State v. JacksonState v. Jackson
- Reporters:
- , , ,
- Before:
- Lusk
This is a criminal action in which the defendant has taken two appeals, which have been consolidated for hearing. One appeal is from an order of the circuit court denying defendant’s motion to dismiss the indictment for unreasonable delay in bringing him to trial. The other is from a judgment of conviction. The former appeal will be considered first.
On May 18, 1960, the grand jury returned an indictment charging the defendant with the crime of knowingly uttering and publishing a forged bank check. On May 27 the defendant was arraigned and on June third he entered a plea of not guilty. He was then represented by an attorney, Mr. Donald C. Layman. The ease was set for trial on June 22, but on June 21, the defendant’s attorney notified the district attorney’s office that the defendant would withdraw his plea of not guilty and enter a plea of
“MR. OONNALL: State of Oregon versus James Ernest Jackson, C-38937. May it please the Court, this defendant was indicted during the month of May. He was arraigned on the 27th day of May and the matter was continued for plea. On the 3rd of June he entered a plea of not guilty. The matter was continued for trial. Now, at that time Mr. Donald Lehman [’sic] was counsel of record. He was granted leave to Withdraw as •attorney, and Mr. Holman was appointed.
“The defendant is before the Court at this time to advise the Court whether or not he desires to leave the plea of not guilty in the case, have the matter continued to ‘the September term, is that correct?
“MR. HOLMAN: That is correct.
“THE COURT: What are your desires in the matter?
“MR. JACKSON: Tour Honor, I have been in jail since the 29th of April. I asked for no delay on this trial and it is my understanding under the Statutes of this case I am entitled to a trial within a reasonable period of time. This has been a long term of Court, about forty-five days, and there hasnothing happened. I have asked for no postponer ment and I filed no affidavit for postponement, of-trial. I think trial should be had as soon as possible. ’
“MR, CONNALL: May it please the Court, we feel the District Attorney in this case because of the change in counsel on the first day of July has-shown reasonable cause for continuance in the matter.
“MR. JACKSON: I did not ask Mr. Lehman [sic] to retire in the case, that was his own idea.-
“THE COURT: Well, we have no further jury until September. It will be continued until the first day in the new term.
“MR. CONNALL: Fine, your Honor.
“THE COURT: Set it down for September the 6th.
“MR. HOLMAN: September the 6th. I wonder if we might have bail reduced in this case from three thousand to fifteen hundred inasmuch as the trial is going over until September?
“MR. CONNALL: May it please the Court, the bail in the case now is fifteen hundred.
“MR. HOLMAN: It is now at fifteen hundred. Thank you very much.
“(Conclusion)”
The next event to be noted is the appearance of the defendant in court on August 12, unaccompanied by an attorney, to inform the court that Mr. Holman had “done nothing” and to request that the court appoint another attorney in his place. The court complied by appointing Mr. Lawrence V. Smart, Jr., who has represented the defendant ever since. On August 18 Mr. Smart filed a motion, supported by the defendant’s affidavit, to dismiss the indictment on the ground that the defendant had not been brought to trial within a reasonable period of time. A deputy
The statute governing the question whether the defendant was entitled to have the indictment dismissed is
“If a defendant indicted for a crime, whose trial has not been postponed upon his application or by Ms consent, is not brought to trial within a reasonable period of time, the court shall order the indictment to be dismissed.”
This section is an amendment, adopted in 1959 (Oregon Laws 1959, ch 638, § 16) of former
“If a defendant indicted for a crime, whose trial has not been postponed upon his application or by Ms consent, is not brought to trial at the next term of the court in which the indictment is triable after it is found, the court shall order the indictment to be dismissed, unless good cause to the contrary is shown.”
The amendment was before the court in
State v. Dodson,
226 Or 458, 360 P2d 782, but we found it unnecessary to construe it in that case, other than to observe that the “reasonable period of time” commences to run from the time that the indictment is found. The legislature has substituted a reasonable time for bringing the defendant to trial for the former requirement that it must be done within a definitely fixed time, i.e., within the term succeeding the term in wMeh the indictment was found. The provision of the former statute making the statute
The Constitution of Oregon provides in Article I, § 10, that “justice shall be administered * * * without delay.” This guarantee to the citizen of a trial wi thout delay is equated to the right to a speedy trial. In State v. Harris, 101 Or 410, 415, 200 P 926, we said:
“The constitutional provision for a speedy trial was not intended to provide a loophole for the escape of one accused of the commission of an Offense without trial when the same is had within a reasonable time.”
See, also, State of Oregon v. Kuhnhausen, 201 Or 478 at 513, 266 P2d 698, 272 P2d 225; State v. Breaw, 45 Or 586, 588, 78 P 896.
