State v. Martin , 54 Or. 403 ( 1909 )

On Motion to Dismiss.

[100 Pac. 1106.]

Opinion by

Mr. Chief Justice Moore.

1. This is a motion to dismiss an appeal. The errors relied upon in the brief of defendant’s counsel, to secure the reversal of a judgment of conviction in a criminal action, relate to the admission of evidence; but as the transcript contains no bill of exceptions, and none appears to have been settled or allowed by the trial court, the alleged errors are unavailing. State v. Kline, 50 Or. 426 (93 Pac. 237.)

2. The defendant’s counsel now requests permission to challenge the sufficiency of the indictment, which, it is asserted, appears from an examination of a copy of the judgment roll to be inadequate. The district attorney resists the application, contending that, where errors declared to have been committed in the trial of a cause are based upon evidence not contained in the bill of exceptions, the judgment ought to be affirmed, citing in support of that principle the cases of Fisher v. Kelly, 26 Or. 249 (38 Pac. 67), and Miles v. Swanson, 47 Or. 213 (82 Pac. 954), which were civil actions. In criminal causes the statute prescribes the several grounds of .demurrer to an indictment (Section 1357, B. & C. Comp.), and provides that when the defects so enumerated appear on the face of the pleading they can be taken advantage of only by demurrer, “except that the objection to .the jurisdiction of the court over the subject-matter of the indictment, or that the facts so stated do not constitute a crime, may be taken at the trial, under a plea of not guilty and in arrest of judgment.” Section 1365, B. & C. Comp. In construing such exception in State v. Mack, 20 Or. 234 (25 Pac. 639), and in commenting upon the sufficiency of an indictment, Mr. Chief Justice Steahan says: “But' here the error is in the judgment roll, in the indictment itself, in that it fails to charge a crime. Such an error is not waived by silence or cured by judgment.” A headnote to that case is as follows: “The objection that the facts stated in an indictment do not constitute a crime may be taken for the first time in the appellate court, and is not waived by failing to demur or move in arrest of judgment in the trial court.” The language last quoted may seem broader than the opinion warranted; but we believe it to have been a correct statement of the law, and adopt the expression as applicable to the case at bar.

3. The errors relied upon to secure the reversal of a judgment in a criminal action ought to be clearly assigned by the appellant, so that the district attorney would have notice thereof and be prepared to controvert the principles involved.

Decided August 17, 1909.

The defendant, Edward Hugh Martin, was convicted of the crime of manslaughter, and from the judgment and sentence following, he appeals.

For appellant there was a brief over the names of Mr. John A. Jeffrey, Mr. Seneca Fouts, Mr. Clinton A. Ambrose and Mr. Charles E. Lenon. with an oral argument by Mr. Jeffrey. For the State there was a brief over the names of Mr. Andrew M. Crawford, Attorney General, Mr. George J. Cameron, District Attorney, Mr. John J. Fitzgerald, and Mr. J. H. Page,- Deputy District Attorneys,- with an oral argument by Mr. Page.

4. Where, however, it is insisted in this court, for the first time, that the facts stated in the indictment do not constitute a crime, or that the trial court did not have jurisdiction of the subject-matter of the offense charged, such objections can be urged, though not assigned.

The motion should be denied; and it is so ordered.

Motion Denied.