*1 17; January Motion dismissing to dismiss allowed order 7; argued 23;May vacated March on merits 6; rehearing June affirmed denied 6, 1939 July STATE ROSSER et al.
(86 (2d) 441, (2d) 295) (2d) 87 P. P. 91 P.
In Banc.
Charles W. Robison and B. Shaw, Leland both of George Portland, F. of Vanderveer, Seattle, Wash., appellant. Spaulding, Attorney, Bruce District of Dallas, Ralph Moody, Hayter, F. of Salem, and Oscar of Dallas, for the State.
RAND, J. This is a motion to dismiss judgment from a of conviction in a criminal case. The facts are as follows: The defendant, Albert Earl county Bosser, was convicted in Polk of the crime of August arson and on 12, 1938, was sentenced to im- prisonment Oregon penitentiary state for a term years. August of 12 On 23, 1938,he filed in the office county county of the clerk of said a notice of proof duly service indorsed thereon attorney county district clerk. Oregon applies 13-1220,
Section Code 1930, which appeals provides in criminal cases, that: “Upon appeal being taken, the clerk of the court days notice of must filed, where the within 30 thereafter, or such further time as such or the court, judge may copy allow, thereof transmit a certified any, cause, if the notice of certificate judgment supreme court.” clerk roll to the copy transcript or
No certified *6 foregoing mentioned the statute were documents thirty days transmitted this court within allowed by any application nor an extension of law, was for by filing transcript or allowed time for the of the made contrary, judge an affi- the court or thereof. theOn that a davit, defendant, filed on behalf of the shows transcript had ordered and that of the evidence been exceptions prepared a bill of was to be and settled transcript before the was to be transmitted and filed Notwithstanding in this court. this, the defendant con- duty thаt, tends under the statute, it was the sole of the clerk of the trial court, not of the defendant, to papers transmit these to the clerk of this court.
Upon
question,
in State ex rel. v. Estes, 34 Or.
196, 210,
“Such does not relieve necessity showing from the that the failure transcript clerk prescribed to file the within the time ’’ by imputable law was not to him. quoted approval This rule was State Wil liams, 55 143, 145, 105 Or. P. 716, where the court said: “* * * Tested this rule, it will be seen that days filing if, within five from the notice of papers in this file cause in the office of the clerk of the trial court had been examined, it would have original exceptions, been ascertained that the which bill of up, have been sent was to had not been transmit- upon discovery ted, and such an order could un- doubtedly extending been secured, have the time in transcript.” which to file 300
Again, in State v. Dickerson, 390, P. 392, 106 Or. a decision written Mr. Justice McBride, court said: appear “It does not that the clerk even was re-
quested
up
transcript
to send
or that his attention
any way,
was directed
it in
nor
was
effort made
days
filing
within the five
to have
the time
transcript extended. The sole excuse offered is that
waiting
exceptions
counsel
tled. The
was
to have
the bill
set-
very
unsigned
exceptions
fact that an
bill of
among
papers
prob-
on file in his
would
office,
ably
clerk
induce the
to believe
’’
yet ready
for transmission to this court.
applied
saying:
The court then
rule,
fairly
“This case is
within the rule announced
this court
v. Williams,
in State
Referring again duty to this same section and to the respect pa- clerk in transmission of these *7 pers, Keeney, this in State v. 81 court, Or. 159 P. 478, 1165,said: frequently that, this section we have held “Under transcript file the
unless the failure to
prescribed
within the time
by
negligence
law was shown to bе due
the
’’
dismissed:
the
the
would be
clerk,
supra,
citing
support
Williams,
thereof State v.
in
supra,
Douglas,
20,
v.
56
Dickerson,
State
Or.
v.
State
P.
Webb,
235,
v.
59 Or.
117
272.
957,
P.
State
107
Keeney,
quoted
quotation
v.
from
above
State
The
applied
approval
Fehl,
v.
Again, Keeney, in a later decision in State v. 82 Or. where the 701, P. defendant filed 400, 161 another tran predicated script on the first notice of
301 stipulation right that the under a claimed the to do so days’ appellant time within additional should have ten excep- transcript a hill of and tender which to file his through spealdng Mr. Justice court, tions, Harris, said:
“* * * though it assumed that Even he by filing transcript time for could be extended stipulation parties court, an order of of the without position to claim is in no nevertheless the defendant stipulation, reason that for the benefit from the days than 10 filed until more was not exceptions proposed March 21. The bill after April this However, 1916. 5, not even tendered until Co., court has held ih Davidson v. Columbia Timber 49 approval 441, cited with in State v. 577, Or. 91 P. 56 Or. parties Douglas, 20, P. that the cannot 957, 107 stipulation an order effect an extension without delay fault of clerk, court. was not the The Morgan, 132 P. 314, 316, and as said in State v. 957, 65 Or. 958: “ expiration of the time allowed ‘After the required, filing copies documents for statute authority this court has court nor neither Circuit pro extending time, an order nunc tunc to make by granting right change a different the statute or to provided the statute.’ as than ap- except to dismiss the alternative “There is no peal; and it so ordered.” see Hill v. effect, Lewis, same 239, 170,
To the Or. P. 316. Hay
Again, (2d) v. Yokell, 147 Or. 148, P. speaking through court, Mr. 578, Justice Bailey, said: Kelley Pike, “This 17 Or. 20 P. court, provision calling
after attention of the above *8 authorizing extend, the court to order, statute transscript, pointing to file the time within which 303 requires
out that the statute such order to be made transcript’, ‘within the time allowed to file the said: “ provision, ‘In view of the latter this court would hardly authority undertake to hold that it had after expiration specified enlarge the the time for of the time there
filing transcript. A court can not jurisdiction create for itself; it must be conferred pointed whereby may law, and the mode out it ac- be quired substantially complied must be with, order right to obtain enlarge it. would We have as much the time for the service of the notice of as we enlarge filing would have to the. time for the tran- script specified the time after in the code had ex- ” extra-judicial pired. It be would in either case.’ applies appeals in The same rule civil cases. Oregon governing ap- Section 7-507, Code 1930, such peals, provides that: “Upon appeal being perfected appellant thirty days
shall, within thereafter, file with the clerk appellate transcript, court a etc.” uniformly this section,
Under has been held that, requirement where this of the statute has not been com plied jurisdiction this court with, has no to review the judgment appealed or order from and that the jurisdiction. Kelley must be dismissed lack of See supra; McCarty Pike, v. v. Wintler, 17 Or. 21 P. 391, Wagon Landingham, Nestucca Road v. 195; Co. 24 Or. P. 439, 983; 33 Connor v. Clark, 30 Or. P. 382, 48 364; and Davidson v. Columbia Co., Timber Or. 91 P. Sphier, In 441. Loan Western Co. 677, 184 Or. P. speaking through court, Mr. Chief Justice McBride, said: filing supreme of a
“The court law, within the time allowed or within extension
303 has no jurisdictional this court time, of that is " respect. power in that default to excuse a rule contends the defendant However, the instant applicable in not have referred is which we expiration 30- after the that, case for the reason days law for sixty day period allowed but within and filed appeal, served taking the defendant of an appeal and caused a notice of second thirty within this court to the clerk of be transmitted days thereafter. appeal in this state that where an
It is well settled perfected, right to take a second has once been judgment appeal from a or order of the or further an In circuit court is at end. v. 16 Schmeer, Schmeer P. it held that: 243, 17 864, Or. perfects party appeal a an and then aban- “When appeal power right it, exhausted,
dons the the second time.” his is over subject functus and cannot officio, is be exercised City effect, To this see Columbia Land Co. v. Ruhl, 134 P. and cases there and Mc 246, 1035, cited, 70 Or. Nayberger, Kinney 295 P. 203, 474, v. 138 Or. and cases In Mr. cited, cited. the case last Chief Justice Bean said: party “It is settled that when abandons an well allowing transcript may appeal by in which the the time having transcript, expire filed such filed without
be (citing as be dismissed abandoned: will perfected, authorities). until an Nevertheless, may and a new taken: Van abandoned be Holladay 150, 40 P. v. Dammeier, 89; 27 Or. Auken v. 483.” Elliott, 7 Or. has been that where no taken,
The rule may subsequent appeal be taken from the or second 304 judgment only applies
