204 P. 958 | Or. | 1922
Lead Opinion
“Every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title.”
“If all the provisions of the law relate directly or indirectly to the same subject, are naturally connected, and are not foreign to the subject expressed in the title, they will not be held unconstitutional.”
The defendant vigorously contends that the syndicalism statute is unconstitutional because it: (1) Is an unlawful infringement upon personal liberties; (2) is class legislation; (3) violates constitutional provisions concerning treason; (4) infringes upon the right of free speech, and (5) encroaches upon the right of assemblage.
“Everyone who incites any person to commit any crime commits a misdemeanor whether the crime is or is not committed.”
If it is within the power of the legislature to declare that a given act, when done, constitutes a crime, then it is likewise within the power of the legislature to declare that to advocate the doing of such act is a crime; for if public policy requires the punishment of him who does an act, it likewise may require the punishment of him who incites the doing of such act, whether the act is actually done or not: State v. Quinlan, 86 N. J. L. 120 (91 Atl. 111). At the hearing it was argued, on the authority of Ex parte Smith, 135 Mo. 223 (36 S. W. 629, 58 Am. St. Rep. 576, 33 L. R. A. 606), that any person may, if he chooses, rightfully associate with persons having the reputation of being thieves. There is a vast difference, however, between the act of merely associating with persons having the reputation of being thieves, and the act of joining with such persons in either the commission of theft or in the advocacy of the commission of theft: State v. Hennessy, 114 Wash. 351 (195 Pac. 211).
“Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid or comfort.” Article III, Section 3.
The state Constitution, Article I, Section 24, provides :
“Treason against the state shall consist only in levying war against it, or adhering to its enemies, giving them aid or comfort.”
The defendant argues that the Syndicalism Act, when resolved to its final analysis, declares that the doing of the prohibited act constitutes constructive treason. This argument arises out of the fact that the statute penalizes the advocacy of the commission of unlawful acts “as a means of accomplishing or effecting any industrial or political ends, change or revolution, or for profit.” A single sentence taken from the opinion delivered by Chief Justice Marshall in Ex parte Bollman, 4 Cranch (8 U. S.), 75, 126 (2 L. Ed. 554), completely answers the defendant’s contention :
“Crimes so atrocious as those which have for their object the subversion by violence of those laws and those institutions which have been ordained in order to secure the peace and happiness of society, are not to escape punishment, because they have not ripened into treason.”
• “These suggestions seem to us to need no more than to be stated.”
“No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.”
The same organic law assures the right of assemblage. Article I, Section 26, provides:
“No law shall be. passed restraining'any of the inhabitants of the state from assembling together in a peaceable manner to consult for their common good; nor from instructing their representatives; nor from applying to the legislature for redress of grievances.”
The same organic law which protects the right of each person to speak freely also makes him responsible for the abuse of that right. The syndicalism statute does not attempt to punish the advocacy of peaceable methods for effecting changes: See Ex parte Hartman, 182 Cal. 447 (188 Pac. 548). The same organic law which assures the right of assembling limits that right to assembling “in a peaceable
“to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counselling of a murder” or arson or other unlawful act “would be an unconstitutional interference with free speech.”
We likewise venture to believe that neither Mathew P. Deady nor George H. Williams, nor any of the other fifty-eight members of the convention which framed our Constitution, ever supposed that a statute prohibiting assemblages from counseling the commission of a crime would be an unconstitutional interference with the right of assemblage.
“a statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended.”
Another section of the Code, Section 1440, Or. L., declares that the indictment must be direct and certain as it regards—
“the crime charged; and, the particular circumstances of the crime charged when they are necessary to constitute a complete crime.”
The Code, Section 1448, Or. L., further provides that the indictment is sufficient if it can be understood therefrom—
“that the act or omission charged as the crime is clearly and distinctly set forth, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.”
