75 P. 887 | Or. | 1904
delivered the opinion of the court.
1. After the appeal had been taken, it was discovered that the judgment of this court directing a new trial had not been remitted to'tlie court below prior to the second trial, and it is now insisted that the trial court was'therefore without jurisdiction. No objection was made to the retrial on the ground that the mandate had not been issued or filed, and the trial court’s attention was not called to the omission. It seems to have been assumed by all parties that the mandate had been regularly issued and duly entered, and the defendant states that such was the fact in an affidavit made by him in support of a motion for a new- trial. Having thus proceeded to trial without objection, the defendant must be held to have waived the filing of the mandate: 13 Enc. PL & Pr. 837 ; Becker v. Becker, 50 Iowa, 139 ; Foster v. Jordan, 54 Miss. 509 ; Benzinger Tp. Road, 135 Pa. 176 (19 Atl. 942). The formal issuing and filing of the mandate was not necessary to the jurisdiction of the trial court or its authority to retry the case. Further proceedings therein, except, perhaps, for special purposes, were suspended pending the appeal. But when the cause was reversed, a new trial ordered, and the appeal finally disposed of,.the court below was thereby given authority to proceed with a retrial. The statute requires a certified copy of the judgment of this court on the reversal of a cause,' to be remitted to the clerk of the court below (B. & C. Comp. § .1487), and by him entered in the journals: B. &0. Comp. § 1488. This is the official mode of
2. The next point urged is that the jury was improperly drawn and impaneled. It appears that before the case was called for trial some of the jurors on the regular panel had been drawn to serve on a jury in another department of the court, and their names were not then in the jury box. The names remaining in the box were exhausted before the jury in this case was completed, and the court ordered that the names of certain of the persons who had previously been drawn to serve as jurors in the other department, but who in the mean time had been excused, be again put into the box, and from these the jury was completed. The defendant objected to the jurors thus drawn sitting in the case because their names were not in the box at the time the drawing began, and also objected to the entire jury because the names of all.the jurors were not in the box at that time. But there was no irregularity or impropriety in the procedure adopted. The statute provides, in effect, that in all the counties of the State, except Multnomah, .thirty-one jurors shall be drawn and summoned for each term of the circuit court, from which number the grand and trial juries for the term shall be selected. In Multnomah a larger number of jurors may be drawn and summoned when so ordered : B. & C. Comp. § 976. When for any reason the required number of jurors do not attend,
3. For the purpose of impeaching the prosecuting witness, the defendant, after laying the proper foundation, sought to show by the official reporter of the court that his testimony on the former trial on an important point was inconsistent with that given in the case then pending. The State was thereupon permitted in rebuttal, over defendant’s objection and exception, to call the bailiff of the court and the presiding judge, to show that there was no inconsistency in the testimony of the prosecuting witness,
4. Special emphasis is placed upon the objection made to the trial judge testifying in the case. In the absence of a statute making him competent as a witness, the weight of authority seems to be opposed to the admission of such testimony: 3 Rice, Ev. § 196 ; Maitland v. Zanga, 14 Wash. 92 (44 Pac. 117); People v. Dohring, 59 N. Y. 374 (17 Am. Rep. 349); Rogers v. State, 60 Ark. 76 (29 S. W. 894, 31 L. R. A. 465, 46 Am. St. Rep. 154). The position and influence of the trial judge, the weight his testimony would necessarily have with the jury in case of a conflict with some other witness, and many other reasons which readily suggest themselves to the legal mind point to the conclusion that his testimony would, as said by Mr. Justice Dunbar in Maitland v. Zanga, 14 Wash. 92 (44 Pac. 117), “ lead to embarrassment, and would have a tendency to lower the standard of courts and bring them into contempt.” But, whatever our conclusion might be if the
5. The defendant was convicted on the former trial of ail assault with intent to rob, which was deemed a lesser degree of the crime of robbery charged in the information. It is now contended that such verdict and judgment constituted an acquittal of the crime of robbery, and, under the case of State v. Steeves, 29 Or. 85 (43 Pac. 947), was a bar to a retrial of the defendant for that crime. This question was not made in the court below except by a motion for a new trial. Some of the courts hold that, where a defendant is convicted of a lesser crime than that charged in the indictment, and thereby acquitted of the greater, and a new trial is awarded, if he desires to rely upon the former judgment as a bar to the greater offense he must plead it, and, unless he does so, he may be legally tried and convicted as charged: People v. Bennett, 114 Cal. 56 (45 Pac. 1013); Jordan v. State, 81 Ala. 20 (1 South. 577). The authorities, however, are not in harmony on this point; some of them holding that the court will take judicial knowledge of the former proceedings in the case even when they are not pleaded: Robinson v. State, 21 Tex. App. 160 (17 S. W. 632); State v. Martin, 30 Wis. 216 (11 Am. Rep. 567). All are agreed, however, that the defense of a former acquittal or conviction is a matter personal to the defendant, and one which he must make at the trial, and that it cannot be raised by a motion for a new trial: Wharton, Or. Pl. & Pr. 477; 1 Bishop, New Cr. Proc. §§ 806, 813; 9 Enc. Pl. & Pr. 631; State v. Childers, 32 Or. 119 (49 Pac. 801). As no such defense was
The judgment is affirmed. Affirmed.