same or decree, where perfected application has been no where, has be cause of a defect in the at first notice tempted jurisdiction appeal was insufficient to confer upon appellate attempted court. Illustrations appeals perfected, appeals second al where were lowable, are to be found in two cases last cited supra, Schmeer, Tomlinson, Schmeer Fisher v. 40 P. P. 390, Or. and Rohrbacher v. Strain, *10 176 P. P. 1,Or. 583. 990, 186 that first The defendant contends notice of appeal served and filed in this case sowas defective bring exception general to within to as case just have rule to which we referred. This contention, we think, cannot be sustained. ap- The first notice of peal, omitting the title of the court and cause in which judgment reads rendered, as follows: Oregon, “TO THE STATE OF I. TO H. VAN Attorney Oregon, WINKLE, General for the State of Attorney and TO BRUCE SPAULDING, District for County, Oregon, Polk and OSCAR HAYTER, Assist- Attorney, ant District C. GRAVES, TO S. Clerk County, Oregon: Polk of State of please YOU AND EACH OF YOU will take notice hereby that the defendant, Rosser, Albert Earl does Supreme Oregon unto the of Court the State of judgment from that certain of conviction and sen- years Oregon Penitentiary tence of twelve State imposed and the whole thereon, and each thereof, every part made and entered in the thereof, above-en-' >-day August, and cause on the titled court 1938. County, Oregon, day Dated Polk at this 23rd August, 1938. Robison,
C. W- attorneys One defendant.” and the thereon which From this indorsements we copied, it that will he seen the first notice of have conformity appeal, signed with section 13-1213,was attorneys of the defendant’s and notified the one county attorney and the who clerk, district were only necessary parties that notified, be the defendant appealed judgment from conviction and the sen- years Oregon Penitentiary tence of twelve State made and entered in the above entitled court and cause the-day August on and, from the indorsements appears thereon, the notice of was served attorney county upon required clerk, the district as Oregon section 13-1209 and 13-1210, section Code county then 1930, and was filed in the office of the August 23, 1938, clerk within the time allowed appeal. law take
The defendant contends because that, the date of entry only year being left blank, the month and perfected stated, was never and, therefore, right appeal. that he had a file second notice of The second notice of upon which was served parties the same and filed in the same court, was an *11 copy appeal exact of the first notice of with the sole exception that the date which had been left blank in appeal the namely: first notice of was inserted, “the day August, 12th of 1938”. Keeney,
As said this court in v. State 81 Or. 478, 159P. 1165: * “* * being In criminal cases, there no under- taking required, appeal perfected costs becomes
by serving filing appeal”. with the clerk a notice of appeal perfected Hence, this was unless the failure entry in the first notice to include the date of of the judgment appealed from is fatal and rendered the appeal void. question, upon
Upon Rohr the defendant relies only descrip supra. In Strain, that ease the bacher appeal judgment appealed notice of of the tion in the # * * plaintiff “appeal's from the from that was judgment and entered in the above-en and decree made June, 1918, of and cause on the 17th court titled judg in fact no there was thereof”, whole when day entered that but one was decree entered on ment or day appeal notice of was and, a different since the identify judgment, the notice first insufficient to rightfully However, dismissed. a sec was case the time ond was taken within and a decision was rendered on the allowed law upon ground merits that the first notice containing and invalid because not was insufficient dеscription judgment appealed from as such a identify judgment from which would sought. ap case, however,
In the instant the notice of complete peal contains statement the nature parties, the title of the court and the action, sentence pronounced, by judgment appealed may which the from entry for that and, reason, be identified the date of its necessary to be stated therein. This conforms ruling Hanlon, of this court State v. 32 Or. P. where it was held that a notice of parties, which states the action, nature pronounced, of the court and the title sentence is suf jurisdiction, although ficient to confer desig it fails to judgment nate the time when said was rendered.
307 56 Or. Richelderfer, in Moon v. As said P. 178: aban- it cannot be is perfected,
“When an appeal The right taken. and a second appeal doned thereafter is not filed within if is lost This is thereof. or an extension time jurisdictional. lawby allowed (Citing authorities).” of this state as shown settled law Under has no alterna this court' to, referred above decisions ordered. and is so to dismiss except tive in this opinion. did not J., participate Lusk, aside, dismissing appeal and reinstated Former set order 7, 1939 March Appeal Reinstating On Order 783) (87 (2d) P.
In Banc. Polk County. from Circuit Court,
Appeal Judge. G-. Arlie Walker, set dismissing aside,
Former order ap- reinstated. peal Vanderveer, F.
George Seattle, Wash., B. Robison, Shaw, Leland George Mowry, Charles W. Mowry, and John Portland, all of appellant. Spaulding, Bruce District Attorney, Dallas, Moody, Bayter, Oscar Salem, Ralph Dallas, for the State. court on
BAILEY, January 17, J. This 1939, by held that the first opinion, written attempted Albert Earl defendant, taken by to be Rosser, by *13 serving filing appeal August notice of on 23,1938, by appellant had been abandoned failure of the to file transcript in this court a of the record in thе case within days August after 23 or within extention of days; granted during time by said 30 such failure right appeal the defendant’s supreme to take an to the court had been exhausted and terminated; and that the appeal, second notice of which was served and filed October 4, 1938,-was without force or effect. questioned ruling by of that
The correctness appellant, petition rehearing filed a who has for of the respondent, Oregon, motion of the State of to dismiss Accompanying appeal. petition his is a motion appellant appeal for the dismissal of his first with- prejudice permitting rely out order him to upon appeal. and stand his second notice of In petition his brief filed with the said and mo- presses upon tion the defendant us that he should not deprived right be of the to have case his determined upon its merits, view of the fact that the second notice days was served and filed within 60 after the entry judgment statutory period in which he —the could take an that the entire —and proceedings together of the and evidence, with exhibits, supreme has been filed in the court within the time allowed if law the second be determined importance be valid. In view question of the of this given prior careful consideration has been ruling to our arguments and to additional advanced and authori- appellant submitted respondent. ties and appropriate briefly here It is to review history proceedings had in the circuit court relative to appeal. Eosser was convicted county, in Polk Ore- gon, August arson, 12,1938, of the crime of and on Oregon imprisonment peni- sentenced to state tentiary years. August for a term 12 Thereafter, 23,1938, he served and filed the clerk of the circuit judgment сourt a notice of from the said supreme day, judge signed court. On the the trial same opinion a certificate to the effect that his there was probable stay cause for the and ordered pending appeal. execution such day given, that notice
On one of attorneys for the defendant ordered from the offi- reporter complete transcript cial court of the evidence, *14 testimony proceedings and in the said cause. This order given presence attorney was of the district and attorney county. assistant district of Polk At the time transcript attorney the was ordered, the for the defend- attorneys representing ant and Oregon the the state of proceeding by in this reporter were advised the court impossible that it prepare would be for her to the tran- script day before the first of October and that she would probably completed not be able to have it before the fifteenth of that month. Later, on October 4,1938, the by attorney defendant his served attorney on the district and filed the clerk a motion granting for an order including day and him to the fifteenth of November, 1938, within which serve and excep- file his bill of extending the time transcript tions, to file his supreme including the court to and twenty-fifth the day month. of that Attached to this motion was the of one of the attorneys affidavit setting defendant’s reporter fact that the forth the court had been unable transcript prepare testimony probably and would completed the same not have before November 1, and receiving transcript after attorney the said 310 days require prepare the bill of
would in which to by exceptions. An order made the circuit court on was granting resist- Octobеr 4 the said without motion, attorneys. made ance state’s 1938, also served The defendant on October county the clerk Polk another notice of filed with judgment sentencing appeal from the which notice him, identical with the former notice of served was exception August 1938, with the that the and filed August appeal did not the date in first notice of state judgment entered, which date was on which procured notice. There was also set forth in the second judge on 4 another from the trial October certificate of probable cause.
