Judges： Brand, Latourette, Warner, Ltjsk, Rossman, Perry, Tooze
Filed Date： 6/17/1954
Status： Precedential
Modified Date： 11/13/2024
The defendant, Bonnie Lee Kuhnhausen, appeals from a judgment of conviction for the crime of murder in the second degree. She was sentenced to life imprisonment.
On January 18, 1952, defendant and one Elmer Dorsey Williams were arrested in Portland, Oregon, and placed in jail as suspects in the beating two days earlier of one Jalmar Tarkia. Tarkia died on January 19, 1952, as the direct result of the beating which he had received. The State contended that the motive for such beating was robbery.
Upon this appeal defendant alleges four assignments of error as follows:
“1. The Court erred in denying the motions for dismissal of the indictment on the grounds that the same was not tried in the next term of Court from whence the cause was commenced, and that there had been a failure of prosecution.
“2. The Court erred in denying the motion for an order requiring that appellant be tried on the*487 original indictment returned against her by the Grand Jury on January 24, 1952.
“3. The Court erred in granting, over appellant’s objections, the State’s request that the witness Wampler be permitted to erect in the court room his own projector and screen, and to project on the screen a number of colored transparencies, (Ex. 17-24 inclusive, and 33) previously admitted in evidence.
“4. The Court erred in denying the motions for directed verdict on the grounds that the State had failed to show directly or circulstantially [sic] (a) that appellant was involved in the case as a principal, (b) that appellant was involved in the case as an accessory, and (c) that there was any robbery in connection with the death, and that the State had failed to show that a crime had been committed (Tr. 296-300, 479); and the Court erred in failing to give Appellant’s Requested Instruction No. 1, to which ruling appellant duly excepted (Tr. 540), and which instruction was as follows:
“ ‘You are instructed to return a verdict of “Not Guilty” as to all the charges included within the indictment in this case.’ ”
In view of the disposition we are compelled, under the law, to make of this case, it is unnecessary for us to discuss the evidence introduced upon the trial of defendant, or to otherwise outline the facts of the case. It is sufficient to state that a careful review of the trial record convinces us that there was substantial evidence to support the verdict, as well as substantial evidence from which the jury might have found the defendant “not guilty”. This would dispose of defendant’s assignment of error numbered “4”, were that question properly before us. Moreover, if we were required to consider defendant’s assignment of error numbered “3”, it would be our conclusion that
It is upon assignments of error numbered “1” and “2”, and particularly upon assignment of error numbered “1”, that we must base our decision. That requires a discussion of the record made prior to trial of the case.
On January 24,1952, the grand jury for Clackamas county returned an indictment against Williams and defendant, jointly accusing them of the crime of murder in the first degree. On February 4, 1952, defendant, upon arraignment, pleaded “not guilty” to said indictment. On behalf of her codefendant Williams, a demurrer to the indictment was filed, it being contended that the indictment did not conform to the requirements of ch 7 of title 26, OCLA (OES 132.510, et seq.). Under date of February 13, 1952, the demurrer was sustained, and in its order sustaining the demurrer the trial court directed that the indictment as to Williams be resubmitted to the grand jury pursuant to the provisions of §§ 26-826 and 26-827, OC LA (OES 135.530 and 135.540). Thereafter, on February 14, 1952, the district attorney for Clackamas county moved the court for an order resubmitting the indictment to the grand jury as to the defendant Kuhnhausen, and on February 19, 1952, the trial court entered an order so resubmitting the indictment and further ordering “that pending action by said grand jury, that the defendant, Bonnie Lee Kuhnhausen, be held in custody without bail.”
On February 20, 1952, the grand jury returned an indictment against Williams and defendant, jointly charging them with the crime of murder in the first degree. To this indictment, defendant entered a plea
Under the statutes of this state, there are four regular terms of the circuit court for Clackamas county each year, each term being for a period of three months. The first term in each year commences on the first Tuesday in January and continues until the first Tuesday in April; the April term continues uptil the first Tuesday in July; the July term, until the first Tuesday in October; and the October term, until the first Tuesday in January following. § 93-254, OCLA (OES 4.150).
