitutional awarding prompt may statutes trials sions repealed. well be supra, supra, v. Weitzel,

State German, State v. supply cannot the fundamental soundness to sustain Although language the law announced in v. Lee. State similar to that in State can found in v. Lee be holdings underlying cited in it, terms support facts not furnish do its broad doctrine. found to a factor Clark, Consent was in State v. supra, supra, Moss, v. Barrett, State supra. supra, Additional factors in v. State Clark, previous disagreement in that trial a were occurred supra, ill. and the defendant became State v. Stilwell, County, v. Court Multnomah and Johnston Circuit upon dilatory supra, procedure based the were by em delay. ployed in the defendants which resulted the supra, depended upon Swain, the State absence v. jurisdiction. from the Those were the defendant cases fundamentally upon that are causes based different resulting setting from the of civil from a lack time accused’s criminal of the trial. in lieu remaining prose that cases, four which held the The upon dismissed, turned not be the failure cution should lacking good rather cause was than hold that to show good if events, ing true, claimed constituted the that supra, Bateham, v. indicated that the State cause. days have shown that there were should defendant showing been heard. The could have cause the when during of criminal cases heard the number mere of the insufficient. State deemed v. Bert prior was terms open supra, there no that was date schinger, declared have been heard and that the case could cause when open first date. actually down State v. set was supra, that when order held recited that Goldstein, congested, proof and no was to the docket criminal be the order would taken contrary offered, was it was made without claim notice verity against the opportunity supra, Moltzner, to rebut. State v. delay proper in deemed order to enable the State was complete an audit. go farthest the cases last cited prevailing opinion of the is to hold direction support showing made an accused of his motion impeach must the order the trial to dismiss court prove that lack of and also there time, which recites days could case have been heard. The were when supra, Moltzner, that the order statement verity should not taken as absolute be misunder opinion clearly indicates that stood. That the attack in the trial the order should be made court. A the indictment because motion to dismiss of failure charging try in next term and the absence necessarily good order. cause attacks that Because adversely judge decides to the mover does not the trial order stands sacrosanct. The mean that the decision appealed, can trial court this court will Obviously, decision of the trial court. if review literally unimpeachable, there could be order Impeachment depend appeal trial court. from the no showing hearing upon made at the the the mo ent tion. ready this court show that decisions

Our delay of a criminal justify in the trial case when a delay by showing made that the been was caused has dilatory such as event, consent, tactics substantial some unimpeached, packed or an defendant, criminal justify a can doctrine how one such But docket. opinion prevailing attributes to State Lee, v. statutory whereby constitutional accused’s judge him if the trial rights chooses so to lost are he cannot hear arrange that docket case within his perform prop- the allotted If time? fail to courts erly their duties, we cannot visit that failure hapless support prevailing defendant. To opinion, one must assert all of that in cases Ore- gon, other than v. v. Lee, State State Weitzel and jurists German, are unsound and sit- ting jurisdictions, in other men- whose decisions are preceding paragraphs, tioned in misunderstood the guarantee speedy aof trial and misconstrued statutes Clearly, similar to 134.120. OES State v. Lee as a precedent is entitled to no value. opening paragraph opinion

The of this mentions right the fact that the constitutional under considera- Anglo-Saxon jurisprudence tion is a venerable one. In royal King it received assent when John affixed his Magna years in seal to Charta 1215. Four hundred royal again approval. it received later At that time gave royal I his assent the Petition Charles penned by Eights, none other than Sir Coke, Edward acquies- of the common law. the fountainhead The King King nor cence of neither John Charles those voluntary. But neither could documents with- subjects demands of the determined their for stand rights, succeeding which assurance centuries any longer vindicated, be trod have would underfoot. penned he wrote when he knew whereof Coke Eights—for seven had months he been im- Petition of prisoned London Tower without trial and without any charge. great being Those two faced with charters inspiration Anglo-Saxon freedom have been the statutory provisions of constitutional hundreds languish guarantee the accused he shall not period awaiting prison an undue time trial. Procedure, of Criminal Model Code written provision contains this Institute, the American Law (§ 292): “* # * person has been indicted, when against, for an if or informed offense he is -

brought to trial for the offense within has found or the informa- after the indictment been upon prosecution filed, tion the good shall be dismissed * * * person, application of such unless contrary shown, affidavit, cause to the proceeded the cause has not to be- or unless consent or his cause the defendant’s action.” suggests appended that in A note to the section space appropriate accomplish blank “words three months should trial or dismissal within about supplement to the code inserted.” The shows legislation states have which authorizes the dismissal try prosecution for failure to the accused of the within neighboring time. three states of stated Our Cali- Washington Idaho and limit the time fornia, days the fourth Nevada, after indictment. state which Oregon, statutory upon has a limit the same borders as ours. right foregoing, we see