Immediately transcript upon completing testi- mony, reporter 26,1938, the court sent October carry- express attorney Portland, defendant’s to the being ing charge charge reporter’s latter collect, days paid This amount was within few $694.25. counsel November 14, 1938, defendant’s and on attorney upon defendant’s counsel served the district exceptions, proposed containing pages. bill of testimony Attached thereto con- sisting pages. following day of 925 the circuit On attorneys granting repre- entered an order court *15 senting Oregon, request, the state of at their until object day that month which to of thirtieth exceptions, extending and proposed bill of the time exceptions of the bill should be filed in which within including to and December 5, court 1938, circuit granting including to the defendant to and further and transcript file which to his 15,1938, in the December objections were supreme No made on behalf court. of extensions of these of to the granting the State Oregon defendant. of time under, 1938, 2, December of date
Thereafter, changes numerous exceptions, bill of proposed of the attor- suggestion made therein at the apparently and allowed was settled state, for the neys approved, case, including The entire record in the the trial judge. testimony exhibits, different notices of 9, filed in court the defendant December was this 23, November the state thereto, however, 1938. Prior on on defendant, mail on for the attorneys served filed in a motion to dismiss the court, November 25 this “for the reason that no transcript defendant’s appeal filed in court supreme court] this [the said cause was from the of the days of 30 date a period either within cause or within any in said of notice filing days within 30 granted of time from extension notice of appeal.” of said filing date motion, his defendant, petition The support first for the time to case of our directs attention 110 P. In that case the Tucker, 57 Or. 392. State 59, convicted of crime of participating defendant was served notice of certifi- appeal, procured in a riot. He admitted bail. cause and was Notice cate probable 15, November but the tran- 1909, of appeal filed court within the transmitted script and, court, in the of the statutory language period, was “therefore void”. As appeal” “his attempted the defendant had five existed, after days then law notice of within which to file filing court. The defendant supreme dismiss “to the appeal moved without July desire to take a indicating his second prejudice, appeal.” *16 January
On 11, the defendant Tucker his 1910, attorneys filed with the clerk of the circuit court for county, Wallowa wherein the ease had been a tried, motion for an extension of time within which to file a exceptions February bill of until The 21,1910. affidavit support in of transcript stated motion that the testimony attorneys was not received defendant’s until Decembеr and due to that the fact that help the affiant had no office he had been unable to prepare exceptions a bill in said cause; that he was engaged county also in circuit court for Umatilla busy prepare was too his office to the bill of busy exceptions; that he be would court for some transcript time to come. on was filed in The supreme May 7,1910. court support of the dismiss the In the brief motion to failure in the Tucker case was stated that the days transcript file the within five after the notice oversight been had filed due to attorneys appellant, part of for “due to fact filing for a that further had been obtained bill of time exceptions, thought filing and it was that time for thereby transcript herein extended”; the' attorneys desired to assure the court that the good purpose faith had been taken in and not for delay; and that the effort of the defendant to take a good pur- was “in faith second and not for the delay”. pose of any does not contain motion record or order
The filing allowing of time an extension for bill exceptions the motion than other hereinbefore men- appear have been There does further tioned. preparing, serving filing of time extension exceptions. bill of filed until The was not expiration two and one-half after the months *17 granted by filing extension of the circuit court for time exceptions, the bill of and five and one-half months day transcript. after the last to file the At the time of year conviction, Tucker’s a defendant had one within appeal supreme which to from the circuit court to the court. opinion granting
In the the defendant’s motion, was said that it had been held in this court that the appeаl “dismissal of an in civil cases is a final disposition appeal of the case, that a second can citing not thereafter be taken”, numerous cases. The pointed following then court out the distinction between civil criminal cases:
“We have also held that it is incumbent on the diligence defendant in a criminal case to use to see that his is filed in this court within the time re- quired by upon law, and that his failure to show such diligence appeal will be his dismissed. The method taking appeals provided by being the criminal code complete within itself, the decisions in civil here- cases, light subject, tofore cited, throw no on this and, as the question is a new one in this we shall court, decide it in light having of decisions of other states statutes similar to our own. great weight authority “We find is to the statutory provision effect in the absence of some that, contrary, preju dismissal of an without dice a is not a bar to second taken within the time by purpose. ap for that allowed statute rule This plied qualification with the that the first has ineffective for some technical reason, become either in taking through the method of file the it or an honest failure to appellate transcript in the court within the time Ency. required [Pr.] 2 law. Pl. & Pl. Evans v. 357; (10 Sup. S. Bank, 493; State 134 U. 330 Ct. 33 L. Ed. 314
917); (10 519); State 104 N. 900 S. E. Chastain, v. C. Hoyt Roberts and v. 1 T. v. Tucker, 179; Wash. Ward Kinner Butler Hollins, Ark. 29. Dodds, 14 Md. & v. 158; practice seems to be the in most of the This statutory jurisdictions, excepting provi such have as prohibiting expressly implication sions either or appeal. second “The and the allowed, therefore, motion will be prejudice.” dismissed without In Evans v. National 134 U. S. Bank, State approval in L. Ed. S. Ct. cited with 917, 10 State allowing supra, Mrs. an order was entered Tucker, supreme and her husband to court Evans day States, аnd on the same a bond was United approved “Nothing the court. further filed *18 having record not been done, the filed this was during succeeding appeal term, court the the became duly prosecuted.” avail, no because not Thereafter again petitioned Mr. and Mrs. Evans the circuit court supreme to allow an from the decree to the court. given supreme and the record filed in Bond was was the during thereupon A the term. motion was court made grounds appeal “upon to dismiss that it could granted, because the court had not be exhausted its appeal, .power of the first and because, the allowance so, the second if this were not was not taken years entry two from the of the decree.” In within upon passing this the court motion said: grounds may “As these to the first of it be re- elapsed the term at which marked, that when the first filing returnable, without the of the record, spent open force, had and the matter was its taking of a second as it would have been appellee if had docketed the cause and had it dis- missed.”
n .The taken had been that the appeal then stated court dismiss within and refused years, two required second appeal. Ark. another Dodds, v. 29, is & Butler Kinner Tucker, supra. State authority as case given we direct to that case particularly of referring Instead court later decision of supreme to a attention Co., Loan Trust v. Arkansas & in Robinson Arkansas wherein the court stated: 81 S. 72 Ark. W. require of this state appeals
“The statutes after the decree or year one court to be taken within What is an from was rendered. judgment appealed used in law mat- word, accurately when ‘The appeal? or of an equity removal of a suit ters, means the to a court.’ superior at from an inferior law, action 15. Procedure, Elliott on When Appellate § of the record is an authenticated granted copy is thereby or action is court, filed in the the suit superior the record neces- removed. is filing copy The from which the appellate because it is the source sary, in the case tribunal its of the facts knowledge obtains it is duty pro- and of which its questions upon court’s filed, appellate nounce When is judgment. is and the jurisdiction subject-matter complete, removed.” cause there a motion to dismiss second
In that case court that motion the called ruling upon In appeal. decisions and early quoted to one of its attention therein as follows: from the opinion approval *19 “A has taken an without appeal super- who party failed to it within the time sedeas, perfect required at within law, take another time may appeal In which are allowed. such cases appeals period during to have better, necessary, practice, it is the but not a docketed and dismissed before taking the first appeal appeal.” second quotes
The court then from two other former de supra, one of cisions, them Kinner & Butler v. Dodds, to this effect: party appeal supersedeas, “A taken who has an with prosecute appeal
and and dismiss it, failed to must here, docket appeal.” it, he can a before take second early It thus will be seen that the Arkansas deci- appeals super- sions amade distinction between with appeals supersedeas, sedeas and without with reference necessity taking granting an order the dis- appeal taking missal aof first before a In second. passing upon might glance appear what at first to abe diversity rulings in former decisions, the court say: goes the case now under review why good necessary “We see no reason it should be appeal supersedeas to can be is dismiss with before another granted prescribed in the time law, when it necessary appeal super- to dismiss an without sedeas before another can be taken, unless, in the first necessary appellee case, is order to enable the against pursue appeal his remedies the sureties on the practice bond. it is the better While to dismiss supersedeas with before another is taken, by dismissing same result can be obtained the first granted. appellee In after the second case the can enforce his remedies on bond. It would ceremony super- a to docket the be needless appeal, here, and dismiss it and the sedeas second when appeals pending, then are take the two third object accomplished by dismissing can be when the same ’’ first. State, 146 Ala.