On March 31, 1952, the trial court entered a general order continuing all cases not tried during the first term of court in 1952 over to the following term on the ground, as stated in the order, “that the Court did not have time to dispose of such cases during the first term”.
The district attorney elected to try the case against the defendant Williams first. This trial commenced on April 20, 1952, resulting in a verdict of guilty of murder in the second degree. A special jury panel was drawn for the purposes of the Williams trial.
On March 4, 1952, and again on May 9, 1952, by letters adressed to the circuit court, the district attorney requested that a trial date be set for the trial of defendant. His applications were timely and in accordance with the practice in such cases.
On June 30, 1952, the trial court entered another general order continuing all criminal cases not tried
On July 30, 1952, defendant filed a motion, supported by affidavit, to dismiss the ease against her on the grounds “that the same was not tried in the next term of Court from when the cause commenced, and that there has been a failure of prosecution”.
On said July 30, a hearing was held by the court upon such motion, the defendant being personally present at such hearing and represented by counsel. The State appeared by the district attorney. Testimony of the county clerk and some exhibits were admitted in evidence to support the continuance of the trial of defendant over the second term of court. The court denied the motion.
The case was set for trial for August 18, 1952, some six months after defendant had entered her plea of “not guilty” to the indictment. In the meantime, defendant remained in jail, the charge against her being a nonbailable offense.
On August 18, and before a jury had been empaneled to try the case, defendant renewed her motion for a dismissal of the indictment against her on the same grounds urged in her motion of July 30. Her motion was denied, and the trial proceeded to verdict and judgment. Defendant duly excepted to the several rulings of the court.
The record discloses that during the January and April terms of court, only one criminal case was tried to a jury. Some 33 criminal cases were disposed of upon pleas of guilty, and without jury trial. A large number of civil cases were tried to juries. On the first of May, 1952, the trial court set a number of civil cases
Upon the hearing on defendant’s motion of July 30, the trial court made the following statement for the record:
“Well, as a matter of fact, Mr. Jacobs, the record shows that immediately upon the trial of the Williams case being completed, within approximately a week or ten days thereafter, the District Attorney requested the Court to set a trial date in the Kuhnhausen case. I have been set up about two or three months in advance since the first of the year, which means that on a request being made on the 9th of May that, as the average prevailed at that time and I have no independent recollection of it, that it would almost necessarily be carried into the next term of court unless I took cases off the docket that were already previously set” (Italics ours.)
The record shows that the cases referred to by the court as having been set for trial were all civil cases.
It will be noted that after completion of the Williams trial more than two months remained of the April (or second) term of court. Nearly two months of the term remained after the district attorney had made his request of May 9 for a trial date.
Article 1, § 10, Oregon Const., provides:
“No court shall be secret, but justice shall be administered openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation.”
A defendant in a criminal action is, by this constitutional provision, guaranteed a speedy trial. State
From the very earliest times the right of an accused person to a speedy trial has been recognized. In the United States it is guaranteed by constitutional and statutory provisions. It is a fundamental right, and one not subject to judicial discretion. It extends to all persons accused of crime, to the guilty as well as to the innocent.
There is no general principle that fixes the exact time within which a trial must be had to satisfy the requirement of a speedy trial. The term “speedy”, or its equivalent, as employed in constitutional provisions guaranteeing a speedy trial to accused persons, being a term of indeterminate meaning, permits legislative definition to some extent. Statutes providing for a discharge of accused unless trial is had within a stated time after indictment, or which require an indictment or information within a stated time, are enacted for the purpose of enforcing the constitutional right, and they constitute a legislative construction or definition of the constitutional provision and must be construed fairly to the accomplishment of that end. 22 CJS 715, Criminal Law, § 467 (3).
Section 26-2002, OCLA (ORS 134.120) has for its sole purpose the enforcement of the right of an accused person to a speedy trial as guaranteed by § 10, Art 1, Oregon Const., supra. The statute was adopted by the legislature of this state in 1864 and has not been amended or altered in any respect since that time. It 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,*493 after it is found, the court must order the indictment to be dismissed, unless good cause to the contrary be shown.” (Italics ours.)
