State v. Rosenberg

142 P. 624 | Or. | 1914

Mr. Justice Eakin

delivered the opinion of the court.

Section 1701, L. O. L., provides:

“If a defendant indicted for a crime, whose trial has not been postponed upon his application or by his consent, be not brought to trial at the next term of the court in which the indictment is triable, after it is found, the court must order the indictment to be dismissed, unless good cause to the contrary be shown. ’ ’

And by Section 1606, L. O. L., we find:

“An appeal to the Supreme Court may be taken by defendant from * * an order refusing to dismiss the indictment as provided for in Section 1601.”

These sections put no duty upon defendant in regard to having the indictment brought to trial at the February, 1913, term. It was the duty of the court to dismiss the indictment unless good cause was shown for a continuance. The June term was also one at which the case was triable, and it was not postponed for cause shown. Therefore, in December, 1913, defendant was entitled to have the indictment dismissed, and the court erred in denying this motion.

The order is reversed and the indictment dismissed.

Reversed.

Mr. Chief Justice McBride, Mr. Justice Bean and Mr. Justice McNary concur.