The crime of which the defendant is accused is a statutory offense. The statute declares that any person who “helps to organize or become[s] a member of, or voluntarily assembles with any society or assemblage of persons” which teaches the prohibited
‘ ‘ The indictment must charge but one crime, and in one form only; excent that where the crime may be committed by the use of different means the indictment may allege the means in the alternative.”
“True, the offense is committed by dealing or playing, but we apprehend that dealing and playing and carrying on a ‘game of faro’ all at the same time and at one sitting, and between the same parties, would constitute but one offense; and such an indictment may be supported by showing that the defendant has done one of these things.”
In State v. McCormack, 8 Or. 237, a horse, saddle and bridle were taken at the same time and place and from the same person. It was held that “the whole transaction constituted but one crime.” In State v. Fiester, 32 Or. 254 (50 Pac. 561), the indictment charged that the defendant murdered his wife,
“by then and there beating her with his fists, and by choking her, and by pushing and dragging her into the water, and holding her under the water, whereby she was drowned.”
The court held:
The means being known to the grand jury, it was proper to allege them conjunctively, for it may have been that, in consequence of the alleged beating and choking of the deceased, the defendant was enabled to drag her to and hold her under water until life was extinct; and, if such were the case, and the facts were known to the grand jury, all these acts constituted the means by with the deed was accomplished. ’ ’
In Wong Sing v. Independence, 47 Or. 231 (83 Pac. 387), the general rule is recognized and the court stated that if a defendant were charged with the sale of spirituous and malt liquors, the charge might be upheld on the theory
*471 “that under a single sale spirituous and malt liquors might have been mixed, so as to constitute but one violation of the provisions of the ordinance.”
In State v. Clark, 46 Or. 140 (80 Pac. 101), the indictment alleged that the defendants did
“take, steal and ride away and drive away and lead away one mare and two geldings; said mare and one of said geldings being”
the property of Frank Miller and the other gelding being the property of Harrison. Kelly. The court held that the wording of the indictment was
“equivalent to an allegation that the defendants did at the time and place specified, and as one transaction, commit the several acts charged.”
In State v. Belle Springs Creamery Co., 83 Kan. 389 (111 Pac. 474, L. R. A. 1915D, 515), the court stated that
“the exposing for sale and selling, as charged, appears to have been simultaneous, and each as part of one act.”
In Herman v. People, 131 Ill. 594 (9 L. R. A. 182), the court said:
“If two or more offenses form parts of one transaction, and are of such a nature that a defendant may be guilty of both or all, the prosecution will not, as a general rule, be put to an election. The right of demanding an election, and the limitation of the prosecution to one offense, is confined to charges which are actually distinct from each other, and do not form parts of one and the same transaction.”
In State v. Sherman, 81 Kan. 874 (107 Pac. 33, 135 Am. St. Rep. 403), the information charged that the defendant
“did then and there unlawfully and wrongfully take and receive an order for malt, vinous, spirituous,*472 fermented and other intoxicating liquors and did then and there contract with Gv J.. Deines for the sale of malt, vinous, spirituous, fermented, and other intoxicating liquors.”
The defendant moved to quash the information on the ground that it was void for duplicity. The appellate court upheld the information and observed that:
“Apparently this was all done at the same time and place and in the same transaction.”
■ The syllabus, which was prepared by the appellate court, reads as follows:
“Where the statute makes either of two or more dis+inct acts connected with the same general offense, and subject to ‘the same measure and kind of punishment, indictable separately and as distinct crimes, when each shall have been committed- by different persons and at different times, they may, when committed by the same person and at the same time, be coupled in one count as constituting altogether one offense only. . In such cases the offender may be informed against as for one combined act in violation of the statute, and proof of either of the acts mentioned in the statute and set forth in the information will sustain a conviction.”