It is interesting to note that the foregoing statute is almost identical in terms with one adopted by the Oregon territorial legislature. Section 29 of ch XXXVI, Statutes of Oregon Territory, 1854. Our constitution was adopted September 18,1857, and, by Act of Congress, Oregon was admitted to the Union as a state on February 14, 1859. Section 7 of Art. XVTII, of our original constitution, provided:
“All laws in force in the territory of Oregon when this constitution takes effect, and consistent therewith, shall continue in force until altered or repealed.”
No attempt was made to legislate generally for the state until the legislative session of 1864, when á complete new code of laws was adopted. § 26-2002, OCLA, supra, was a part of that code.
This statute constitutes the legislative construction and definition of the constitutional provision (§ 10, Art 1, Oregon Const., supra), and, to all intents and purposes, having been adopted contemporaneously with the adoption of the constitution, it must be read into and considered a part of the constitutional guaranty. State v. Swain, 147 Or 207, 214, 81 P2d 745, 32 P2d 773, 93 ALR 921.
The command of the statute is mandatory. If a defendant be not brought to trial at the next term of court in which the indictment is triable, after it is found, no good cause to the contrary being shown, the court must order the indictment to be dismissed; it has no discretion in the matter. In view of the constitutional provision and the terms of the statute, the duty
We have held that the constitutional and statutory provisions do not necessarily require the trial of an accused person within the term of court in which the indictment is returned. State v. Breaw, supra. But the trial must be held during the. following term, unless good cause to the contrary be shown, or unless the trial is postponed upon the application of the accused or by his consent.
Under the mandatory provisions of the statute, the defendant should have been tried at the latest during the April term of the court. The defendant did not apply for a continuance of the case over that term and into the July term; neither did she consent to a continuance-beyond the April term. When “consent” of a defendant to a continuance for trial is claimed, an express consent, as distinguished from an implied consent, must be shown. In State v. Chadwick, 150 Or 645, 650, 47 P2d 232, we said:
“The law imposes no duty on a defendant, charged with a crime, of calling his case for trial or insisting that it be set for trial at any particular time. That duty devolves upon the state. When the state sees fit to charge a defendant by indictment with the commission of a crime, it is equally the duty of the prosecutor to see that defendant is arraigned and enters a plea and speedily brought to trial, as it is to charge him with the offense in the first place: State v. Rosenberg, 71 Or. 389 (142 P. 624); In re Clark, 79 Or. 325 (154 P. 748, 155 P.*495 187). We think that consent means an express consent on the part of defendant that the case be continued: State v. Barrett, supra [121 Or 57, 254 P 198].”
It remains for us to discuss what constitutes “good cause” for a continuance of a criminal trial beyond the court term next following the term in which the indictment is returned.
As we have before noted, the only cause assigned by the trial court for continuing defendant’s trial into the July term of court was that he had civil cases set for trial, and in order to try defendant before August 18, it would have been necessary to take one or more of the civil cases off the trial docket.
Ordinarily, this court will not review the findings of the circuit court as to whether good cause has or has not been shown, but where the record shows the cause that existed why the case should be continued, then this court will consider whether the reason found by the court for the continuance is sufficient upon which to base an order denying dismissal of the indictment. State v. Chadwick, supra; State v. Barrett, supra; State v. Bateham, 94 Or 524, 186 P 5. In State v. Goldstein et al., 111 Or 221, 224, 224 P 1087, this court had before it for consideration a general order of the trial court continuing all cases not tried and disposed of until the next regular term of court, “because o.f the lack of time on the part of the court to hear and dispose of the same * * As to this order, we said:
“In the absence of any showing to the contrary, and there is none, we assume that this record, made by a court of general jurisdiction, is a verity; and such entry has been held to be sufficient; State v.*496 Bertsehinger, 93 Or. 404 (177 Pac. 63).” (Italics ours.)
In the instant case the reason for the continuance as well as for the denial of defendant’s motion to dismiss the indictment, as above stated, clearly appears from the record made by the court at its own instance upon hearing of the motion to dismiss.
Did the reason assigned by the court for its action constitute “good cause” for the continuance?
