Alexander v. Gladden

• Decision Date: 05 October 1955
• Citation: 288 P.2d 219,205 Or. 375
• Parties: Application for a Writ of Habeas Corpus of Bernard L. ALEXANDER, Appellant, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Respondent.
• Court: Oregon Supreme Court

Page 219

288 P.2d 219

205 Or. 375

Application for a Writ of Habeas Corpus of Bernard L ALEXANDER, Appellant, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Respondent.

Supreme Court of Oregon.

Oct. 5, 1955.

Steve Anderson, Salem, argued the cause and filed a brief for appellant.

Wolf D. von Otterstedt, Asst. Atty. Gen., for Oregon argued the cause for respondent. With him on the brief was Robert Y. Thornton, Atty. Gen., for Oregon.

Before WARNER, C. J., and TOOZE, ROSSMAN, LUSK, BRAND and LATOURETTE, JJ.

BRAND, Justice.

The plaintiff, Bernard L. Alexander, filed in the Circuit Court for Marion County a petition for a writ of habeas corpus. The writ, directed to Clarence T. Gladden, Warden of the Oregon State Penitentiary, was issued forthwith and the defendant Gladden filed a return thereto. Demurrers were sustained to the amended traverse and to the second amended traverse. The plaintiff waived time to plead over. The writ was dismissed and the plaintiff was remanded to the custody of the warden. Plaintiff appeals.

The petition for the writ was properly omitted from the abstract. The return of the warden was improperly omitted, but was supplied by the supplemental abstract filed by the defendant. The issues are made up by the return, the traverse thereto and the demurrer to the traverse. Huffman v. Alexander, 197 Or. 283, 290, 251 P.2d 87, 253 P.2d 289. The return of the warden sets forth that he has the plaintiff in custody pursuant to a judgment in the Circuit Court of Jefferson County dated 29 January 1953. The journal entry of the judgment was incorporated in the writ. It reads as follows:

'Now on this the 29th day of January, 1953, the defendant, Bernard L. Alexander, appeared in open Court in the court house in Bend, Deschutes County, Oregon, in the custody of the Sheriff of Deschutes County, also Present were Honorable Ralph S. Hamilton, Circuit Judge, Charles E. Boardman, attorney for defendant, and E. D. Harris, District Attorney of Jefferson County, Oregon.

'Whereupon, it appearing to the Court that upon the 13th day of January, 1953, the defendant Bernard L. Alexander had entered a plea of not guilty to an indictment (returned by the Grand Jury of Jefferson County, Oregon on the 5 day of January, 1953) charging the defendant with burglary of a dwelling house.

'And Now on this the 29th day of January, 1953, Mr. Charles E. Boardman, attorney for defendant, stated in open Court that it was the desire of the defendant that he be permitted to change his plea from not guilty to guilty as charged in said indictment. The defendant and his counsel also requested in open Court that said defendant be permitted to enter said plea of guilty forthwith in Bend, Deschutes County, Oregon, rather than in Madras, Jefferson County, Oregon.

'Thereupon the Court being fully advised in the premises asked the defendant if he were ready to enter his plea to said indictment. And fully advised, the defendant concerning all of his rights herein. Defendant then waived time within which to plead and entered his plea of guilty as charged.

'The Court further explained that defendant was entitled to delay before being sentenced upon his plea of guilty. Defendant stated that he desired to have sentence imposed at once and the matter disposed of. Before pronouncing sentence the Court heard the District Attorney's statement as to the facts involved in the charge set forth in the indictment and other facts concerning defendant's previous conduct and record. Mr. Boardman attorney for defendant, made a statement and the defendant made a statement in his own behalf.

'Upon being fully advised concerning the facts and circumstances herein the Court gave the defendant a final opportunity to state any reason he might have as to why sentence should not now be imposed upon him. The defendant had nothing further to say and requested the Court to pass sentence upon him forthwith.

'Now, Therefore, It Is Ordered And Adjudged: That the defendant, Bernard L. Alexander, be confined in the Penitentiary of the State of Oregon at Salem, Oregon, for a period of not exceeding five (5) years. The defendant was remanded to the custody of the Sheriff of Jefferson County, Oregon for delivery to the Warden of the State Penitentiary at Salem, Oregon.'

The judgment was signed by The Honorable Ralph S. Hamilton, Circuit Judge. The record shows that plaintiff was indicted in Jefferson County. The defendant in his return alleges and the plaintiff admits that the imprisonment has not expired or been terminated in any way. Plaintiff in his traverse affirmatively alleges:

'IV.