In Stedman v. State, 80 Fla. 547 (86 South. 428), the indictment alleged that the defendant unlawfully deserted his wife and unlawfully withheld from his wife and his minor child means of support. Referring to the desertion and to the withholding of support, the court said:
“While either the unlawful desertion or the unlawful withholding the means of support by a husband from his wife may be a distinct act from the desertion or withholding of the means of support by a father from his child or children, and each or either of such acts may be indictable and punishable as separate offenses under the statute, yet when such*473 desertion or withholding of means of support from the wife and child or children is by the same person at the same time, such conduct may, under the statute, be regarded as constituting ohe offense.”
In People v. Shotwell, 27 Cal. 394, the indictment consisted of two counts. By the first count the defendant was accused of having forged and counterfeited a check; and by the second count it was charged that at the same time and place the defendant attempted to pass and did alter and pass as true and genuine a forged check. The defendant contended that the indictment charged the commission of several distinct offenses. The statute upon which the indictment was based declared that the forging or counterfeiting of a check for the payment of money by any person with'the intent to damage or defraud any person or persons constituted the crime of forgery, and that the uttering, passing or attempting to pass as true and genuine a forged check constituted the crime of forgery. The criminal practice act provided that an indictment
“shall charge but one offense, but it may set forth that offense in different forms under different counts.”
The following excerpt explains the views of the court:
“If it appeared from the indictment that the check described in the second count was the same as that described in the first, . the objection that several offenses were charged in the indictment could not be maintained; for if the same person be guilty of making a forged or counterfeit Check,, and also of attempting to pass it, or of passing it (which involves the attempt), as true or genuine, with the intent to damage or defraud another, he might be indicted and tried for all these, connected and consecutive acts*474 as constituting one transaction, or lie might be indicted and convicted for each distinct crime of which he might be proved to be guilty. The doctrine on this subject is laid down in Wharton’s Criminal Law (141) as follows: ‘Where a statute makes two or more distinct acts, connected with the same transaction, indictable, each one of which may be considered, as representing a stage in the same offense, it has in many cases been ruled, they may be coupled in one count. Thus setting up a gaming table, it has been said, may be an entire offense; keeping a gaming table and inducing others to bet upon it, may also constitute a distinct offense; for either, unconnected with the other, an indictment will lie. Yet, when both are perpetrated by the same person, at the same time, they constitute but one offense, for which one count is sufficient, and for which but one penalty can be inflicted.’ ”
In State v. Souse, 55 Iowa, 466 (8 N. W. 307), the statute made it a crime by false pretenses to obtain property or to obtain the signature of another to a written instrument. The indictment contained two counts. One count charged that the defendant obtained property by false pretenses, and the other count accused the defendant of obtaining a signature. The court held that since both counts had reference to the same transaction the indictment charged but one offense, which might properly have been embraced in a single count. The court pertinently observed that:
“It will be understood that if the üvo counts had been based upon separate transactions both could not have been joined in one count, nor in one indictment.”
In 22 Cyc. 376 the editor says:
“An indictment or information must not in the same count charge the defendant with the commission of two or more distinct and substantive offenses, and ip case it does so it is bad for duplicity, if the offenses*475 are either inherently repugnant, or so distinct that they cannot be construed as different stages in one transaction. * # A substantive offense is one which is complete of itself and is not dependent upon another. ’ ’
In 1 Bishop’s New Criminal Procedure, Section 436, the author states:
“A statute often makes punishable the doing of one thing, or another, or another,' sometimes thus specifying a considerable number of things. Then, by proper and ordinary construction, a person who in one transaction does all, violates the statute but once, and incurs only one penalty. Yet he violates it equally by doing one of the things. Therefore the indictment on such a statute may allege, in a single count, that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction and where the statute has ‘or,’ and it will not be double, and it will be established at the trial by proof of any one of them.”
