[401]*401ROSSMAN, J.
This cause is before us upon a motion of the defendant (respondent) for an order dismissing the appeal undertaken by the state (appellant). The appeal challenges an order entered April 26, 1962, by the circuit court for Baker County which arrested the entry of judgment in this ease. The latter is based upon an indictment, returned by the grand jury of Baker County, which charged the defendant with the crime of perjury. Before the defendant moved to arrest judgment a jury had returned a verdict of guilty. The defendant, in support of his motion to dismiss the state’s appeal, argues (1) an order in arrest of judgment, as authorized by ORS 136.810 to 136.840, is intermediate and, therefore, not final as that term is defined in State v. Brown, 5 Or 119, and (2) since the court in this case upon arresting judgment did not order the defendant’s discharge from custody but directed the sheriff to retain him to abide a new indictment in the event one was returned, those circumstances indicate further that the order which the state wishes to challenge is not final.
March 10, 1959, after a trial in the circuit court for Baker County upon an indictment, which the state claims charged the defendant in proper form with the felony of perjury, the jury returned a verdict of guilty. Immediately following the filing of the verdict a jury, acting under our Habitual Criminal statute, returned another verdict that found the defendant was the individual who had been adjudged guilty on previous occasions of three other crimes as claimed by the state. One of these other purported crimes, according to the state, was a felony which was committed in Oregon. The other two were committed, so the state claims, in other jurisdictions. The state contends that [402]*402both of them were felonies within the purview of our laws.
April 28, 1959, the circuit court entered judgment which adjudged the defendant guilty of the crime of perjury and sentenced him to life imprisonment. June 15, 1959, the defendant gave notice of appeal. In that manner there was begun a series of legal stratagems which included two appeals to this court (apart from the one at bar), a proceeding for a writ of habeas corpus, and a proceeding for post-conviction relief.
In the post-conviction proceeding the circuit court for Marion County entered a judgment order on October 13, 1961, which recited and ruled:
“(1) That defendant’s Demurrer to plaintiff’s [Cloran’s] first and third causes of action was previously sustained by the Court and that trial was had on the issues presented by plaintiff’s second cause of action.
“(2) That the prior conviction of crime against the plaintiff in the Federal District Court of Idaho was for the crime of Theft from Interstate Commerce and that said conviction was not such as would be a prior conviction of felony within the meaning of the Oregon Habitual Criminal Statute as it existed at the time of the trial of plaintiff in the Baker County Circuit Court.
“(3) That said prior conviction would not therefore support or justify a habitual criminal finding or sentence against plaintiff and that therefore the habitual criminal proceedings against plaintiff, and the sentence imposed pursuant thereto, in the Baker County Circuit Court are void and invalid in their entirety * * *.
“(4) That, by virtue of the above finding and disposition there is no necessity for this Court to decide any further questions raised by plaintiff’s second cause of action.
[403]*403“Wherefore, it is hereby ordered and adjudged that Judgment be entered herein against the plaintiff (Bay Cloran) and in favor of the defendant (Warden Gladden) on defendant’s Demurrer to plaintiff’s first and third causes of action.”
The judgment order vacated the sentence of life imprisonment as void and remanded Cloran (the defendant in the case at bar) to Baker County “for further proceedings in accordance with this judgment.”
March 29, 1962, Cloran filed the motion in arrest of judgment which we have mentioned and which underlies the cause at bar. It stated, in the words which we now quote, the issue which it submitted:
“* * * upon the ground and for the reason that the facts stated in the indictment upon which said verdict was based do not constitute a crime.”
April 26, 1962, the Circuit Court for Baker County sustained the motion in arrest of judgment by an order which declared:
“* * * the facts stated in the indictment returned by the grand jury on December 19, 1958, and seeking to charge the defendant with the crime of perjury, do not constitute a crime, and it is therefore ordered that the jury’s verdict dated March 10, 1959, purporting to find him guilty as charged in the indictment, is vacated and held for naught, and that no judgment be rendered thereon, and the said indictment is hereby in all things set aside and the defendant is restored to the same situation in which he was before the said indictment was found.”
The defendant was not, as we have noted, discharged from custody, but was held, as permitted by ORS 136.830, to await a new indictment if one was returned.
[404]*404The district attorney did not resubmit the case to the grand jury but appealed. The defendant contends that an appeal cannot be taken from an order which arrests the entry of judgment.
ORS 138.060 provides:
“The state may take an appeal to the Supreme Court from a judgment for the defendant on a demurrer to the indictment or from an order of the court arresting the judgment.”
It will be noticed that if the appeal is taken from the disposition of the cause which the court makes in sustaining a demurrer to the indictment the state must see to it that judgment is entered before notice of appeal is given. An order which sustains a demurrer is not final and cannot support an appeal: State v. Davis, 207 Or 525, 296 P2d 240; State v. Berry and Walker, 204 Or 69, 267 P2d 993, 267 P2d 995, 282 P2d 344, 282 P2d 347; and State v. Brown, 5 Or 119.