It follows that the statute and the constitutional provision have substantially the same meaning and, therefore, that the tests heretofore announced by this court Which are to be applied in determining whether
“ * * “Wholly apart from the statute, the constitutional right of an. accused person to a speedy trial contemplates a trial conducted according to fixed rules, regulations, and proceedings at law, free from vexatious, capricious, and oppressive delays. The right is consistent with delays, and, in the final analysis, whether such a speedy trial has been afforded must be determined in the light of the circumstances of each particular case as a matter of judicial discretion. * * *’ ”
Earlier Oregon cases to the same effect were cited by the court.
We are, therefore, to determine whether under the statute, considered in the light of the language of the Kuhnhausen case which we have quoted, the court erred in denying the defendant’s motion to dismiss the indictment.
The total time that elapsed between the return of the indictment and the filing of the motion to dismiss was 102 days. Whether this would be considered a reasonable time under other circumstances than those which the record discloses is not the question, but whether the delay is attributable to the fault or neglect of the prosecution or the court. The defendant was seasonably arraigned and Ms plea entered and his case set for trial within a little more than a month after the return of the indictment. Defendant concedes in his brief that so far an unreasonable time had not elapsed. The trial was not held, how
The action of the court continuing the cause until the September term was authorized by
“When an indictment is at issue upon a question of fact and before the same is called for trial, the court may, upon sufficient cause shown by the affidavit of the defendant or the statement of the district attorney, direct the trial to be postponed for a reasonable period of time; and all affidavits or papers read on either side upon the application shall be first filed with the clerk.” ①
An order of the court made pursuant to this statute will not be reviewed except for abuse of discretion.
State v. Kuhnhausen,
supra, 201 Or at 521, and cases there cited. Clearly, there was no such abuse here. The defendant’s conduct had made a trial impracticable prior to July fifteenth. This was the middle of the June term of court which extends in Multnomah county until September.
The defendant evidently is a man, not wholly unacquainted with the procedure in criminal cases, who finds it difficult to be governed by the advice of his attorney. At the hearing on August twelfth when he
The order denying the motion to dismiss the indictment is affirmed.
We come now to the appeal from the judgment of conviction. The notice of appeal from the order refusing to dismiss the indictment was filed on September 1, 1960. The trial was held on September sixth. The defendant contends that the judgment is void
The first appeal was taken pursuant to
“The defendant may appeal to the Supreme Court from a judgment on a conviction in a circuit court or from an order refusing to dismiss the indictment, as provided inORS 134.120 ; and upon an appeal, any decision of the court in an intermediate order or proceeding may be reviewed.”
“When the notice of appeal has been served and filed as provided inORS 19.023 to 19.029, the Supreme Court shall have jurisdiction of the cause, but the trial court shall have such powers in connection with the appeal as are conferred upon it by law.”
The only powers conferred upon the trial court pursuant to the latter section are granted for the purpose of facilitating the appellate process. They have no bearing on the present controversy. See Gordon Creek Tree Farms, Inc. v. Layne, 358 P2d 1062, 1064.
It is a well-settled rule that after jurisdiction has been vested in an appellate court by the taking of an appeal the lower court cannot proceed in any manner so as to affect the jurisdiction acquired by the appellate court or defeat the right of the appellants to prosecute the appeal with effect. 4 A CJS 396, Appeal and Error, § 607. In 3 Am Jur 192, Appeal - and Error, § 528, this rule is said‘to be “universally recognized.” It has been recognized by this court in a number of cases, including
Caveny v. Asheim et al;
State v. Kleckner, supra, furnishes an apt illustration of a correct application of the rule. The action was in quo warranto against several defendants, only one of whom was served with -a copy of the complaint. None of the defendants appeared and the court entered judgment for the plaintiff by default. The defendants appealed and while the cause was pending in the Supreme Court the plaintiff caused a second summons and complaint to be served upon each of the defendants who, appearing specially, moved to quash the service of summons on the ground that the circuit court had lost jurisdiction by reason of the pending appeal. The motion was denied and a new judgment was entered for the plaintiff, from which the defendants likewise appealed. The first judgment was held to be void because in an action at law the complaint and summons are required under the statute to be served upon each of the defendants in order to give the court jurisdiction of their persons. The second judgment was also held to be a nullity, the court saying:
“No doubt the second summons was issued in the hope of curing What was then recognized to be a fatal error. However, after the appeal was perfected, the lower court lost jurisdiction of the Cause and could take no step to defeat appellants of the right to prosecute their appeal with effect. It is not a question of correcting the record so as truly to set forth the proceedings as they actuallyoccurred * * *. A recognition of any other rule would lead to uncertainty and confusion in litigation, and in effect would enable the lower court to review its own proceedings: (citing authorities).” 116 Or at 373-374.