'That the restraint and imprisonment of petitioner is not by any judgment of a court of competent jurisdiction (as will be more specifically alleged hereinafter), or body having authority in the premises, nor by an order accusing the petitioner of contempt of court officer or other tribunal.

'V.

'That as shown by the Order attached to respondent's Writ, petitioner was charged with a crime in Jefferson County, Oregon; that as further shown by said Order, he thereafter appeared before the Circuit Court in Bend, Deschutes County, Oregon; that no Information or Indictment had been filed against petitioner in Deschutes County; that no Motion for change of venue had been filed asking for a transfer of the case from Jefferson County to Deschutes County; that no written request of the accused and his attorney, with one day's notice to the District Attorney, had been made to the Circuit Judge in Deschutes County; (as required by O.R.S. 135.840) that no proceedings whatsoever had been instituted whereby the Circuit Court in Deschutes County could acquire jurisdiction to hear a plea from petitioner; that nonetheless, the Circuit Court of Deschutes County, though without jurisdiction by virtue of the foregoing, wrongfully and illegally accepted a plea of guilty from petitioner and entered the Order of July 23, 1953 upon which respondent relies in his restraint of petitioner; that no constitutional or statutory authority or power existed at such time, allowing such procedure, and by virtue thereof the Order sentencing petitioner to the Oregon State Penitentiary was void and invalid, and as a result thereof, petitioner was denied his constitutional rights and guaranties of due process of law and the further constitutional rights and guaranty of Article I, Sec. 2, Oregon State Constitution; that as a result of the premises, petitioner is now unlawfully held by the respondent in the Oregon State Penitentiary.'

We are at a loss to understand the plaintiff's reference to the Order of July 23, 1953. In truth, the Judgment Order on which the warden relies was dated January 29, 1953. In short, the record shows (1) indictment in Jefferson County for burglary committed in that county; (2) order increasing bail and for the arrest of Alexander made in Jefferson County and signed by Judge Hamilton; (3) arraignment in Jefferson County and plea of 'not guilty'; (4) appearance of Alexander in person and by his attorney in Bend, Deschutes County, before Judge Hamilton, at which time he prayed for leave to withdraw his plea of 'not guilty' and to plead guilty and be sentenced in Deschutes County; (5) entry of plea of guilty in Deschutes County; (6) sentence to penitentiary by Judge Hamilton in Deschutes County; (7) entry of said judgment in Jefferson County.

We take judicial notice that the 18th Judicial District comprises two counties, Deschutes and Jefferson, and that Judge Hamilton is the only regular judge in that district and sits in both counties. The highly technical contention of the plaintiff is based upon the provision of ORS 135.840(2):

'(1) Except as provided in subsection (2) of this section, a plea of guilty shall in all cases be put in by the defendant in person in open court unless upon an indictment against a corporation, in which case it may be put in by counsel.

'(2) Any circuit judge may, within any county in his own district other than the county where the accusation is pending, accept pleas of guilty from persons charged with felonies and pass sentence thereon upon written request of the accused and his attorney and upon not less than one day's notice to the district attorney. All orders entering such pleas and such sentences shall be as effective as though heard and determined in open court in the county where the accusation is pending and shall be transmitted by the judge to the clerk of the court in the county where the accusation is pending, whereupon the same shall be filed and entered and become effective from the date of filing thereof.' ORS 135.840.

Plaintiff contends that the judgment on the plea of guilty pronounced in Deschutes County was not only erroneous, but was void, because the request, though made in open court by the accused and by his attorney, was not in writing, and was made without one day's notice to the District Attorney of Jefferson County. This, he argues, in spite of the fact that judgment on plea of guilty was rendered in Deschutes County before the very same judge who would have heard the case if it had been presented in Jefferson County in the same district and although the District Attorney of Jefferson County was present in court at Bend, Deschutes County, at the time of the sentence. Plaintiff also contends that he was deprived of his constitutional right to trial in the county in which the offense was committed, as provided by Oregon Constitution, Article I, § 11.

We will first take up the constitutional issue and will then consider the effect of the statute.

The word 'trial' has been used to identify various steps in the judicial process, its meaning being dependent on the statutory context. The word appears in the constitutional guaranty of 'public trial by an impartial jury in the county in which the offense shall have been committed'. Oregon Constitution, Article I, § 11. If we are to assume that the act of a court in...