510 P.2d 1340 | Or. Ct. App. | 1973
Defendant was taken into custody by Multnomah County law enforcement officials on June 13, 1972, pursuant to a robbery information. Not until 34 days later was he arraigned on the charge against him.
ORS 134.150 authorizes the court on its own motion, “in furtherance of justice,” to dismiss an indictment. The statute further recites that “the reasons of the dismissal shall be set forth in the order * * This statute, we hold, gave the court jurisdiction to dismiss the indictment, from which dismissal order an appeal would lie, even though the order was irregular in that the reasons for the dismissal were not set forth.
The state filed a timely appeal from the- order to this court. Thereafter, while the appeal was pending, another indictment- based upon the same facts and charging the same crime was returned by the Multnomah County Grand Jury. The ‘state then moved to dis
We affirm, but we do not reach the issue urged by the parties here. ORS 138.060 provides:
“The state may take an appeal to the Court of Appeals from:
“(1) An order made prior to trial dismissing the indictment;
sfc * * * ?5
The state took such an appeal from the original dismissal order.
Affirmed.
An indictment charging the robbery was returned by the grand jury on July -13, 1972.
ORS 133.550 provides:
“hhe defendant shall inr all cases be taken ' before the magistrate without delay.”
While we are here dealing with an order rather than a judgment, in Oregon it has been held since 1873 that dismissal of an appeal operates as an affirmance of the judgment appealed from. Simpson v. Prather, 5 Or 86 (1873). This appears to be the general rule.
“The dismissal of an appeal or error proceeding, as a general rule, vacates 'the proceeding and leaves the decree of the subordinate court in full force. Dismissal has been said to amount, in effect, to an affirmance.⑤ * * *
" ⑤ * * * * *
“The unqualified dismissal of an appeal makes the judgment or order appealed from final as between the parties and res judicata, unless the appellant obtains an order setting aside the dismissal and reinstating the appeal. Rowland v. Kreyenhagen, 24 Cal 52.” 5 Am Jur 2d 358, Appeal and Error § 930.
The second judge, in effect, simply affirmed the order made by the first judge.