The following are a few of the great number of precedents which are to the same effect as the foregoing: State v. White, 48 Or. 416 (87 Pac. 137); State v. Waymire, 52 Or. 281 (97 Pac. 46, 132 Am. St. Rep. 699, 21 L. R. A. (N. S.) 56); State v. Atwood, 54 Or. 526 (102 Pac. 295, 104 Pac. 195, 21 Ann. Cas. 516); State v. Leonard, 73 Or. 451 (144 Pac. 113, 144 Pac. 681); State v. Molin, 99 Wash. 210; Irvin v. State, 52 Fla! 51 (41 South. 785, 10 Ann. Cas. 1003); Woodford v. People, 62 N. Y. 117 (20 Am. Rep. 464); Schulze v. State (Tex; Cr.), 56 S. W. 918; State v. Sutcliffe, 18 R. I. 53 (25 Atl. 654); People v. Johnson, 81 Mich. 573 (45 N. E. 1119); Jones v. State, 17 Ala. App. 283 (84 South. 627); Goddard v. State, 73 Neb. 739 (103 N. W. 443); Cook v. State, 16 Lea (Tenn.), 461 (1 S. W. 254); Paine v. State, 143 Tenn. 168 (226 S. W. 189); Gantling v. State, 40 Fla; 237 (23 South.
The act of joining the Industrial Workers of the World does not necessarily involve assembling with the society or with an assemblage of persons. A member of the organization may, if a “delegate,” alone and by himself initiate another person into
It is our understanding that the Industrial Workers of the World is an international organization, or movement, with headquarters at Chicago, and it is commonly known and designated as “the I. W. W.” It appears that, among other branches, there are two Portland branches, one of which is known as the Construction Workers Industrial Union No. 573, and the other as The Lumber Workers Industrial Union No. 500. Referring to these two branches, the defendant was asked: “Did you attend some of the meetings of those organizations?” And he answered, “Yes, sir.” However, the record does not disclose whether the meetings so attended by the defendant occurred before or after February 3, 1919. The defendant contended that the meeting which was broken up by the police on the night of November 11, 1919, at 128% Second Street was a meeting of the Council of Workers, Soldiers and Sailors. The state contended that the meeting was in reality an I. W. W. meeting. It is not necessary to detail ■ the circumstances which, according to the theory of the state, indicated that the assembly was an I. W. W. meeting. But it is sufficient to say that there was evidence which, if believed by the jury, was adequate to support a finding that it was an I. W. W. meeting.
Section 2105, Or. L., makes it a crime to deal, play or carry on a game of faro. Suppose that a game of faro is carried on by an owner and employees and that the game runs continuously from April 26th to November 11th with the same dealers, but each dealer taking his turn, and the players changing every few hours. Could it be said that if A played on April 26th and then on November 11th played again, the two acts constituted a single crime? A careful reading of the opinion in State v. Carr, 6 Or. 134, 135, makes it plain that that precedent is- authority for the conclusion that in the case which we have supposed the two acts of playing would constitute two separate offenses and not a single crime. The Code,
The state caused 59 exhibits to be marked for identification. Exhibit 42 was admitted as defendant’s exhibit 2-D. Exhibits 51 and 52 were merely marked for identification, but they were not. offered as evidence. Exhibits 58 and 59 were offered by the state but were rejected by the court. Exhibit 6, a receipt, was received as evidence for the state and was also marked as defendant’s exhibit 2-N. The remainder of the 59 exhibits were admitted as evidence for the
The defendant also testified that Fred Myers was the secretary of Construction Workers Industrial Union No. 573 of the I. W. W., and that Myers’ desk was the “west one of those two desks.” A reading table was maintained in the hall and near the defendant’s desk. Papers and books, pamphlets and other printed matter were kept in the hall “by the desk” of the defendant and were available to those who cared to read. The defendant stated that he had been elected chairman of the propaganda committee of the I. W. W. “a couple of times”; and he also stated that the I. W. W. “were given permission to put their book-case outside of the railing, as there wasn’t storeroom inside of the railing”; hnd in answer to a question, “Did you have any of their literature hanging on the wall?” The defendant said:
The state offered in evidence copies of certain publications which had been distributed by the authority of the I. W. W. in Spokane, Tacoma, and Seattle, Washington. This group includes exhibits 32, 34, 35, 36, 37, 38, 39, 40, 41, 42, 53 and 54 and are respectively entitled as follows: One Big Union, Pouget’s Sabotage, Smith’s Sabotage, When the Leaves Come Out, The I. W. W. Its History, Structure and Methods by Vincent St. John, Eleven Blind Leaders, Financial Statement, I. W. W. in the Lumber Industry, Stickers (not found among exhibits), Proletarian & Petit Bourgeoise, Sabotage, and I. W. W. Songs.
