State v. Bertschinger

177 P. 63, 93 Or. 404, 1919 Ore. LEXIS 175

• Court: Oregon Supreme Court
• Decided: January 7, 1919
• Status: Published

Opinion

JOHNS, J.

This case is the usual result of oral stipulations between counsel about which the court is not consulted and which it has not approved, and of the setting of trial without ample notice to opposing counsel. Yet we are convinced that the office of the district attorney acted in good faith and that any apparent delay in the trial of the case was not through the fault of that office. The record shows that the real cause of the delay was the congested condition of the trial docket and that this case was actually set for trial on the first open date.

While the defendant’s motion to have the indictment dismissed is upon the alleged failure of the state to have the trial set for the October term of court, yet it is very significant that the motion to dismiss was not filed until after his counsel had received notice that the trial was set for December 14,1917, and that he claims he was not ready for trial then for the reason that he conld not obtain the attendance of an important witness. There is no showing as to who the witness was, whether or not he was ont of the jurisdiction of the court, when he had left or whether he would ever return, what he would testify to if present, or what effort, if any, had been made to locate the witness. The defendant is placed in the untenable position of complaining because he did not have his trial at the October term, and objecting to his trial in December on the ground that he was not then ready for trial. There is no merit in the motion to dismiss, and the ruling of the Circuit Court is affirmed. Affirmed.

Bean, Benson and Burnett, JJ., concur.