From delay engaged from undue to a trial free has accused of constitution writers lawmakers the attention of time. seven centuries Those friends more than placed justice realized that unless a limit have period an accused can be held within which pleasure awaiting jail at the liberties will be trial, govern- branch of the or executive the crown period years Throughout all of that of 700 all ment. upon the bench has some the man dis- realized willing but none have been matter, in the cretion right subject of the accused even to the discretion object judge. The prospective trial the deter- quest legislation whereby mined was to secure a time prosecution limit fixed and that, would be unless the began within that time the State made an affirma- or inability showing prosecution to do so, would tive be dismissed. compliance

To hold at this late date that with the statutory provisions discretionary and constitutional judge the trial the efforts of the last seven with defeats judge time. Further to hold that a trial centuries of delay beyond of an accused the trial the constitu- can by statutory filling limits and his docket tional with empties the constitution and the statute civil meaning. stripped the words have When been of their meaning, they they remain, it is true, but of their gaunt only rights linger as on reminders effective day departed. have which opinion former is without I Our error. dissent. JJ., concur this dissent. Perry, Tooze dissenting. J., PERRY, agree reasoning, with unable and,

I am prevailing opinion the result, therefore, concurring opinion, dissenting specially and in my why set forth some of I reasons wish therefrom expressed of this court to the views adhere I still opinion. former our prevailing specially concurring I view the As opinions may any opinions, that those have in order they rely upon build, which to must at all foundation general upon entirely order of continuance made by court on June the trial 1952. and entered attempts validity opinion prevailing to breathe making discretionary it with the order into the to continue criminal cases motion his own trial court the indictment term court beyond the next specially concurring opinion and the found, makes an of the court sueh order nonreviewable in this court appeal upon a direct because is not attack the order, but is collateral thereto.

It seems to me that the statute is clear and un- ambiguous. It reads as follows: “If defendant post- a crime, indicted for whose trial has not been poned application his or his be consent, brought to trial at the next term of the court in which indictment is after it is triable, the court found, good must the indictment to dismissed, order be unless contrary to the cause shown”. §26-2002, OCLA, (OES 134.120). This statute sets not the minimum the maximum time in time, but which a defendant being may before be held or tried, the cause dis- say “may” that the court missed. It does dismiss, positive mandatory term “must”, it uses and is ordering any of law, as a rule dismissal unless one (1) exist, of conditions to-wit: three the defendant postponement requested beyond period a has of (2) of the statute, time under terms the defendant postponement beyond to a has consented the time by (3) limited the terms of the or statute, when, al- though expired, the time limit of the statute has say good a trying court can cause existed for not prescribed within the time the defendant limited and by only In this matter the statute. we are concerned proposition. or last, third, with the people § of this state enacted 26-2002, OCT;A, (OES positive 134.120) govern aas of rule law to proceedings. mandatory, Since criminal law vests in the trial court. no discretion “Where there clearly applicable defined and well-settled is a rule are law the courts bound enforce the rule of Lewis, is at an end”. v. discretion 113 Or 359, 598 Long George, 230 P 232 P

364, 543, 1013; 296 Mass Michigan 149; 7 NE2d 574, Wilson v. State Board of Registration Medicine, 228 Mich 199 NW 643; Brokers, Yakima 192 Wash 121, Graham v. Stock P2d 1041. of Klein,

In the In re P case Von Or sought where the defendant release mandamus delay bringing him to Mr. trial, Chief Justice page opinion said: McBride upon argument “It is contended remedy appeal adequate, would not be for the upon appeal reason court the decision of the lower could, only for be reversed of dis- abuse argument fallacious. ; cretion but the defendant the facts Either the right had an absolute to a dismissal court, presented, or the had an absolute right to refuse.” judicial a therefore, not matter discretion is,

It dispute no on the a facts, there is but where matter judgment upon question judicial of law as to showing been a or not there has made whether refusing good application the defendant’s cause for for a dismissal. my “good opinion cause” must be such a cause being recognized capable in the law as lawful