According to the testimony of Allen, he distributed in Seattle during the period of his membership copies of most of the publications included in this group of twelve exhibits, and, furthermore, all of the copies so distributed by him were obtained from I. W. W. officers in the I. W. W. hall where the literature was kept. According to the testimony of Josh, he disposed of copies of most of these same exhibits in Tacoma during the period of his membership, and the copies so disposed of by him were likewise obtained from I. W. W. officers at the I. W. W. hall in
“But where a person joins in this state a society of that character he could not escape liability by showing that it had never made Kansas a field of its propaganda..”
The defendant complains because of the denial of his petition for the return of his membership book which was taken from him at the police station, and the papers, publications, and things, comprising thirty-seven of the state’s exhibits which were taken from the hall. The exhibits, for the return of which the defendant petitioned, may be divided into four classes: (1) Things taken from the defendant’s person, and this includes the membership book; (2) things in Laundy’s desk and taken from it, and this includes the lease; (3) things in Myers’ desk and taken from it; and (4) things in open view in the hall; as, for example, the papers and pamphlets which hung on the wall or were on the reading-table.
The defendant relies upon Article IV of the amendments to the federal Constitution forbidding unreasonable searches and seizures, and upon that part of Article V of the same amendments which protects every person from being compelled to be a witness against himself. The defendant also relies upon Article I, Section 9, of our state Constitution, which, although not in the identical language, is in effect and meaning the same as Article IV of the federal Constitution; and, furthermore, he has invoked the protection of that portion of Article I, section 12, of the state Constitution, which declares that no person shall be compelled in any criminal prosecution to testify against himself.
“The first ten amendments to the federal Constitution contain no restrictions on the powers of the state, but were intended to operate solely on the federal government.”
See also Weeks v. United States, 232 U. S. 383 (Ann. Cas. 1915C, 1177, L. R. A. 1915B, 834, 58 L. Ed. 652, 34 Sup. Ct. Rep. 341). The inquiry is, Were the rights of the defendant violated when the policemen removed the thirty-seven exhibits from the hall, and when the membership card was taken from him at the police station? As a preliminary, it is appropriate to say, in the language used by the national Supreme Court in Weeks v. United States: “This protection” against unreasonable search and seizure guaranteed by our state Constitution “reaches all alike whether accused of crime or not, and the duty of giving to it force and effect is obligatory upon all intrusted”, with the enforcement of the laws.
“An arrest may be either, — (1) By a peace officer, under a warrant; (2) By a peace officer, without a warrant. ’ ’
Section 1763, Or. L., states:
“A peace officer may, without a warrant, arrest a person, — (1) For a crime committed or attempted in his presence; (2) When the person arrested has committed a felony, although not in his presence; (3) When a felony has in fact been committed, and he has reasonable' cause for believing the person arrested to have committed it.”
Section 3 of Chapter 12, Laws of 1919, declares that a person who does any of the acts prohibited by that section “is guilty of a felony.” The arrest was therefore made lawfully, and consequently the policemen had a right to do whatever they could have done if they had held a warrant of arrest: Smith v. State, 3 Ga. App. 326 (59 S. E. 934); Jenkins v. State 4 Ga. App. 859 (62 S. E. 574). See also State v. Hassan, 149 Iowa, 518, 524 (128 N. W. 960).
“if he finds on the prisoner’s person, or otherwise in his possession, either goods or money which he reasonably believes to be connected with the supposed crime, as its fruits, or as the instruments with which it was committed, or as supplying proofs relating to the transaction, he may take and hold them to be disposed of as the court directs.” 1 Bishop’s New Criminal Procedure, § 211.
