State v. Prendergast

164 P. 1178 | Or. | 1917

Opinion by

Mr. Chief Justice McBride.

The facts recited in the indictment upon which the defendant was convicted indicate that he was gmlty of the use of the United States mails with intent to defraud; and while this is an offense against the laws of the United States and is declared to be a felony it is not so under' the laws of Oregon. In Ex parte Biggs, 52 Or. 433 (97 Pac. 713), it was held that the words “felony” and “misdemeanor” were used in their statutory sense, and that there being no such offense as that of which the defendant was convicted in the federal court an allegation of such trial and conviction was, in the absence of a specific and substantive charge that he actually committed the offense of which he was convicted, insufficient to sustain a charge of violation of Section 1092, subd. 1, L. O. L. The complaint in the matter at bar does not charge the defendant with defrauding or attempting to defraud any one by an unlawful use of the mails, but merely recites that he was so charged in an indictment found in the federal courts. If the same accusation made in the federal court had been made in the complaint in the matter at bar, the record of defendant’s conviction would probably be conclusive evideuce of bis violation of bis duty as an attorney, but there would still be open for inquiry tbe question of tbe extent of bis guilt as a means of determining tbe nature of tbe penalty to be imposed. Sucb seems to be tbe line of.tbe reasoning adopted by Chief Justice Bean in Ex parte Biggs, 52 Or. 433 (97 Pac. 713), which we follow in this case.

Tbe demurrer will be sustained and tbe relator will have 30 days within which to file an amended complaint. Demurrer Sustained. .