Although ORS 138.060 restricts appeals by the state to judgments which were entered after demurrers were sustained, it uses the word “order” when it designates the type of ruling, concerning arrest of judgment, that the state may challenge on appeal.
Before the revision into Oregon Bevised Statutes the provision of our laws which is now ORS 138.060 was § 26-1305 OCLA and read as follows:
“An appeal to the supreme court may be taken by the state from the judgment or order of the circuit court, in the following cases:
“(1) Upon a judgment for the defendant on a demurrer to the indictment;
Free access — add to your briefcase to read the full text and ask questions with AI
[401]*401ROSSMAN, J.
This cause is before us upon a motion of the defendant (respondent) for an order dismissing the appeal undertaken by the state (appellant). The appeal challenges an order entered April 26, 1962, by the circuit court for Baker County which arrested the entry of judgment in this ease. The latter is based upon an indictment, returned by the grand jury of Baker County, which charged the defendant with the crime of perjury. Before the defendant moved to arrest judgment a jury had returned a verdict of guilty. The defendant, in support of his motion to dismiss the state’s appeal, argues (1) an order in arrest of judgment, as authorized by ORS 136.810 to 136.840, is intermediate and, therefore, not final as that term is defined in State v. Brown, 5 Or 119, and (2) since the court in this case upon arresting judgment did not order the defendant’s discharge from custody but directed the sheriff to retain him to abide a new indictment in the event one was returned, those circumstances indicate further that the order which the state wishes to challenge is not final.
March 10, 1959, after a trial in the circuit court for Baker County upon an indictment, which the state claims charged the defendant in proper form with the felony of perjury, the jury returned a verdict of guilty. Immediately following the filing of the verdict a jury, acting under our Habitual Criminal statute, returned another verdict that found the defendant was the individual who had been adjudged guilty on previous occasions of three other crimes as claimed by the state. One of these other purported crimes, according to the state, was a felony which was committed in Oregon. The other two were committed, so the state claims, in other jurisdictions. The state contends that [402]*402both of them were felonies within the purview of our laws.
April 28, 1959, the circuit court entered judgment which adjudged the defendant guilty of the crime of perjury and sentenced him to life imprisonment. June 15, 1959, the defendant gave notice of appeal. In that manner there was begun a series of legal stratagems which included two appeals to this court (apart from the one at bar), a proceeding for a writ of habeas corpus, and a proceeding for post-conviction relief.
In the post-conviction proceeding the circuit court for Marion County entered a judgment order on October 13, 1961, which recited and ruled:
“(1) That defendant’s Demurrer to plaintiff’s [Cloran’s] first and third causes of action was previously sustained by the Court and that trial was had on the issues presented by plaintiff’s second cause of action.
“(2) That the prior conviction of crime against the plaintiff in the Federal District Court of Idaho was for the crime of Theft from Interstate Commerce and that said conviction was not such as would be a prior conviction of felony within the meaning of the Oregon Habitual Criminal Statute as it existed at the time of the trial of plaintiff in the Baker County Circuit Court.
“(3) That said prior conviction would not therefore support or justify a habitual criminal finding or sentence against plaintiff and that therefore the habitual criminal proceedings against plaintiff, and the sentence imposed pursuant thereto, in the Baker County Circuit Court are void and invalid in their entirety * * *.
“(4) That, by virtue of the above finding and disposition there is no necessity for this Court to decide any further questions raised by plaintiff’s second cause of action.
[403]*403“Wherefore, it is hereby ordered and adjudged that Judgment be entered herein against the plaintiff (Bay Cloran) and in favor of the defendant (Warden Gladden) on defendant’s Demurrer to plaintiff’s first and third causes of action.”
The judgment order vacated the sentence of life imprisonment as void and remanded Cloran (the defendant in the case at bar) to Baker County “for further proceedings in accordance with this judgment.”
March 29, 1962, Cloran filed the motion in arrest of judgment which we have mentioned and which underlies the cause at bar. It stated, in the words which we now quote, the issue which it submitted:
“* * * upon the ground and for the reason that the facts stated in the indictment upon which said verdict was based do not constitute a crime.”
April 26, 1962, the Circuit Court for Baker County sustained the motion in arrest of judgment by an order which declared:
“* * * the facts stated in the indictment returned by the grand jury on December 19, 1958, and seeking to charge the defendant with the crime of perjury, do not constitute a crime, and it is therefore ordered that the jury’s verdict dated March 10, 1959, purporting to find him guilty as charged in the indictment, is vacated and held for naught, and that no judgment be rendered thereon, and the said indictment is hereby in all things set aside and the defendant is restored to the same situation in which he was before the said indictment was found.”