In Porter So. 421, the degree was convicted of murder in the defendant second attempted first his dismissed because judgment the failure show the Thereupon circuit court. second *20 317 sought appeal taken and it was to dismiss that on the ground appeal “that the dismissal of the was conclu- against right appellant prosecute sive to appeal denying second In this court.” the motion to dismiss, the court said:
“While there are some authorities to the effect that when party an has been dismissed the can not appeal, take a second in most of those cases the facts appellant voluntarily were that the himself dismissed appeal. subscribing his Without to the correctness of great those cases, even to that extent, we think that the weight authority, which we think, also, is conso- analogies nance propo- with the of the law, sustains the sition that passed where the merits of the case are not upon, and the case was dismissed on account of the requirement, failure party may of some technical prosecute a prescribed second within the time citing law”: numerous authorities. Groendyke Musgrave, In the case of 123Iowa question N. W. involved as was, stated “May appellant voluntarily the court: an dismiss an perfected, once and thereafter, and within six judgment sought months from the date of the to be re- appeal?” stating a viewed, take second After that the question court answered that in the affirmative, opinion thus continues: 1‘ good denying There would seem to be no reason for right, practice
such and, as we shall see, finds much support in decisions of the courts. The statute allows party appeal. Experience a six to take an has months lawyers wholly exempt demonstrated that liability are from having attempted mistakes, and if, to effect oversight an counsel find that some error or likely hearing upon their is to be lost without statutory yet its merits, and limitation has not run, why they advantage should not be allowed to take poenitentiae this locus to dismiss the ineffectual begin By analogy right freely anew? with the original renew the action to dismiss exercised entirely practice would, such same, seem legitimate.” from 14 different states court then cites cases The *21 including supreme in court, States and the United supra, Bank, v. National list of authorities Evans State Many permit support a of the cases in of its decision. appeal. prior appeal to the dismissal of the first second attempt was 155, In 5 an Gallardo, Martinez v. Cal. ground appeal that one made dismiss a on the second give already appeal for failure to had been dismissed right proper appellant had lost his bond, a and that question appeal. deciding the court to a second In said: disposed right in lost,
“We are not to consider the consequence or clerical of some mere technical mistake. judgment final rendered in this “There has been no judgment, ought an to be court, and until such period entertained at time within the allowed law. can result from such a as rule, “No inconvenience damages responsible appellant if this is ’’ delay. prosecuted frivolous or
be appears, that a statute of however, It California subsequent providing decision, to that enacted an of an is effect affirmance of the dismissal expressly judgment, the dismissal is made unless with- appeal: Spinetti Brignar- prejudice another v. out 521. 54 dello, Cal. 20 Kan. Mr. Madler, 57,
In v. Justice Brewer, Weeks justice supreme court of later associate following States, made the observation: United petition in error, of one “The dismissal ground illegal record attached to is that the
319 upon subsequent based action is no bar to a insufficient, adjudi- legal no There has been record. sufficient alleged inquiry upon into merits, cation no presented been so has not heretofore errors. The record that could examine it.” we judgment,” said the rule,
“The correct in our supreme Fla. Ferris, v. 18 court of Florida Harris irregularity, dismissed for “is that where an prosecution, or for the merits оf the cause not want having appellate court, determined a writ been may allowed, or a second if not error be ’’ prosecuted in faith, bad within the time limited law. foregoing same To the effect as the see also: decisions, Marshall v. The Milwaukee Paul 3 St. Railroad Com pany, 20 v. Ill. 644; Chamberlain, 620; Wis. Garrick 97 40 Stevens, Beller v. Mich. 52 168; Moore, Sanders v. Cooper Ark. S. 783;W. The Mutual Pacific Company, Rep. Insurance Nev. 116, 8 Am. 705; Life *22 Mining v. Collins Gladiator Consolidated Gold Mill & ing Co., 19 D. N. 358, 103 S. W. 385; Orth v. 30 Basker, 429. Hawaii question
The of the effect of abandonment of an barring subsequent appeal appeal a is discussed in as following language “Appeal 4 S., in C. J. paragraph § b, subdivision 1: Error”, ‘‘ general proceeding if that, rule is a The for review a has been without decision on the merits dismissed prosecution not bar seasonable of the it does case, proceeding appeal Application in or error. another may, precluded, be modified or however, rule this making a rule of court the dismissal of there is where appeal appeal a other an appeal requiring final and bar to unless the after dismissal, restored such or statute proceeding dismissal of the first that the be prejudice proceed- expressly without to another made ing, appellate proceeding oper- or an the dismissal of judgment appealed ates as an affirmance of the from, prosecution or leave of court essential to the of a proceeding, appeal second or an has been dismissed agreement perfect for reasons other than the failure to * *” * appeal In the same in section, subdivision we read: c, general attempted appellate “As a rule, where an proсeeding an another taking has been abandoned, the time for suing expired, out a or writ of error has not ’’ may prosecuted. or writ error be any pro shall ascertain
We now whether there is procedure relating in vision the code of criminal prosecuting method of an from the circuit court supreme expressly by impli court which either or right cation denies the defendant the to take a second period within the limited statute, when the supreme acquired jurisdiction court has never cause, due to the failure of the clerk of the circuit court supreme to file a court within the time required by considering law. In this matter we must pointed supra, in in mind, bear as out State v. Tucker, provisions taking that the of the criminal code for complete are within themselves and that light decisions civil cases this state “throw no subject”. also, See this connection: State v. v. 497; 3 Or. State Ellis, Bovee, Or. 4 P. 520; Berger, (N. S.) v. 166, 94 State 51 Or. P. L. 181, 16 R. A. v. (2d) 660; Archerd, State 144 Or. 309, 24 P. 5. supra, provisions Bovee, In it is said State that “the *23 [now § Oregon the civil of section 531 of code 7-507, relating appeals cases] in civil Code do not appeals in criminal cases.” affect code criminal now to the of the Turning sections find that we procedure relating appeals, not here 13-1205, Oregon Code exception § have not amended in material, they been any respect since the code in 1864, was enacted with refer- except ence to the time may when an be taken appeal (§ 13-1208, and in Oregon Code the time which to file the 1930) transcript with the clerk of the supreme (§13-1220, court Oregon Code Section 13-1220 1930). is as follows:
“Upon being taken, the clerk of the court where the notice filed, must days within 30 or such further thereafter, time as such or court, judge thereof may allow, transmit a certified copy the notice of certificate of if appeal, cause, and any, judgment roll to the clerk of the court.” supreme
The next two sections of the code as follows: provide “If the be irregular a substantial partic- ular, but not otherwise, court appellate may, motion of defendant, respondent notice to the order it to be 13-1221. § dismissed.” — ‘ ‘ also, like motion may upon court The appellate if be to be dismissed the return notice, not made order the 13-1220, unless for good as section provided clerk require of the cause it retain the appeal, further return as to matter make a court below to which or is to be merits, alleged affecting omitted from appears 13-1222. transcript.” §— hereinabove quoted, There is sections nothing criminal which code, expressly any part or in a case the a defendant criminal season- right denies to a second notice of supreme ably give instances in which the court in those supreme court of the cause jurisdiction through not acquired has due to the failure to file in this attempted prior by law, the time provided required within court, *24 322
transcript. express provision There is no contained in in- the criminal code which makes the dismissal of an appeal appeal; effectual final and a bar to another nor any provision is there therein which bars a second appeal proceeding unless the dismissal of the first is expressly prejudice, made without which or makes such operate judgment dismissal as an affirmance appeal from which the was taken. Nor can it be said provisions procedure that the code оf criminal relating appeal impliedly deny to a defendant the seasonably right, appeal if exercised, to take a second supreme acquired in instances which court has not jurisdiction to hear and determine the cause on its prior attempted appeal. merits virtue of a Sections supra, merely provide 13-1222, 13-1221 and for the contingencies. dismissal of an They certain provide for judgment do not the affirmance of the appealed attempted from, event that an is abandoned. Keeney, v. 81
State
Or.