If the arrest of a prisoner is lawful, a search of the person of the prisoner is lawful; and the officer making such lawful arrest and lawful search may take from the prisoner not only instruments of the crime but also such articles as may be of use as evidence on the trial: Weeks v. United States, 232 U. S. 383 (Ann. Cas. 19150, 1177, L. R. A. 1915B, 834, 58 L. Ed. 652, 34 Sup. Ct. Rep. 341); State v. Edwards, 51 W. Va. 220 (41 S. E. 429, 59 L. R. A. 465); 1 Wharton’s Criminal Procedure (10 ed.), § 97 et seq.; 2 R. C. L. 469; 5 C. J. 434; 35 Cyc. 1271. The search is justifiable as an incident to the lawful arrest: 2 R. C. L. 197; 5 C. J. 434. The taking of the membership book was lawful.
*501 “All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character. The reason of the law, in such cases, should prevail over its letter.”
“to voluntarily assemble within the meaning of the statute means to meet with and take part in the proceedings of an assemblage of persons with the purpose of aiding and abetting in carrying out the common design of said meeting.”
The defendant was not entitled to an instruction more favorable than the one given by the court.
“Belative to the question as to whether or not the defendant, at the time he is alleged to have become a member of this organization had knowledge of its alleged unlawful character or purposes as charged in the indictment, the court instructs you that before you can find against the defendant on this phase of the case by reason of his alleged membership in said organization, you must be satisfied from the evidence beyond a reasonable doubt that at the time of becoming a member in said organization, as charged herein, if you find that he did so become a member, he knew or had reasonable grounds of believing, or had a reasonable opportunity to learn, of the alleged unlawful purposes or character of said organization.”
The defendant was not entitled to more than was given him by the last quoted instruction; for by that instruction the court prevented the jury from adjudging the defendant guilty of that which he could not know: State v. Cox, 91 Or. 518 (179 Pac. 575).
The court properly refused to give defendant’s seventh and tenth requested instructions. The trial
The syndicalism statute is a constitutional and valid law, and therefore any person who violates it commits a crime and is punishable. If the defendant violated the syndicalism statute in either of the particulars alleged in the indictment he committed a crime for which he can be punished. The indictment is sufficient and complies with all of the requirements of the law. The' court did not receive incompetent evidence concerning the character of the I. W. W., nor concerning the act of joining the I. W. W., nor concerning the alleged act of assembling. The indictment alleges that at one time and at one place the defendant joined and assembled with the I. W. W. But the evidence relied upon by the state tended to show that the defendant joined the I. W. W. on April 26, 1919, and that on the following eleventh day of November he assembled with persons belonging to the I. W. W. The indictment charged one crime. But the defendant was tried for two crimes; one, the crime of joining on April 26th and, the other, the act of assembling on November 11th. The defendant was tried for two crimes on an indictment which charged only one crime. The law gave to the defendant the right to be tried for one crime at a time. He insisted upon that right; he was denied that right; and because of such denial the judgment must be reversed and a new trial granted. Reversed.
Rehearing
On Petition for Rehearing.
(206 Pac. 290.)
Rehearing Denied.
Mr. Walter E. Evans, District Attorney, Mr. W. E. Eallam, Deputy District Attorney, and Mr. E. F. Bernard, Deputy District Attorney, for the petition.
Mr. George F. Vandeveer and Mr. E. M. Esterly, contra.
— The plaintiff has petitioned for a rehearing. The judgment was reversed upon the ground that the defendant was tried for two separate crimes upon an indictment charging only one crime. All of the members of the court who concurred in the original opinion still adhere to that opinion, while Mr. Justice Bean adheres to his dissent; and, consequently, nothing more need be said concerning any of the points discussed in the original opinion, for the views of a majority of the court were there expressed at length.
