State v. Terwilliger

IN BANC. Calvin B. Terwilliger was convicted of an offense, and he appeals. On the State's motion to strike bill of exceptions.

MOTION ALLOWED. This is a motion by the State for an order to strike from the files the bill of exceptions on the ground that the appellant did not present the same within the time for so doing as regulated by 1931 Sessions Laws, chapter 49, which provides:

"* * * A proposed bill of exceptions may be tendered by presenting it to the clerk of the court within sixty (60) days after the entry of the judgment or decree, or within such further time as may be granted by order of the court if application is made during the said period of sixty (60) days or within any extension that may be granted."

The trial order showing the return of the verdict of guilty and continuing the cause for sentence to November 5, 1931, is dated November 2, 1931. November 5, 1931, sentence was imposed, and upon the same day the trial judge signed the order of commitment. January 8, 1932, the defendant obtained an order extending the time for filing a bill of exceptions to and including February 1, 1932. February 1, 1932, he obtained an order extending the time to March 15, 1932. March 14, 1932, the time was extended to March 31, 1932. March 29, 1932, the bill was presented and signed. An order, over the signature of the trial judge, and accompanying the bill of exceptions, recites: "* * * More than sixty days have elasped from the date of the order of commitment and the date of the order extending time for the filing of the bill of exceptions." It is thus evident that a gap occurred between the sixty-day period and the order of January 8, 1932.

1931 Session Laws, chapter 49, amended section 2-703, Oregon Code 1930, which, prior to amendment, read thus:

"* * * A proposed bill of exceptions may be tendered by presenting it to the clerk of the court within sixty (60) days after the entry of the judgment or decree, or within such further time as may be granted by order of the court."

The enactment just quoted was made a part of our laws by 1929 Session Laws, chapter 356. Prior to 1929, our statutes imposed no limitation upon the time within which the circuit court could settle a bill of exceptions, and for that reason the decisions of this court held that the only limitation upon the time was the trial court's sound discretion: Weinstein v. Wheeler, 127 Or. 406 (257 P. 20, 271 P. 733, 62 A.L.R. 574). Following the passage of the 1929 act this court in Pacific Finance Corp. v.Ellithorpe, 134 Or. 601 (280 P. 658, 289 P. 1058), held valid a bill of exceptions settled by the circuit court after the sixty-day period had elapsed, even though no extension had been obtained; and in Senner v. Danewolf, 139 Or. 93 (293 P. 599), we held valid a bill of exceptions presented within an extended time although the extension had not been obtained until the sixty-day period had expired. In both cases we held that the new legislation had not disturbed the discretionary power of the trial judge, and that it did not demand that the extended time must be joined on to the original time without gap by an order made before existing periods had expired. These two decisions were followed by the enactment of 1931 Session Laws, chapter 49. It is very evident that the legislature was dissatisfied with the law as interpreted by our decisions and intended by its 1931 enactment to effect a change. The act now before us is expresed in clear and unambiguous language. In State ex rel. v.Stapleton, 139 Or. 402 (10 P.2d 600), we gave effect to its evident purpose by dismissing a petition for a writ of mandamus which sought to compel a trial judge to settle a bill of exceptions presented after the sixty-day period had elapsed without an extension thereof having been obtained. The plain purpose of the amendment demands that the motion of the State must be allowed.

Fairness to the able lawyer who now represents the defendant suggests that we should not terminate this decision without stating that he was not retained in this litigation until the above noted tardiness had already occurred.

Motion to strike allowed.

BEAN, C.J., RAND, BROWN, CAMPBELL and KELLY, JJ., concur.

BELT, J., absent.