The
could
take a second
in a criminal case
defendant
having perfected
subsequent appeal
first
after
his
or
adjudications
entirely
relating
is founded
support
appeal's in
cases.
first case cited in
civil
The
the conclusion
the court
therein reached
only
Schmeer,
243, 17
P.
and the
Schmeer
Or.
authority
Meek,
Brill v.
over is functus officio can not be exer- prac- a second time. This has been the uniform cised. tice. After а party, any cause, from has lost the benefit appeal, of his he is driven to his writ of error.” Brewing In later the case of Schnaider’s v.Co. Lev App. pointed vie, 41 Mo. 584, it is out' that the statute provides appeal perfected of Missouri if that the be prescribed, ap in the manner and within the time the pellate upon filing court shall, the of the record therein, judgment appealed good affirm the from, unless cause contrary be shown. The court there observed opinion supra, that in the statement the in Brill Meek, concerning appellant’s being the driven to his writ of appeal beyond error on loss of “from cause” went scope question the there involved and there fore dictum, further, that would be inconsistent grant judgment appeal a writ error after a on appeal. had been affirmed due to abandonment of the is, however, There sound for the that reason rule procedure Oregon under the code of civil of the state of appeal perfected an has when been and then abandoned transcript supreme to file in failure the the court statutory period, within the no second or further Oregon permissible. 7-507, Section sets Code procedure relating appeals forth the in civil matters. requires appellant a shall, This section that within 33é period, appellate file his tran-
certain with the court script appeal. provides 2 of the section on Subdivision if the is not with the clerk of the filed appellate provided, court the time “the within shall deemed and the effect thereof abandoned, be And of this section is as terminated.” subdivision 3 follows: provided “If abandoned as in sub- be judgment thereupon division 2 of decree, or section, recovery money,.may, so far as it is for the against appellate court, be enforced the sureties they undertaking stay proceedings, in as if parties judgment
were to such or decree.” holding It has been uniform of this court, based largely wording on the of the statute above referred to, that when has been abandoned in a civil case respondent may, upon motion, have the dis- judgment appealed missed and the from affirmed. In recovery against could not fact, well be ordered undertaking sureties af- without judgment against appellant. firmance of the On the appeals other hand, criminal cases no bond is *26 required only and the defendant, result of failure transcript to the file as far as time, the statute relating appeals criminal to is concerned, is the dis- appeal. missal of the Keeney apparently
The decision in v. State is holding supra, conflict with the v. State Tucker, which latter case is not therein mentioned, nor is the fact as in noted, therein the Tucker case, that taking appeals provided by method of the criminal code complete within itself and therefore the decisions light subject this court in civil cases throw no on the appeals in criminal cases. It would seem inconsistent
325 to hold that when an has been appeal abandoned failure to a through file in the transcript supreme court within the time prescribed, has appellant exhausted his right to have as yet held, in the Tucker case, that the court could revive and grant a appellant to second right appeal merely through process filing the appellate court the in the transcript abandoned and hav- ing dismissed without prejudice.
State v. Keeney, supra,
appears
be the only
criminal case in the Oregon reports
that
holding
has
right
been exhausted by failure to file
appellate court within the time
allowed and that a second
can not
thereafter be
taken. The
question
a
right
take
second
appeal was not involved in the
most
following cases,
of which were referred to in our former opinion: State
ex rel. v. Estes, 34
v. Williams,
196,
Or.
327 and some such as through error, failed technical court Pl. & Pr. to to file the Enc. transcript (2 357), omission the court hear his jurisdiction cause, to confer upon the if to take seasonably exercised, be not denied right, to a Such is the effect be the given second appeal. Tucker, State v. find decision which we supra, ruling and to the textbooks the de amply be supported not cisions of other It does to jurisdictions. appear an necessary be to order of this court dis procure missing without in a prejudice abandoned appeal a case, criminal before second taking appeal.
In the instant case the defendant was doing every- in his a power to of the thing procure transcript testi- the at earliest moment. The mony possible attorneys for the state knew that the of testimony not could be court until completed reporter than more after the thirty days notice of original was filed. or They knew should have known that when of
extensions time were obtained defendant and present a bill of prepare exceptions thirty days next following original notice of appeal —within to file which the transcript and no ex- expired —had tension thereof had been granted, nevertheless did they object not to the extension of time or to the incurrence of a considerable expense by the defendant in hav- very ing shorthand notes of the extended; reporter even additional they requested in which to time file objections bill of proposed exceptions.
In criminal cases, execution of the judgment of conviction is not stayed of an during pendency “a unless the defendant procures certificate of in which judge court the conviction had, or of judge supreme that court, his opinion is there cause for probable the appeal”: §13-1216, 1930. Whether “there is cause
Oregon probable Code for the is a judicial matter of discretion upon the trial or the depends opinion judge” is court whom judge supreme application questions “after all the which were made, considering rel. v. the trial of the action”: State ex involved upon P. Ellis, 156 Or. 995. An to take (2d) attempt in a successive criminal case for the appeals purpose for the reason delay altogether improbable, unless a certificate stayed the execution will be will cause be such certificate probable procured, *29 issued unless the is dili- not be appeal being prosecuted and faith. In the the in instance gently good present . all the in the case circuit who heard evidence judge issued a certificate the of the notice upon filing original notice, of and the of second again upon filing the appeal that in his there was cause opinion probable indicating for appeal. the of
Inasmuch as second notice was sea the in transcript lodged and the su sonably given law, court required by court the time this within preme subject of matter. The the cause jurisdiction acquired for this court consideration and is before therefore on the merits. decision this in the former opinion rendering
Prior and the second the of both original transcript case transcript of exceptions, the bill with together appeal, had filed been case, and exhibits testimony no and therefore court, clerk of supreme an order entering be served would good purpose ££ already spent since it has appeal, the first dismissing not “of is no avail because event and its force” reason that and for the further duly prosecuted”; from this court will issue upon which mandate cause show the entire final determination will court. all the matters herein made this disposition is hereby former order dismissing Our reinstated. set aside and and the vacated, concur. Bean, JJ., Belt and Rossman, Lusk, J., participating. C. J. dis-
RAND, (dissenting). Since this case was a missed under former order of court, the defend- ant a has filed petition also motion rehearing to strike his first notice of from the files him to be heard permit his upon second appeal.
In our former we opinion held that the must be dismissеd because of Rosser’s failure to file the within the time allowed law and that his second which was taken after the first appeal had been invalid. perfected, was ruling
This Rosser claims was erroneous con- Tucker, State trary 57 Or. holding P. case, 392. In that court said: find the great weight
“We authority is to the effect that, in absence some statutory provision contrary, the dismissal of an appeal without *30 a is not a bar prejudice second appeal taken within the allowed for by time statute that This purpose. qualification rule is that applied the ap- first reason, has become peal ineffective some technical either in the method of taking it or through an honest failure file the transcript court appellate by within the time law.” required If the facts in this case were the same as in the and if Tucker case the same procedure had fol- been that decision would have lowed, been controlling a not the same and case,
instant but the facts are procedure case, In this different has been followed. perfected appeal and, an while that the defendant first appeal pending he filed undetermined, was still and appeal a obtain- and served second notice of without appeal, ing any the dismissal of the first order for In Tucker case, as was done in the Tucker case. attorneys recognized under that, and the court the rule appeal of this a second could court, the decisions appeal perfected an be taken if first had unless a been dismissing by first made court order was first this appellant’s right appeal prejudice without prosecute appeal. and a second Under the statute appeals in court, of this criminal cases are decisions serving filing proper perfected and of a notice appeal. appellant may may The fact that the or transcript file a court not thereafter within the bearing upon question has no time law allowed appeal perfected an in a criminal of when how ease. appeal has however, that, where settled,
It is well serving filing proper perfected of a not been subsequent is void and a notice of may being taken court order then be without dismissing appeal. rule, however, the first That made application to this case because the record has no here perfected although the first shows later file a defendant did not within the time by law. allowed the second had been taken, after there
Hence, appeals, case two both of which had in this been were dismissing perfected no order had been made holding appeal. There is no decision this state first circumstances, such second can be under that,
331 merely that, held court case the In the Tucker taken. perfected case appeal in a criminal had been after an transcript within appellant to file the had failed and the through of his his or no fault of own the time allowed showing proper this attorneys, upon fact, of that a prejudice appeal first without dismiss the court would right the court did a but to take second to his showing order, and such such hold without that, not ignore appellant, first could his motion, on his own appeal appeal appeal a the first and take second pending In that case also and undetermined. still made before aside the first was motion to set statutory taking .period an had for the long expired. after that time the motion is made Here, expired. has maintained in this
If defendant’s contention can be appellant any appeals then an can táke number of case, judgment and not file his until from the same thirty days after the last and all this taken, was any showing diligence upon part his without dismissing appeals without order the court previously procedure taken. is not Such authorized nor the statute has it ever received the sanction supported anything this court and is said Tucker case. uniformly court that, been held under
It has
perfected,
has once been
statute,
our
when
right
exhausted and cannot
exer
be
This
held in
v.
time.
