110 P. 397 | Or. | 1910
Lead Opinion
Opinion by
The defendant, Chester C. Holloway, was convicted of the crime of assault with a dangerous weapon, and appeals from the resultant sentence, assigning as error the action of the court in denying his pleas of former jeopardy. A motion has been interposed by the district attorney to affirm the judgment on the ground that the plea was not suitably made, and that copies thereof are improperly included in the transcript. No bill of exceptions has been secured in this cause, but there was filed with our clerk a transcript on appeal containing a copy of the indictment and of the journal entries made herein, showing the defendant’s arraignment, his plea of not guilty, trial, that after having been out all night and being unable to reach a verdict, the jury were discharged the following noon, that the defendant’s pleas were overruled and exceptions allowed, and that another trial was had resulting in the judgment indicated. The first plea was subscribed and sworn to by the defendant’s attorney and filed February 12, 1909, and the other plea, which
“The defendant pleads that he has already been acquitted of the crime charged in this indictment by the above-entitled court on the 17th day of November, 1908. This plea is based upon the following specific facts, to-wit: On Friday, the 13th day of November, A. D. 1908, in the above-entitled court, the said defendant was put upon his trial upon the said indictment, and a jury between the State of Oregon and said defendant upon said indictment was in due form of law drawn, impaneled, charged and sworn to well and truly try the said issue, and the said jury, without the consent of the said defendant, have been discharged and separated without rendering any verdict in said cause; that at the time said jury were discharged and separated the said defendant was, by order of the above-entitled court, confined and held in the corridor of the county jail in the city of Portland, Oregon, and that neither said defendant nor his counsel was present in court when said jury was discharged and separated; that said jury when they were discharged as aforesaid had not considered the evidence in said cause a reasonable length of time, and there was, when said jury was discharged, a reasonable probability that said jury would agree upon a verdict, if given further time within which to reach an agreement; that there was no urgent necessity or special cause for the discharge of said jury, and that said jury was irregularly discharged; that said court did not find that said jury could not reach an agreement, and did not enter any order to that effect upon its records, nor did said court enter upon its records any order or finding that there was any necessity for the discharge of said jury. The defendant pleads that the above facts show conclusively that the defendant cannot by the law of the land be again put upon his trial upon the said indictment.”
If a party is formally accused of a misdemeanor and has been held to answer the charge, his personal appearance is unnecessary, and he may be represented by counsel
“The object of refusing to plead was that as in that case there was no conviction, no forfeiture took place, and the property of the accused person was thus preserved for his heir.”
“The defendant * * pleads that he is not guilty of the crime charged in the indictment. It is ordered that the plea of not guilty be and the same is hereby entered of record.”
No order was made herein that the pleas referred to should be recorded. The only allusion to be found in the transcript to these special defenses is the following recital to-wit:
“After hearing the arguments of defendant’s counsel on the plea in bar heretofore duly filed in this cause, and the court, being fully advised in the premises, denies said plea in bar, to which the defendant excepts and the court allows said exception.”
We think it satisfactorily appears from the transcript before us that the pleas were never formally read to the court, and for that reason were not ordered recorded. As the only question presented is a matter founded on the record, the judgment should be affirmed (3 Cyc. 419; Fisher v. Kelly, 26 Or. 249 (38 Pac. 67); Miles v. Swanson, 47 Or. 213 (82 Pac. 954), and it is so ordered.
Motion Allowed: Affirmed.
Rehearing
Decided September 20, 1910.
On Petition for Rehearing.
[110 Pac. 791.]
Opinion by
“A plea of former jeopardy, without any conviction or acquittal, must set forth the facts to show that the defendant has been in jeopardy and must show how and in what manner.” 12 Cyc. 366.
Since it does not satisfactorily appear that the plea was orally made or ordered to be entered of record, and as the transcript cannot be contradicted or corrected in this court by affidavits, we are compelled to adhere to our former opinion.
The petition is therefore denied.
Affirmed : Rehearing Denied.