160 P. 595 | Or. | 1916
Lead Opinion
delivered the opinion of the court.
“If the court below had no jurisdiction to proceed, this court, which possesses only appellate jurisdiction, could acquire none by the appeal. And when a question of jurisdiction presents itself in any stage of a proceeding, and it is discovered that the court has no jurisdiction, either over the parties or the subject matter of the cause, it is the duty of the court on its own motion to refuse to proceed further. Any attempt to exercise judicial functions otherwise than as authorized by law would be a nullity and an idle waste of time.”
Nor can the lack of jurisdiction of the subject matter be waived: 12 Cyc. 228. It follows that the judgment of the lower court must be reversed and the cause dismissed, and it is so ordered.
Reversed. Affirmed on Rehearing.
Rehearing
Affirmed on. Tehearing December 12, 1916.
On Petition for Rehearing.
(160 Pac. 595.)
Mr. Colon R. Eberhard, District Attorney, and Mr. George M. Brown, Attorney General, for the petition.
Mr. Turner Oliver and Mr. Joel E. Richardson, contra.
delivered the opinion of the court.
“Justices of the peace and police judges shall have concurrent jurisdiction over all offenses committed under this act.”
Our former opinion, therefore, was clearly erroneous, and we shall now consider the assignments of error upon which the appeal is based. The charging part of the complaint under which the defendant was tried and convicted reads as follows:
“The said Scott Goodall, on the twenty-first day of September, 1915, in Union County, State of Oregon, did then and there cruelly torment and torture a cow then and there being in said county and state contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Oregon.”
To this complaint the defendant interposed a demurrer in the following language:
“Comes now the defendant in the above-entitled case and demurs to the information filed herein for the reason that the same does not state facts sufficient to constitute a crime.”
Defendant first insists that it was error to overrule the demurrer filed in the Justice’s Court, but this contention is not tenable. The complaint is in the language of the statute, and, as has been well said by the learned circuit judge:
“The facts stated in the complaint show that the defendant has done something that the law prohibited.”
His criticism of the pleading appears to be that the acts constituting the alleged cruelty are not set out with such particularity as is required by Chapter VTI of Title XVIII of the Code, an objection which is waived by a failure to demur specifically upon that ground. As is said in State v. Bruce, 5 Or. 68:
“But having slept upon his rights by failing to demand, by demurrer, a fuller specification of the facts and circumstances necessary to the complete identification of the transaction charged against him as a crime, he cannot be heard to object to the indictment after a trial upon the merits, when it substantially charges a crime in the language of the statute.”
It is also contended that the court erred in overruling defendant’s objection to the admission of evidence, for the reason that the complaint is insufficient. There is no bill of exceptions in the record, and so this question is not properly before us, but if it were, what has been said as to the other assignments would dispose of it also. The judgment should be affirmed, and it is so ordered. Affirmed on Rehearing.