Schmeer
cised a second
P.
a civil
864,
case,
17
but
Schmeer,
Or.
approved
ruling
followed
State
same
Keeney,
P.
a criminal
That
case.
478, 159
81 Or.
applied in numerous other criminal
doctrine has been
and after the Tucker
both before
decision
cases decided
was rendered. The
to that
only
recog
rule
exception
*32
court
is
the
by
nized
this
where
as in the
appellant,
case,
Tucker
to take a
granted
right
second
under an order made
this court
a
by
upon proper
the time fixed
showing
within
the statute for
by
of an
taking
Hence, unless we
appeal.
are prepared
ex rel. v.
State
to overrule
Estes,
34
P.
196,
Or.
51
77,
v.
Williams,
State
55
State v. Dick
Or.
P.
143, 105
716,
erson,
v.
55
P.
790, State
390,
Or.
106
Douglas,
56
Or.
v.
Webb,
State
20,
957,
107 P.
59
235,
Or.
In State supra, court, at a time when Mr. Justice who wrote the opinion McBride, case, Tucker Justice, Chief a curiam per opinion in which all the then members of the court concurred, said:
“An
appeal is
statutory remedy, and,
order for
the defendant
to have the benefit of an
is nec-
essary for him to comply substantially with the require-
of the
ments
time
statute. After the
of the
expiration
allowed
statute for filing
of the
copies
documents
neither
required,
the Circuit Court nor this court has
order nunc
to make an
tunc
authority
pro
extending
or
time,
to change the statute by granting a differ-
ent
than as
right
provided
by the statute:
v.
Kelley
Pike,
330,
17 Or.
333 65, 71, 62 Or. Hawthorne, v. and are void: law, Grover P.804, 121 808. transcript filing time allowed within The court, by when the matter. allowed or the time statute, within jurisdictional extended, is a time therefor is In criminal cases where upon days provided law, the five filed within appellant, respondent motion of the and notice to must has no in the matter and this court order the 143, 790; discretion Williams, v. 55 Or. dismissed: State 106 P. 390, 105 v. 55 716; Dickerson, P. State Or. Douglas, 957; 56 107 P. State v. State Or. Webb, 272; 117 P. Davidson v. Or. Columbia 441.” Co., 577, 91 P. Timber Or. Morgan
In the case the defendant had been con- degree *33 victed of the crime of murder in the first appeal attempting judgment. from said His he was transcript days file the within the failure to five then by grew following the law out of facts stated in allowed opinion: the by plaintiff “It affidavit is shown on behalf of day appeal the of
that on the on which notice was filed judge probable the circuit issued the certificate of the for cause. On account of date set execution the of January attorneys defendant, defendant carried 16, 1913, one of the for person the certificate to the war- penitentiary, den of the and returned to Condon on the January, preparing of 17th with the intention exceptions, having transcript and of bill the filed Supreme required by in the Court within the time law, expire January which time would 19, 1913. Not being complete exceptions, able the bill and the judge holding Oregon, circuit then court at Pendleton, attorneys one of the tried to communicate with the judge by telephone, purpose for obtaining the extending filing transcript order the time for the but Upon to do unable so. the return of the circuit judge expiration from Pendleton to Condon, after the days transcript, of the five file which to the the
judge signed why way explained such order. It is in no counsel for did not defendant communicate with the judge by telegraph, by circuit the or some other means than telephone; any explanation nor is made as to there why the order for the extension of time was not ob- during days’ at tained an earlier date the five time, preparing filing at which, most, is short for a tran- script. transcript ready It is clear that the was not by to be filed the clerk; therefore it was no fault of the clerk that the same was not transmitted within ’’ time allowed law.
Notwithstanding showing thus made, the motion Morgan to dismiss the case was sustained. change There has been no in the statute since the Morgan except extending decision case the time filing transcript thirty days. from five to If, as supreme court, neither court nor stated power by pro has the a nunc circuit court tunc order extending expiration time after the of the time change appeal, nor to the form of the allowed then clearly by merely after himself, defendant default, filing notice of a second without order setting being made aside the first has no such grants single power. right The statute but a is, and the law of this state as settled the decisions of court, that no second can be taken where perfected appellant first has been *34 has failed to file the within the time allowed, except single in the instance where an order of this upon showing, dismissing a sufficient obtained, court is prejudice. the first without The defendant does exception not come and within the doctrine an- application nounced in the Tucker case has no whatever presented here. to the facts referred to, Under the decisions above should be dismissed. J., concurs.
Kelly, 6; 23; Argued May June on the merits and submitted affirmed rehearing July denied On the Merits (91 (2d) 295) P.
In Banc.
Appeal County. from Circuit Polk Court, Judge. Gr. Arlie Walker,
Albert Earl Rosser was convicted of arson and he appeals. Rehearing
Affirmed. denied. George Mowry, (Greorge of Portland F. Vanderveer, of Seattle, Wash., and Charles W. Robison, Leland B. Mowry, brief), Shaw, John all of Portland, appellant. Spaulding, Attorney, Bruce District Dallas, Ralph Moody, (Oscar Hayter, E. of Salem of Dallas, brief), on the for the State. The
BELT, J. defendant Albert Earl Rosser was tried and indicted, convicted of the crime of arson and imprisonment sentenced without limitation of time years for a maximum term penitentiary. twelve judgment From this ap- conviction, defendant peals, assigning numerous errors. charges
The indictment that the defendant, on the day county, November, 20th in Polk state of Oregon, “wilfully, maliciously did then and there
feloniously night-time, set fire to and in the burn, manufactory namely, certain Box another, Salem Manufacturing Company, Oregon corporation, County located near West in Salem, said and State.” in contention in- 14. There is no merit that the vague, indefinite, “too and uncertain dictment is to of the nature and the dеfendant cause of the inform against him.” The indictment is in accusations drawn (§ Oregon language 14-302, of the statute Code 1930) sufficient. doubt, is, and without this criminal facts out of which action arose
The briefly question, At as follows: the time stated, are, Rosser was chief executive of defendant the Team- Oregon, which in the state was affiliated sters’ Union Labor. American Federation of Rosser main- Temple city Labor his office in the of Port- tained secretary of Joint Council 37, land. He was No. organizations delegates from the various local which represented. throughout the state were He was also secretary Teamsters’ local Union No. 162. In July, caused Albert defendant Norman Banks to 1937, Oregon, agent act as go business Salem, Team- Hugh Reynolds, residing No. of which Local sters’ secretary. Oregon, Eugene, was At the time Banks at Manufacturing Box and Salem, the Salem came to employing Company, 60 or 70 men, became involved in Soon thereafter a strike controversies. labor plant picketed Building and the called Trades ’ which the local of Salem with Teamsters Union Council affiliated. up first testified that he took Banks with Rosser at Portland, in his office November 1, factory box trouble at the labor West Salem, and ‘‘only way you him the would ever deal told with Salem Factory that Rosser down,” be to burn it Box would to do men down “decided that he would send some pay (Banks) them for and that he should that,” according Banks, Rosser In conversation, fire. *36 your “pay and fund” told him to them out slush pay- covering money expended out checks such make “organization.” to able conversation with Ros- he had a second said
Banks concerning factory, about the box Portland ser at him “he and the latter told 1937, 10, Novеmber intending send but hadn’t done them, it, to had been ’’ right away. do it that he would but conversation with Rosser to a third Banks testified subject. concerning telephone the same This over the * * * shortly “day before a or two occurred telephone up.” In this conversation, showed fellows “again according Banks, mentioned that he R|osser, men but that down, send those he would unable to ” away. right do it morning 15, 1937, of November Ernest Car- On Moore—all members of son, Newland, John Cecil to Banks’ in the Teamsters’ Union—came office Salem “they and said had been sent down from Portland.” had seen men Banks, before, who never these told them that he “had talked to Rosser and that he was going whereupon they to send the men down,” said, call him “Well, back and tell him that we are here and ’ ’ that will take of it. we care plans made at and the three men no definite
Banks concerning burning of the mill Banks but this time he see them on their return said that would from Cali- paid currency in Banks them due fornia. “Slim” $20 “job” breaking for a done him in Henderson in window the Golden restaurant in Salem, Pheasant they appropriated which to their own use. proceeded Eugene, Carson, Newland