The petitioner discusses only one point not noticed in the original opinion, and hence attention will be given to that one point only. It is contended that the defendant did not except to the ruling of the court denying the motion to require the plaintiff to elect, and, in support of this contention, the- plaintiff directs our attention to page 429 of the bill of exceptions where we read as follows:
*504 “Portland, Oregon, Tuesday, March 30, 1920.
“ 9:30 o ’clock a. m.
“Mr. Vandeveer: Your Honor, I wish the record to show at this time we renew our motion to require the state to elect upon which charge they rely.
“The Court: The motion will be denied.”
The recital just quoted was not everlooked when the original opinion was written. The printed brief filed in behalf of the plaintiff exhaustively and learnedly discusses many legal questions, and, indeed, the brief may be appropriately described as a legal treatise on some of the questions discussed. Although much space is given in the printed brief to most of the questions, including the question of duplicity, only a single paragraph is devoted to the contention now under investigation, and yet that single paragraph was amply sufficient to attract attention to the record. Upon examining the record we discovered that the quoted recital did not stand alone, but that upon the contrary the question had been previously presented to the trial court, and that upon each prior occasion an exception was saved to the ruling of the court denying the motion; and so, after having first examined the record, we were then of the opinion just as we are now of the opinion, that the defendant had not waived his right on appeal to review the ruling of the trial court denying the motion to require the plaintiff to elect.
No particular form is required for expressing an exception, although the usual form is to say: “I except,” or “I save an exception,” or “exception,” or the like. Since one of the reasons for an exception is to give notice that the objector does not acquiesce in the ruling, any language which gives notice that the objector protests against the ruling and does not acquiesce in it, ought to be sufficient: Hayes v. Clifford, 42 Or. 568 (72 Pac. 1); 2 R. C. L. 94. In passing, it is not out of place to direct attention to cases where it has been held that the nonacquieseence
In addition to serving as notice of nonacquiescence, an exception, in many jurisdictions, performs another function, although it is possible that this other function is not now so important in this jurisdiction as it was before the amendment of certain sections of the Code regulating appeals. Stated broadly an appeal in an action at law, as well as an appeal in a criminal action, presents to the Supreme Court nothing but the judgment-roll, or a part of- it. Upon an appeal in a criminal action just as upon an appeal in a civil action the judgment or order appealed from can only be reviewed as to questions of law appearing upon
“the bill of exceptions may consist of a transcript of the whole testimony and all of the proceedings had at the trial * * .” Chapter 332, L. 1913, amending Section 171, Or. L., Malloy v. Marshall-Wells Hardware Co., 90 Or. 303, 318 (173 Pac. 267, 175 Pac. 659, 176 Pac. 589).
Stated in general terms, it may be said that upon an appeal from a judgment rendered either in a civil or criminal action the judgment-roll is the record which is presented to the appellate court. The Code commands the clerk to prepare a judgment-roll when a civil or criminal action terminates in a judgment. Among the documents to be included in a judgment-roll is a bill of exceptions, if there be one: Sections 208 and 1582, Or. L. Most of the rulings made during the
“No exception need be taken or allowed to any decision upon a matter of law, when the same is entered in the journal, or made wholly upon matters in writing and on file in the court”;
because in the enumerated cases an exception was not necessary for the reason that such “decision”
In the instant case the bill of exceptions consists “of a transcript of the whole testimony and all of the proceedings had at the trial,” and this bill of exceptions is a part of the “transcript” within the meaning which must now be given to the word “transcript” in Sections 556 and 1625, Or. L.