as is right for the violation defendant’s to a excuse by speedy under the constitution as defined trial the the statute, statute. Under the burden terms of the upon to show lawful excuse. v. the State State rests very 186 P 5. The terms of the Bateham, 94 Or making permit govern- an the order not statute do provides ing it for the determination of future; the right retrospect. The of the defendant to a facts statutory for trial when the time accrues dismissal expired, before; it is at this time that and not has or there must determine whether not trial court the why past good cause the defendant was in the existed prescribed. speedy given trial as a not general at such as was issued this case A order January term that the court did not have the end of term, may during dispose such cases time to where continuance is from the of some effect the indictment is returned to the term term in which following, immediately post- a as such continuance only hearing pones the maximum terms of within provided by speedy trial and the statute, a reasoning Abrams, ease of v. of the Or prevailing opinion, apply. P in the would cited us, matter before the continuance of the But in the beyond the statute, the terms of and the trial case in the motion, action on its own absence court’s deny counsel, and her is to the defendant defendant statutory right (for it con- her constitutional and a constitutional the defendant had ceded that statutory right April at to be tried term of the opportunity court) to be heard. without opinion specially prevailing and the concur- ring opinion by approving the action of the trial court general legal giving a a status to order of con- cases that time tinuance in criminal will extend the beyond terms of the statute, done given notice the de- absence of without either destroys entirely her counsel, or the statute fendant dangerous course. This, a because of the and sets given right present to be fact that defendant every stage proposi- rather trial, but at entering cannot, its actions in tion that the court right speedy to a order, waive defendant’s such an (State Clark, defined the statute 86 Or trial as giving 944) opportunity him an P without 464, 168 person be heard in or counsel, because such action § would inbe direct violation of I 11, Art of our Con- setting stitution. It is true that the of the time upon ordinarily, trial, law, motions and, continu- granted application ances on or motion before the impaneling jury, part of the are not a of the trial (State 859), Moore, 61, 66, Or 262 P and presence ordinarily required, aof defendant is not rights being protected of a defendant if his counsel present. alone is The rule that the defendant need present proceedings affecting rights at all not be his proposition question based is that when a being question determined, law is not of fact, then relying solely upon the he is status of the law, matter knowledge of within the his counsel, “for where no pais nothing fact is and all is of involved, law, there is lay prisoner suggest which a can do or in the his case; ’’ wholly keeping are then in the interests of his counsel. Bishop’s § New Criminal 2d Procedure, ed, 235, 269. in this case the violation court, But of the defendant’s represented by right stages counsel at all to be proceedings, adversely determined to the defendant’s rights question of fact, to-wit: that the court did dispose time to this case have within the time prescribed statute. It is undeniable that this is a directly finding of fact affected constitutional statutory right of the defendant. opinion prevailing admits The the order of subject but to attack, the court sustains the decision setting basis that the of the trial court of civil period May days for a 1, 1952, of 71 cases on in ad- long [the case defendant’s had been vance at issue requested a trial had date within the refusing term] a civil to continue ease so as to statutory grant her constitutional and the defendant “good right ‘‘speedy cause”. constitutes trial”, to a argument quickly fallacy if noted, “good wherever there cause”, then, an excuse is such by setting congested civil the trial court docket, is a may a of criminal cases hold in advance' civil cases prison until on a nonbailable offense defendant deny by thus our own definition death, released ‘ ’’ ‘ “ speedy speedy A trial under the constitution. of a according regula- rules, to fixed trial is conducted one proceedings vexatious, of law tions, and free from delay by oppressive capricious, min- created the justice”. Court, v. Mult. Circuit isters Johnston [Italics added]. 12 1027. Co., 100, 103, 140 P2d Or adhering My the views of this court reasons for to expressed opinion may be summarized as in our former by quoting excerpt Kuhn, Ind from v. 154 NE which reads follows: 106, 107, 450, 453, * * “# discharge question not a is The beyond the court, with the matter of discretion prisoner 1853. When the bounds fixed brings section his statute, within the limits of his case discharge right absolute. The courts becomes to People point. In v. Morino, seem united statute, under a similar 892, 24 Pac. 515, 85 Cal. charged party has with crime £A it is said: speedy right and the court trial, to a constitutional right deny discretionary power him a to no has imprisonment prolong important, his with toor so provided beyond law. the time trial out such The statute enough imperative. for the It was by statute, fixed the time to that show defendant expired, and that filed, has information after application.’ postponed on his not been had case Kan. McMicken, re see In effect, the same To 482, 15 State, v. 89 Ga. 473; Pac. Walker Garvey, 4 Pac. 758; re 7 Colo. 553; S.E. People, 16 N.E. 662. 124 Ill. Ochs “There no here that was pretense case or at postponed beyond terms, term, three any procure the attendance of no claim witnesses, at all available; evidence was not times but the its appellant grounds the fact appeal upon there was not time at the sufficient November term to ‘on try case, account of the crowded condition of the docket.’ The November ran term for 5 weeks,—30 judicial days. evidence shows 1 or 2 days busi- were with occupied probate ness, 9 or 10 with charges, trial of days prisoners jail under criminal and about 10 days the trial of criminal cases against persons bail, and that balance of the term in the occupied of civil trial causes.

a* ^[*] # # ^[*] “In aid to the constitutional it is made guaranty, duty judge give preference criminal over civil cases, and a failure of the judge to do so cannot be made to against operate aof defendant to trial right within limits of the statute.” Tooze, JJ.,

Rossman concur in this opinion.

Case Details

Case Name: State of Oregon v. Kuhnhausen

Court Name: Oregon Supreme Court

Date Published: Jun 17, 1954

Citation: 266 P.2d 698

Court Abbreviation: Or.