The defendant was not, as we have noted, discharged from custody, but was held, as permitted by ORS 136.830, to await a new indictment if one was returned.
[404]*404The district attorney did not resubmit the case to the grand jury but appealed. The defendant contends that an appeal cannot be taken from an order which arrests the entry of judgment.
ORS 138.060 provides:
“The state may take an appeal to the Supreme Court from a judgment for the defendant on a demurrer to the indictment or from an order of the court arresting the judgment.”
It will be noticed that if the appeal is taken from the disposition of the cause which the court makes in sustaining a demurrer to the indictment the state must see to it that judgment is entered before notice of appeal is given. An order which sustains a demurrer is not final and cannot support an appeal: State v. Davis, 207 Or 525, 296 P2d 240; State v. Berry and Walker, 204 Or 69, 267 P2d 993, 267 P2d 995, 282 P2d 344, 282 P2d 347; and State v. Brown, 5 Or 119.
Although ORS 138.060 restricts appeals by the state to judgments which were entered after demurrers were sustained, it uses the word “order” when it designates the type of ruling, concerning arrest of judgment, that the state may challenge on appeal.
Before the revision into Oregon Bevised Statutes the provision of our laws which is now ORS 138.060 was § 26-1305 OCLA and read as follows:
“An appeal to the supreme court may be taken by the state from the judgment or order of the circuit court, in the following cases:
“(1) Upon a judgment for the defendant on a demurrer to the indictment;
“(2) Upon an order of the court arresting the judgment.”
[405]*405We quote the following from 24 CJS, Criminal Law § 1553, page 378.
“An order arresting judgment does not operate as an acquittal, except where no evidence has been shown sufficient to charge accused with any offense. Its effect is to set aside all proceedings previously had in the case or at least all proceedings subsequent to the error discovered so that ordinarily its legal effect is to place accused, as nearly as other and controlling rules of law will permit, in the same situation as he was before the indictment. Stated differently, the legal effect of arresting judgments is to vacate verdicts, judgments, or sentences of imprisonment on defective warrants, and also to vacate a plea of guilty. On entry of the order accused must be discharged, unless he is detained in custody by some other legal process or order, which it is in the power of the court to make.”
The defendant does not claim that the court had no power to make the order which now detains him. We think that it is clear that the order which the notice of appeal seeks to challenge does not lack finality merely because it did not order the defendant’s release.
The question remains as to whether the order which the state seeks to attack lacks finality merely because OKS 138.060 terms it an “order.” We believe that the “order” is in the nature of a judgment.
Commonwealth, Appellant v. Pflaum, 48 Pa. Superior Ct. 370, reasoned:
“In Benjamin v. Armstrong, 2 S & R 392, Chief Justice Tilghman said: ‘It has several times been decided by this court that a writ of error will lie on a judgment arrested; because the order to arrest the judgment is in the nature of a judgment; it makes an end of the controversy.’. This was said in a civil case, but it is equally well settled that [406]*406the principle is applicable in criminal cases, and that for error in arresting judgment, after verdict of guilty, the commonwealth may remove the record for review * *
Pillsbury Etc. Co. v. Walsh, 60 Ind App 76, in ruling adversely to a respondent who contended that no appeal will lie from an order that arrests judgment, declared:
“It seems to be well settled, however, that such an order puts an end to the case in the court below, and is a disposition of the case from which an appeal will lie.”
Daugherty v. Midland Steel Co., 23 Ind App 78, in dealing with the same problem, said:
“The controversy was ended between the parties so far as the court below could do anything in this case to terminate it. The case had reached such an end in the court below that under the precedents and authorities in this State an appeal would lie.”
See to the same effect The State v. Foster, 2 Mo 135, and Benjamin v. Armstrong, 2 Pa 391, in which it is stated:
“It has several times been decided by this court, that a writ of error will lie on a judgment arrested; because the order to arrest the judgment is in nature a judgment; it makes an end of all proceedings.”
See also People v. Lauman, 210 P 421.
We take the following from 4 CJS, Appeal and Error, § 123, page 393:
“In some cases it has been held that a writ of error will lie at common law to an arrest of judgment, as the order to arrest is in the nature of a judgment and makes an end of all proceedings. In other jurisdictions, however, a judgment or order [407]*407granting a motion in arrest of judgment is not regarded as a final judgment, and an appeal or writ of error will not lie therefrom, unless it is allowed, as in some jurisdictions, by special statutory provisions or rule of court.”
Johnson et al v. Fernandes, 79 Fla 508, and Hershey Chocolate Co. v. Yates, 196 Ala 657, are the only decisions which have come to our attention that held orders in arrest of judgment were not final. We think that the circumstances of each of those cases were special. They are not counterparts of the case before us.
It is our belief that the challenged order was final and in the nature of a judgment. It returned the case to the status which it possessed before the trial began and expunged the verdict.
The motion to dismiss the state’s appeal is denied.