We find that it did not. By virtue of the constitutional provision guaranteeing a speedy trial to an accused person, and the statutory definition and construction of such constitutional guaranty, criminal trials have a preference over the trial of civil cases. The fact that a number of civil cases has been set for trial is no valid excuse for the failure to set promptly for trial a criminal case that is at issue, if necessary to comply with the mandatory provisions of the statute. In order to afford the defendant a speedy trial in this case, and to thus preserve and protect her constitutional right, it was the duty of the court, if necessary, to take one or more of the civil cases off the docket.
Although the constitutional provision itself makes no distinction between civil and criminal cases as to the right of a speedy trial, nevertheless, by virtue of the provisions of § 26-2002, OCLA (ORS 134.120), supra, a clear distinction exists, and by reason thereof, the trial of a criminal case does have the preference over the trial of a civil case, insofar as it is necessary to comply with the provisions of the statute. Our code contains no statute similar to § 26-2002, OCLA (ORS 134.120), supra, as to civil cases in general.
We are not unmindful of what this court said in State v. Lee, 110 Or 682, 684, 224 P 627. There the court
((The force of this order is not overcome by anything of record. The law does not give criminal cases the ‘right of way’.” (Italics ours.)
Then, after quoting Art 1, § 10, Oregon Const., supra, the court stated:
“The right guaranteed by our fundamental law for a ‘speedy’ hearing applies alike to civil and criminal causes.”
We acknowledge the fact that the unequivocal statement that “The law does not give criminal cases the ‘right of way’ ”, and the further statement that “the right guaranteed by our fundamental law for a ‘speedy’ hearing applies alike to civil and criminal causes”, might well be misunderstood and create some confusion. It is true that the constitution does not, nor does any statute of this state, expressly provide that the trial of criminal cases shall have precedence over the trial of civil cases, but it is manifest that the effect of the provisions of §26-2002, OCLA (ORS 134.120), supra, is to give such preference. There is sound reason for this preference. Civil cases usually have to do with problems of money, property, or status, whereas criminal cases involve the personal liberty, freedom, and often, life of the individual. Since Magna Charta the protection of the life, liberty, and freedom of the individual has ever been the primary concern of the English-speaking world, the basis for and substance of the Bill of Rights incorporated into the federal and several state constitutions. It is obvious that if the trial of criminal cases did not take precedence over the
In this connection it also is highly, significant that, although there is no statute which directly or indirectly gives hearings on criminal appeals a preference over hearings in civil cases in this court, nevertheless, in order to further enforce the constitutional right of an accused person to a speedy trial, we have, by unwritten rule, ever recognized such right of preference.
In what we have said, we do not wish to be understood as holding that in every case the constitutional right of an accused person to a speedy trial will be satisfied by setting the trial in the next term of court following the term in which the indictment was returned. Wholly apart from the statute, the constitutional right of an accused person to a speedy trial contemplates a trial conducted according to fixed rules, regulations, and proceedings at law, free from vexatious, capricious, and oppressive delays. The right is consistent with delays, and, in the final analysis, whether such a speedy trial has been afforded must be determined in the light of the circumstances of each particular case as a matter of judicial discretion. In such cases the provisions of the statute not being in question, the action of the trial court will not be disturbed unless the record clearly discloses an abuse of discretion. In cases involving nonbailable offenses and, particularly, where the defendant himself requests an early trial, delays without good cause should not be countenanced. State v. Clark, 86 Or 464, 470, 168 P 944; 22 CJS 715, Criminal Law, § 467(b), (3); 14 Am Jur 859, Criminal Law, § 135.
“* * * An affidavit was filed on behalf of defendant attempting to show that the court might have tried the cases and to avoid the effect of the several orders of continuance above mentioned. No direct attack has ever been made against the validity of these orders, and we do not think that the order continuing any case could be attacked collaterally. The order above quoted, appearing in the journal, was signed and approved in open court by the presiding judge at the end of each term.
“It is a well-settled rule that an order appearing in the journal of the court is taken by this court as an absolute verity. State v. Moltzner, 140 Or. 128, 13 P. (2d) 347; * * (Italics ours.)
