State v. Stilwell

198 P. 559 | Or. | 1921

McBRIDE, J.

While a reading of Section 45-1, supra, might seem at first glance to authorize the court to grant a change of venue in any case where an affidavit of prejudice is filed, the authorities seem to hold the contrary doctrine, and particularly the Supreme Court of the State of Washington, from the laws of which state the section quoted was copied: State v. Superior Court, 88 Wash. 344 (153 Pac. 7); State v. Superior Court, 88 Wash. 669 (153 Pac. 1078); State v. Superior Court, 106 Wash. 507 (180 Pac. 481).

1, 2. When a statute is copied from the laws of another state it is usually assumed that it is taken with the construction put upon it by the courts of the state in which it originated; and in that view we hold that the Circuit Court had no authority to change the place of trial to Umatilla County upon the showing of prejudice made by defendant in his affidavit. But it does not follow that because the court made a mistake in its ruling upon that subject, whereby the cause went over for the term, the defendant is absolutely entitled to have the indictment dismissed. The statute says in substance that it must be dismissed “unless good cause to the contrary be shown.” The court has jurisdiction, in a proper cause with a proper affidavit, to change the place of trial of a criminal action, and has jurisdiction of the general subject matter.

3. It appears from the record that the court erred in its construction of the statute, and granted a change where it had no jurisdiction; but, taking the whole record, we are of the opinion that the delay occasioned by the change was not such as to justify a dismissal of the cause. The defendant was first in the field asking for a delay. He filed an affidavit asking for a continuance, to procure the attendance of a witness, and when this was overruled he filed the affidavit of prejudice. It is well known to judges and lawyers that it is not always possible to send a judge from his own circuit to another to hear a case, without more or less delay. Judges have the business of their own circuits to look after, and the chief justice of the Supreme Court not infrequently has to make inquiry in several districts, involving correspondence by letter or telegraph, in order to find a judge whom he can assign without detriment to the public business, so that these applications frequently have the effect of putting the case over the term, a consequence which the defendant might have foreseen and possibly did foresee when he made his application.

We are of the opinion that the record, taken as a whole, shows good cause why the indictment should not be dismissed. The order of the Circuit Court is affirmed. Affirmed.

Brown, J., took no part in the consideration of this ease.