What can the appellate court review? If the appeal be from a judgment in an action at law, Section 556, Or. L., answers the question by declaring that the Supreme Court can review only “questions of law appearing upon the transcript.” If the appeal be from a judgment in a criminal action, Section 1625, Or. L., gives the same answer by stating that the Supreme Court can review only “questions of law appearing upon the transcript.” This is the only statutory declaration upon the subject; it is the only prohibition imposed by the statute; and if there be any additional prohibitions or restrictions they are only such as are prescribed by judicial decisions. In this jurisdiction, as in most jurisdictions, the general rule established by court decisions is that only such questions of law as are presented upon an objection, an adverse ruling, and an exception will be reviewed upon an appeal: State v. Megorden, 49 Or. 259, 269 (88 Pac. 306, 14 Ann. Cas. 130); Morgan v. Johns, 84 Or. 557 (165 Pac. 369); Bagley Co. v. International Harvester Co., 99 Or. 519 (195 Pac. 348); but this rule, like many rules, has its exceptions. One exception to this general rule, expressly recognized by the Code, is found where the question of law is - one that is involved in a ruling which properly appears in the judgment-roll even though there be no bill of exceptions. In the absence
“The court reserves the right in furtherance of justice to notice on its own initiative a plain error of law apparent on the face of the record.” 100 Or. 750 (173 Pac. x).
The recital appearing on page 429 of the bill of exceptions and upon which the plaintiff relies cannot be understood unless some of the occurrences preceding it are related. The defendant demurred to the indictment on the ground of duplicity. The court overruled the demurrer and we approved that ruling. When the cause was called for trial the defendant moved that the plaintiff be required to return the
“Now before the trial of this case starts, your Honor, I want to move for an order requiring the district attorney to elect upon which of the various charges contained in this indictment he will proceed to trial. We have raised the question of duplicity by demurrer, which was overruled and an exception allowed, but it is common practice to present the matter in this way and I feel that our petition should be granted. They have charged here that the defendant became a member of a certain organization. That is a definite act constituting a definite violation of Section 3 of the statute. They have charged again that he did assemble with certain people, not alleging that he was then a member. That is an offense which a man whether he was a member or not could commit. But there is a certain other definite act charged against him constituting another definite violation of the law if proved, they have charged a third one in this indictment as I recall it,— ‘That he did help to organize.’ Now there is a third act, — Help to organize the I. W. W. Which of these things are we here to answer? Now we object to being shot at as in police court with a sawed-off shotgun on the theory that something may hit us. The statute of this state says that a man may be proceeded against on one charge at a time and we want to know what the charge is that we are here to answer and not be compelled to answer all three at once.’-’
After the matter had been argued “at considerable length” the court ruled as follows:
“I don’t think the state is compelled to elect. If the question was raised on demurrer if your position was right the court should have passed on that. The motion to elect will be denied.”
The attorney for the defendant said “an exception”; and the court replied, “an exception is
“There are three charges contained in this indictment, and in event my motion for a directed verdict is denied, I will want to renew my motion and require the state to elect upon which of these it will go to the jury.”
Upon being informed that the argument would consume “the afternoon” the court excused the jury “until to-morrow morning at 9:30.” The matter was argued “at length” by the attorneys. The judge expressed his opinion at some length and concluded with the statement:
“I think that phase of the indictment [help to organize] should be eliminated from the consideration of the jury, but on the two questions of membership and voluntarily assemble with an organization it should go to the jury.”
There was further argument. The court denied the motion for a directed verdict. The attorney for the defendant requested the allowance and the court allowed an exception. Thereupon court adjourned.
In substance the record plainly shows that the attorney for the defendant in effect said to the court:
“We object to the submission of any questions at all to the jury; but if the court decides to submit the case to the jury we insist that only one question, to be selected by the plaintiff, be submitted. ’ ’
When court convened the following day, the defendant again and for the second time renewed his motion to require the plaintiff to elect, as explained by the recital quoted from page 429 of the bill of exceptions. Although it may be that the motion was renewed for the second time out of an excess of caution, nevertheless it was not necessary to do so, for the defendant had on the previous day made a record sufficient to present the question on appeal. Moreover, the very language attributed to the attorney for the defendant on page 429 of the bill of exceptions carries with it an assumption upon the part of the attorney for the defendant that the court would deny the motion and at the same time the language carries with it the implication of non-acquiescence in the anticipated ruling. The petition for a rehearing is denied. Rehearing Denied.