We consider now the case of State v. DeGrace, supra, and in connection therewith Johnston v. Circuit Court, Mult. Co., 140 Or 100, 12 P2d 1027. Johnston and DeGrace were indicted for violation of the Blue Sky Law. They moved to dismiss the indictment for failure to bring them to trial within the time prescribed by statute and the motion was denied and the case set for trial on a day certain. Six days later the defendants served notice of appeal to the Supreme Court from the order refusing to dismiss the indictment and the next day they filed a motion for an order continuing the trial of the cause, which motion was denied. Thereafter they filed a petition in the Supreme Court for a writ of mandamus directed to the circuit court and commanding it to vacate the order setting the case for trial. The writ was disallowed. The defendant DeGrace was thereafter brought to trial and was convicted while the appeal from the order refusing to dismiss the indictment was pending in the Supreme Court. He urged in this court that the judgment of conviction was a nullity because the circuit court was without jurisdiction of the cause while his appeal from the order refusing to dismiss the indictment was pending. This contention was rejected and the judgment was affirmed, Mr. Justice Kelly dissenting.
In the mandamus case the court .based its decision upon a finding that “the record discloses that the defendants have no substantial ground for their appeal from the order denying the motion to dismiss.”
“We are not unmindful of the general rule that an appeal removes a cause from the lower court and that it can not proceed with the trial during the pendency thereof. However, there are exceptions to this general rule. An appeal from an intermediate or interlocutory order does not divest the trial court of jurisdiction to proceed in matters not involved in the appeal: 3 CJ 1259.” 144 Or at 165-166.
The court’s statement of the rule, as we view it, made necessary a conclusion directly opposite to that reached by it, because when a court tries a criminal action while an appeal is pending from an order refusing to dismiss the indictment in that action, the court does indeed proceed in a matter directly and essentially involved in the appeal. The only question to be decided on the appeal is: Has the circuit court lost jurisdiction to try the defendant because of unreasonable delay? By undertaking to try him the trial court in the DeGrace case, as in this ease, decided that very question and, in effect, as we said in the Kleckner ease, reviewed its own decision.
The fact that an order refusing to dismiss an indictment is interlocutory, is not of itself controlling. No doubt, there are many cases where an appeal from an interlocutory order does not oust the lower court of jurisdiction to proceed with the case in some of its aspects; but if, as here, the lower court cannot try the ease without determining the only question in
It may be observed that the applicability of the rule in question to the present situation was expressly recognized, arguendo, in State v. Clark, 86 Or 464, 168 P 944. The case involved two indictments. Motions to dismiss the indictments were made and denied, respectively, in November, 1916, and June, 1917, but no appeal was taken except from the latter order.- The court said:
“The neglect to prosecute appeals from the orders made in November, 1916, continuing both cases to the next regular term of the court, is a practice not to be commended. The renewal of the motions, June 11, 1917, their denial, and the taking’ of appeals from the latter orders necessarily continued the cases until they are finally determined by this court, thereby carrying the causes over two regular terms of the trial court. As all such delays usually conduce to the advantage of a defendant in a criminal action, such procedure is not to be encouraged and will not hereafter be approved unless appeals are seasonably taken from the original denial of a motion for an immediate trial.” (Italics added.) 86 Or at 470.
So, it was said in the Kuhnhausen case:
“While we are impressed by the soundness of the view that a party should appeal from the first order denying his motion to dismiss. and should not be allowed to put the ¡state to the expense of a trial on the merits while he gambles on the outcome, we have not invoked the ruling of State v. Clark, supra, as being solely decisive in this case because there have been a few cases in which this court has permitted a defendant to present the issue on his appeal from the judgment of conviction.” 201 Or at 549.
As an additional reason for its decision in the DeGrace case the court said that “ [a] defendant could appeal from an intermediate order merely for the purpose of delay.” This is true not only in this class of cases, but in all others where appeals are authorized. But the fact that the right to appeal may be abused does not impair the legal consequences of the exercise of the right. The policy involved is for the legislature. The obvious reason for granting a right of appeal from an order refusing to dismiss an indictment, instead of postponing this court’s consideration of the question whether a defendant has been denied his right to a speedy trial until an appeal is taken from a judgment of conviction, is to provide a means of settling the question before a trial is had which later may be adjudged a nullity. The opinion of Chief Justice Beatty above referred to eloquently portrays the plight of an accused, particularly an innocent accused, in a state where no provision for such an appeal is made. To the end, however, that abuses of the privilege may be kept to a minimum, this court will in future appeals of this character insist that the record be brought to this court and the case put a‘t issue as expeditiously as possible, and will then set the case down for an immediate hearing.
It may be added that, in order to avoid possible future conflicts of jurisdiction, in all cases where a motion to dismiss the indictment pursuant to
We are satisfied that the Johnston and DeGrace eases, so far as they involve the question before us, were wrongly decided and to that extent they are overruled. The circuit court was without jurisdiction of the cause during the time that the appeal was pending from the. denial of the motion to dismiss the indictment. The judgment of conviction is, therefore, reversed and the cause is remanded for further proceedings.
Notes
This section formerly authorized a postponement “to another day in the same term or to another term.” It was amended by Oregon Laws 1959, ch 638, § 18.