In State v. Moltzner, supra, at page 136, the court, speaking through Mr. Justice Kelly, stated:
“Affidavits were displayed by counsel for defendant at the argument of the case to the effect that the orders of continuance made at the close of each term, as aforesaid, were entered pursuant to a practice which had prevailed for many years and that no judge had informed affiants that such order had been made. This is entirely insufficient to impeach the record of the court. In order to be controlling, such impeachment must be made by the court itself.
i i * # & * *
“The statement, that lack of time on the part of the court required a continuance of the unfinished*500 business, is in itself good cause for not dismissing pending indictments: State v. Bertschinger, 93 Or. 404 (177 P. 63); State v. Lee, 110 Or. 682, 687, (224 P. 627); State v Bateham, 94 Or. 524 (186 P. 5); State v. Goldstein et al., 111 Or. 221 (224 P. 1087). If such a statement, appearing as it does in the journal of the court, is false, or was inserted without authority, application to correct the entry should'have been made to the circuit court. In the absence of any order expunging it, we are bound by it. *Until impeached by the court, itself, it imports verity’. State v. Gilbert, supra [55 Or 596, 112 P 436]; Ex parte Jerman, 57 Or. 387, 402 (112 P. 416, Ann. Cas. 1913A, 149), and eases there cited; Ollschlager’s Estate, 50 Or. 55 (89 P. 1049); Elliott’s Appellate Procedure, § 186.” (Italics ours.)
When read in the light of our prior decisions, the holdings in State v. German and State v. Moltzner, with one exception, do not announce any new law in this state. We have consistently held that these orders import verity “in the absence of any showing to the contrary”. The addition of the word “absolute” before the word “verity” in State v. German adds nothing to the rule. The statement in State v. Moltzner that “in the absence of any order expunging it, we are bound by it” is not the law of this state and is expressly overruled. If the record in the proceeding itself impeaches the order, this court certainly is not bound by it.
The statement in State v. German that “no direct attack has ever been made against the validity of these orders” manifestly refers to something other than the rule of verity attached thereto. It is elementary that these orders should not be subject to collateral attack.
Furthermore, the concluding paragraph of the opinion in State v. German shows that this court actu
“The facts and the record in these cases show good cause existed for not proceeding with these indictments, and the judgment of the circuit court is affirmed.”
As to these general orders, it is obvious that they must be deemed to have been entered in each particular case affected thereby, as a part of the record in such case, to all intents and purposes as though a separate entry had actually been made in the case. Otherwise, they could not affect in any way the case in question.
The record in a criminal case commences with the return of an indictment and includes each and every step in the proceedings thereafter taken up to and including actual trial and judgment. An order for continuance is an integral and important part of such proceedings, directly affecting the state, as well as the accused; it is a part of the “record”.
It would seem to require no argument to establish the proposition that a motion to dismiss an indictment for failure to prosecute is a direct attack upon and challenge to the entire record, including an order of continuance. A hearing upon such a motion, and the evidence offered in connection therewith, if any, together with any order entered with respect thereto, also become a part of the record in the case. When we are called upon to examine that record, as we are on an appeal, we view it in its entirety, not in piecemeal. If the record as a whole disputes the facts stated in the order for continuance, that order no
In the instant case, and as before noted, the trial court itself offered and received testimony upon the hearing of the motion to dismiss in support of its general order of continuance; in effect, the trial court itself impeached the order in question.
Upon the record before the trial court in the instant case, it was its mandatory and constitutional duty to dismiss the indictment against the defendant upon her motion for such dismissal. When all is said and done, the statutory requirement respecting the time an accused person must be brought to trial is a salutary rule adopted in the interests of the public, as well as in the interests of accused persons. It is a rule that must be obeyed,
The disposition we are compelled to make of this case renders unnecessary a discussion of defendant’s assignment of error numbered “2”. However, we do find from a review of our prior decisions that that particular assignment is without merit.
The question of whether defendant has been in jeopardy, in the light of the disposition we must make of the case on this appeal, is not before us for determination and, therefore, upon that matter we express no opinion.
The judgment of the trial court is reversed and this cause remanded with directions to dismiss the indictment and discharge the defendant.