Moore, Oregon, they Hugh Reynolds, where it is said contacted secretary Eugene, they of the Teamsters’ In Union. (State shop some in a non-union broke windows barber Reynolds, (2d) 413), 86 P. then 445, Or. drove days to they California. After a in Oakland, California, few through Eugene again evening came on the November and smashed the windows of the “ shop doing barber a second time order to be sure of good job.” morning The three men arrived Salem the next (Friday, 19) directly November and went office talking of A1 Banks. After the situation Banks over, men the three drove out to West Salem where pointed factory Bаnks out the to be an- burned. After payment currency other $10 was made to them *37 Shortly Banks, the three men to returned Portland. midnight they after came back and set fire to the mill totally destroyed which approximately at a loss of thereupon $90,000. Carson, and Moore, Newlands went day back to Portland. In a or two after the fire, Car- son and Newlands came to Salem to see Banks about being paid job. paid further for the Banks them an currency aggregating additional in $75 for the $105 — job they were not satisfied. Banks said he told —but up them he would take it with Rosser and “if he said okey pay money, it was to pay them more that I would more, them but like otherwise I didn’t feel I could.” Carson and Newland returned to Portland and divided co-conspirator with their Cecil crime, Moore. juncture particular part is well at this to note It the accomplices played eaeh of these that in this crime. gasoline the box poured lumber in on the the Newland factory; ignited gaso- lighted the match and Moore near mill in the automobile ; line and waited Carson away from scene in order to drive his associates Moore after fire had been started. Cecil of the crime from who had been sen- Quentin was a convict San 7y2 being years robbery. After con- to serve for tenced years, paroled Ad- for he was to Clarence fined four hiring hall at “boss” of the Teamsters’ Union ams, joined Portland. Moore the Teamsters’ Union but was required pay any At not initiation fee or dues. having guilty pleaded of trial time he admitted to four pertaining felonies and two misdemeanors to lawless “ ’’— paid job labor activities. Banks men to do the says, who, men he him were sent to the defendant Rosser. day February, arrested,
Banks 7th participation burning in the crime of shortly guilt factory, and confessed his thereto. after guilty pleaded a term He was sentenced serve years penitentiary. Moore, Newland, guilty pleaded also confessed and to the same Carson Hence, crime. in this case there are four self-confessed accomplices Moore, Newland, and Carson. Banks,— and in in his written confession his testi-
Banks, jury grand mony occasions, on two said that before implicated in the but crime that was Rosser was three men him. Adams who sent the In Clarence perjured that he trial Banks admitted lied and only to save Rosser. It was after had himself Banks imprisoned penitentiary sentenced been *38 says, as he “to clean” decided, he come and tell what Rosser. Moore, Carson, he about knew Newland all they that were not sent to Salem testified Rosser to nothing Banks and that Eosser had see whatever to the commission of do with the crime.
It is that the above statement of the case believed comprehend legal questions pre- is sufficient appeal. theory on sented It is the of the State that en- Eosser, Banks, Moore, Newland, Carson were gaged design— in the execution of the common same namely, burning Factory of the Salem in Box order compel plant. its unionize owner to It is not any part contended State that Eosser had actually starting procured fire, but that he the three purpose setting men who came to Salem the fire factory. to the In other words, it was Eosser who was guiding spirit enterprise in this criminal and the question merely part plan fire of the common doing employers violence to who would not accede through demands of the union. The defendant, his counsel, conceded the trial in the circuit court accomplices and on this that the four above participated named in the commission of the crime charged in the indictment, but at all times has main- nothing tained that he had whatever to do with it. presents motion for a The directed verdict question vital as to whether there is evidence, accomplices, tending aside from that to connect Eosser the defendant commission of the crime charged as in the indictment. Such motion is in the na a demurrer to evidence. ture of It admits the truth every disclosed of the evidence as the record and rea might be sonable inference drawn therefrom. When reasonable inferences can different be drawn from the question exclusively is one evidence, within the jury. province of the It is not the function of the court judgment questions its to substitute of fact for that
341 in considering assignment Therefore, of the jury. in the most light must he the record viewed of error, not to be concerned are favorable to the State. We the of nor with conflict of the evidence weight with testimony. had on common law conviction be may
Under of an but testimony accomplice, the uncorroborated in the matter con- such is not the rule this state as is 13-935, 1930, trolled statute. Section Code Oregon provides:
“A conviction can not be had testimony upon unless he be such other accomplice, corroborated as evidence tends connect defendant with the and the crime, commission of corroboration is not if it merely sufficient show the commission of the crime, or the circumstances the commission.” The section has been many above times considered by cases reviewed in State v. Reynolds, this court. (See nо We see need for supra). repetition. The language is so the statute that there plain unambiguous has been need for it. slight construing Any difficulty in has been the statement of the experienced law but rather its to a factual application particular situation. in this jurisdiction
It is well settled that, there is no corroborative evi the objection when connect the defendant with the com tending dence is made, legality crime the verdict of the mission light strongest statement of must be tested that can defendant be reasonably made against ease v. Reynolds, State State v. supra; the evidence: from 604; State v. Braz ell, (2d) 140 Or. P. Young, It P. is not 884. necessary that 126 Or. be direct and positive. evidence It corroborative may 34:2
be
v. Brazell, supra;
circumstantial
State
character-:
People Mayhew,
150 N. Y. 346,
In the of the above light turn legal principles, we *40 the record ascertain whether there is evi- dence, separate distinct from accom- that taken which, itself, tends to plices, connect de- fendant with the commission of the crime.
David Rutz, who not an testified accomplice, he that was Rosser as employed by business agent and ‘ ’’ ’ ‘ agent outside the Teamsters Union Local 162 and such that he retained under the di position working — rection of Rosser —until February 25, 1938, when he for a of which he was arrested crime was convicted and sentenced Rutz imprisonment penitentiary. further testified that was in the he office of Rosser in Portland, “Sometime fore-part December, last Banks year (1937)” when entered “You saying, are too, after money, are Rutz you?” states that Banks # * “I am after this added, money morning *. * * * Those stooges want more money,” and that “ A1 Rosser much says, ‘How did you them?’ pay Banks dollars.’ hundred five Rosser says, said, ‘One ‘That’s * * *. bastards,’ So then enough for Banks said, I don’t know what would be ‘Well, it. right What ’ And would call then Rosser enough. ‘I you said, guess a damn good didn’t they pretty job, done they?’ And —a it was it was said, ‘Yes, Banks a hot place. Grot Rosser said so hot it even * [*] curled [*] ‘I’U up call Clarence Adams and see railroad tracks.’ Then can do about them paying what we some more money.’ talking they question about. was fire I what asked factory ‘That box them said, one or other of And ” reading papers'?’ you been at Haven’t fire Salem. (Italics ours.) clearly opinion, believed, if evidence, this
In our charged. the crime Rosser with the defendant connects solely veracity the considera matter Rutz’ was jury. circum facts and are other There tion of might evi corroborative allude as which we stances to to show above is sufficient but we think the dence, denying a di a motion for no error committed was agree acquittal. unable to are verdict of We rected testimony Moore, for defendant that counsel a matter law, as Carson, refutes, Newland implicated in the of Banks that was evidence Rosser charged. testimony pol came from a crime All jury and it for the to determine luted source who telling the truth. assigned giving Error is on account of the following jury: instruction to the
“Aiding abetting intentionally giving and is assist- perpetrator ance to the actual of the before, crime during (Italics ours.) after, or its actual commission.” Exception was taken to above instruction including reason of therein the since “after”, word jury it submitted issue as to whether defend- guilty accessory ant as an after the fact, whereas charged being principal. he in the indictment with a abrogates Oregon 13-724, 1930, Code
Section accessory an before the fact and between the distinction by providing that: principal a accessory between an the in the distinction before “The principals principal, and a between and
fact degree, felony, abrogated, first and second cases is persons felony, and all concerned in the of a commission they directly constituting whether commit act though crime, or aid and abet in its commission, not present, must punished hereafter be indicted, tried, and principals, as inas a case of misdemeanor.” “aid and
The words
abet” as used in
above
abolishing
accessory
the distinction
an
between
section
they
principal,
directly
and,
fact
whether
before the
constituting
act
the offense or aid and
commit the
abet
though
present, manifestly
commission,
in its
not
have
encouragement
or act
reference
some word
or
in the
assistance
commission
and
offense,
not
something
complete.
