State v. Moss

181 P. 347, 92 Or. 449, 1919 Ore. LEXIS 127

• Court: Oregon Supreme Court
• Decided: June 10, 1919
• Status: Published

Opinion

JOHNS, J.

Article I, Section 10, of the Constitution provides:

“No court shall be secret, but justice shall be administered openly and without purchase, completely and without delay.”

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

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

The defendant was “not brought to trial at the next term of the court in which the indictment” was triable and he now contends that for such reason the cases against him should be dismissed. It appears from the record that on October 7,1918, such a motion was filed to dismiss and was set for hearing at 1:3Q p. m. of the same day. The journal entry shows that:

“The said defendant appearing in person, as well as by P. J. Gallagher and Geo. S. Sizemore, his attorneys, said defendant at this time asks leave to withdraw the said motion to dismiss, and leave to withdraw being granted, the said defendant, through his said attorneys, stated in open court that he was ready for trial and asked that the said cases be set for trial.”

The order further shows that on the application of the defendant and with his consent the cases were set for trial on Monday, October 14, 1918, at 10:00 a. m. This record must be taken as true. On October 15, 1918, Mr. Thompson, as the sole attorney for the defendant, filed another motion, to dismiss.

It appears from the affidavits of both the state and the defendant that the cases were continued from the October term, 1917, to the April term, 1918, by consent. Mr. Thompson claims that his consent was based on an agreement with the district attorney that the cases would be dismissed at the April term, 1918, and his affidavit as to the facts is clear and specific. In legal effect, the district attorney admits that it was then his purpose to dismiss the indictments at the coming April term, but claims that he reserved the right “until the April term of court to make any final disposition with regard to the ultimate disposition of those cases”;, that the cases were not disposed of at the following April term for the reason that the defendant “absented himself from court and neither asked for nor demanded a trial on either indictment and kept away from court, so that the cases could not be set for trial”; that the term of court did open on the first Monday in April, 1918, and continued and remained open until the first Monday in October, 1918, and that in the first week of September, 1918, he directed and caused the sheriff to notify the defendant to appear in court on Tuesday, the first day of October, 1918, for the purpose of setting the cases for trial. The record shows that the defendant was notified by the sheriff and refused to appear; that by reason thereof the court issued a bench warrant and that in response thereto the defendant appeared in court on October 7, 1918, at which, time the first motion to dismiss was filed. It further appears from the unchallenged affidavit of the district attorney that on the first day of the April term, 1918, the cases against the defendant were called on the docket by the court; that the defendant then appeared by his attorney, P. J. G-allagher; that after some argument and discussion the district attorney stated that L. R. Webster, an attorney who had been employed by the prosecution, was then absent but would “be in attendance upon the court within a day or two,” and that Mr. Webster arrived during the first week of the term and was in attendance upon the court for several days. Before his arrival the defendant absented himself from court, left Harney County and did not again appear during the term, either in person or by attorney.

It further appears by the affidavit of Mr. Thompson that “on Monday, October 8, 1917, before court convened this affiant did relate to Honorable Dalton Biggs, Judge of the above-entitled court, the substance of the agreement between himself and the district attorney,” and that upon the convening of court the district attorney stated “that an agreement had been reached to continue all of said indictments and said reduction of bail in certain cases which were involved in said agreement.”

1. Assuming that the district attorney did make the agreement that the cases should be continued from the October term of 1917 to the April term of 1918, and should then be dismissed as set forth in Mr. Thompson’s affidavit, and that the district attorney did violate the agreement, that would not be, legal or sufficient ground to dismiss the indictments under either Article I, Section 10, of the Constitution or Section 1701, L. O. L. While it may be true that the trial court was advised of its substance, there is no record or evidence which tends to show that the court ever ratified or approved the alleged agreement; and the fact remains that all of the proceedings were heard before the trial judge, who overruled the motions to dismiss the indictments.

2. As he had personal knowledge of all of the proceedings, we think his ruling is entitled to some weight.

3. 4. The eases were continued from the October term of 1917 to the following April term, with the express consent and approval of the defendant. While it is true that he was present at the beginning of the April term, there is nothing to show that he sought or demanded a trial, and the record discloses that pending the arrival of Mr. Webster during the early part of the first week of the term, he absented himself from court arid stayed away for the remainder of the term. 'When he was finally brought into court on a bench warrant he filed a motion to dismiss, because his case was not tried at the April term. Upon the hearing he asked and was granted leave to withdraw that motion and through his attorneys he stated in open court that he was ready for trial and asked to have the cases set for hearing. Upon his application and consent they were set for trial on October 14, 1918. On October 15, 1918, he filed another motion to dismiss, on the identical ground stated in his original motion. In legal effect his withdrawal of the motion to dismiss, with the statement in open court that he was ready for trial and his application and consent to have the cases set for trial on October 14, 1918, constituted a waiver of his right thereafter to insist upon the motions to dismiss the indictments. Under such a state of facts, we do not believe that the defendant’s motions to dismiss come within the terms and provisions of either Section 1701, L. O. L., or Article I, Section 10, of the Constitution.

The judgment of the Circuit Court is affirmed.

Affirmed.

Mr. Justice Benson took no part in the consideration of this case.