done after
crime is
In other
accessory
after the fact is not an
words,
aider
abettor under the above section of the statute: State
Jones,
113,
Iowa
Relative accessories after fact. Section tot Oregon provides: 14-1003, Code persons “All who, after the commission of fel- ony, or knowledge conceal aid the offender, with felony, he has committed а may and with intent that he escape avoid or from pun- arrest, trial, or conviction, are ishment, accessories.” no evidence in the record from There which reasonably inferred that be the defendant could was an theory accessory The the fact. after of the State is abetted commission that he aided of the crime by procuring Newland, and Moore, Carson to set fire *42 error in factory. that the however, think, to the We including “after” the word the instruction reason jury charge in its in view of the was harmless entirety. phase court case, of the Relative to this that: instructed
“* * acquiescence, knowledge, silence, the mere justify Nor would or not a conviction. consent, would approval justify But a conviction. a mere of the act part positive of the defendant there must be a in case, act on So, in offense. this the aid of the commission knowledge you have if find that this defendant did or had commit- committed, that the to be been crime was acquiesced in or that he the commission ted; knowledge the same and re- or that he had same; approved of or that he the commission silent; mained or commission; or after its crime, of the that he consented to the and abet fined these words either before actually but did not aid same, I in the commission of the crime as have de- you, you should not convict him.” jury the idea that the The above instruction refutes might been misled as to whether defendant have accessory fact. as an after the could be convicted refusing give committed in No error was following requested instruction: “ * * also, at the defendant is bar, In the case having Banks, New- Al N. John accused of assisted any of Moore, them, or land, Carsоn, Ernest or Cecil escape punishment the arson had been arrest or after you, completed. therefore, And I instruct even beyond might though you a reasonable doubt believe assistance, such still it defendant did render that the your duty, case, under the evidence would be Guilty, him I stated, as have that is because, Not find not the ment and he charged in offense which he is this indict- cannot be convicted of that offense in this trial.”
The above instruction is in is no abstract that there accessory that evidence the defendant as an after acted the fact. It is in a further erroneous that it calls for guilty though verdict of not even that be established defendant aided and abetted the commission of the requested crime. This instruction invited error instead clarifying by as issues contended the defendant. urged refusing It is that the in court erred to strike following testimony State, witness for the Banks, on direct examination: *
“ # (Dave Beck) He said he remembered on one occasion, said, he ‘This ais broad statement to make, talking but’, ‘I said, he I am to a know I bunch of men can trust. I feel it.’ said, sure of ‘I He know of one large changed money occasion that where a sum any hands men with two on the street. No one was wiser and this inwas a criminal case’, said, and he ‘that no one was the wiser and that main wit ” up ness never showed for the trial.’ according to statement, Banks, above was made
The meeting by Beck at Joint Council 37 in Port Dave September October, 1937, in or at which land time complaints by under discussion various there was mem against inability union Rosser on account of bers of the money his books ascertain from what of the ’’ ‘‘ ‘ spent for. Dave union Beck was was ‘International Organizer” having of the Teamsters’ Union, control suрervision of such work in eleven states, includ ing speaking Oregon. He defense of Rosser’s accounting expenditure policy for the of union funds. “ * * according said, Banks, further Beck in order thriving organization you all to be a what must to do— you power to trust the executors that was in had ’’ Why, any questions money. there shouldn ’t be asked. present infer and it is reasonable' Eosser say superior had to officer,, his Beck, he heard what that Banks testified such It is recalled matter. about ‘1organiza mark,the word him to that Eosser instructed money had been ex on certain checks where tion” ’’ ‘‘organization pended was the method Such work. covering currency Banks followed $105 paid as Newland, him Carson, to Moore, shown by checks received in evidence. this evi the defendant that
It contended *44 indirectly impli prejudicial highly in it dence was charged in indictment. a crime not the cated Eosser in no In of there intimation that Beck, this statement was any merely It Eosser crime. indicated had committed policy support of to declaration which tended theory plan, in of of a common which defend the State illegal up expenditure participated, to of ant cover funds. think evidence admissible. What was We applies equally assignments of has been said to Bill at error in reference the talk of Blackwell this to meeting present. Eosser It all tends to when was willing if show, how a few “racketeers” believed, were prostitute organized layresorting to cause of labor Gillis, to crime 232, and violence: State v. 59 Or. (2d) P. 679. examination, Moore, Cecil witness for direct
On paid whether Eosser had ever him was asked State, money replied purpose that he had not. and he For the memory, refreshing his the witness’s attention of was written statement made him to a directed relative his favor for dated $50, a check in October to receiving A. E. Eosser. Moore and drawn admitted says given “picket duty”, as he for but check, still money he had not received the insisted that from Rosser. There Estabrook, is evidence that at the Jack direction of Rosser, in paid Moore cash and took $50 the check. up
Error assigned is because receiving in questioning check evidence witness concerning Moore a reluetant and unreli payment money. to able witness. The State had the contradict him right above 9-1909, Oregon as stated: Sec. Code 1930. It is true that the been about check, having issued six weeks fire, before the had slight bearing the issues case, is to but it entitled go jury what it was worth as to show the tending defendant’s association with the Moore. dealing is accomplice There slight merit contention that the check and the ques it tions reference to prejudicial were to the rights It is defendant. true that the defendant’s as and dealing sociation with Moore did not reflect much him credit but the upon moral obvious. error assigns because bail of
Defendant defendant fixed the sum $100,000. No appli made to the trial court to cation was reduce bail until conviction, after judgment whereupon was reduced $25,000. We fail see wherein the amount of bail *45 has any bearing upon question of required defend guilt. ant’s
It is that erred in the court urged defend- denying motion for return to him a ant’s of number large documents, letters, of and records seized officers he in at the time was arrested his office at Portland on 1938. None of these February 8, various or papers in documents was offered evidence the check excepting in favor for drawn Rosser of Moore. It $50 is con- tended that defendant was thus of deprived the use of in documents his papers these defense and that
349 they and sec- of the “statutes seized violation were Oregon.” I Article of the Constitution tion 9 of made the officers At time this arrest was arrest. a lawful armed with warrant. It was were papers owned documents and The seizure arrest. As stated defendant incidental to the Laundy, 204 P. 443, v. 103 958: State Or. arresting right to seize articles to the officer of the “The right evidentiary not confined value is person prisoner. property of a from the search and take arresting general broadly, rule is that the Stated lawfully making may the arrest at the time of officer possession control of or under the take articles the Citing guilt.” they supply prisoner, evidence of if authorities. numerous
Also P. Walker, 680, 850; 296 Or. see: State Myers, 249 P. and cases in 637, 119 Or. Keeler v. A.L.R. 1388. note 74 against that the indictment Defendant contends ’ “wholly authority
him returned without law’ grand jury any not before the evidence that there was tending him with the commission of the crime to connect charged not from the therein. We know record before grand jury before the for con us evidence was what in the trial No motion was made court to sideration. question, therefore, indictment. The is not annul the See State v. Slim and Wolfe, here review. Or. (2d) cited. P. and cases therein 174, 17 rights urged the Constitutional It is by depriving him of “due violated have been defendant “equal protection of the law.” process the law” no merit in this opinion, contention. there In our revolting and violence is of crime record This law-abiding citizen. right-thinking and It in no every *46 purpose manner spirit organized reflects the true labor, but rather “gang- the lawless activities of a few prostitute sters” who would its cause. The defendant represented by has been able counsel and has had a impartial fair and trial. There is no error in the record warranting a reversal. judgment
The of the lower court is affirmed. sitting. Lusk, J.,