Archerd v. Burk

• Decision Date: 09 October 1934
• Citation: 148 Or. 444,36 P.2d 338
• Parties: ARCHERD v. BURK, Sheriff.
• Court: Oregon Supreme Court

36 P.2d 338

148 Or. 444

ARCHERD v. BURK, Sheriff.

Supreme Court of Oregon

October 9, 1934

In Banc.

Appeal from Circuit Court, Marion County; L. G. Lewelling, Judge.

Habeas corpus proceeding by Charles R. Archerd against A. C. Burk Sheriff of Marion County. From the judgment, the plaintiff appeals.

Affirmed.

C. F. Pruess, of Grants Pass, and Custer Ross, of Salem, for appellant.

William H. Trindle, of Salem, for respondent.

KELLY Justice.

This is an appeal from the judgment of the circuit court for Marion county rendered after trial upon issues joined in a habeas corpus proceeding dismissing the suit and directing that plaintiff be remanded to the custody of defendant as sheriff of Marion county and taken by defendant to the penitentiary to serve a sentence imposed upon plaintiff herein after having been convicted of the crime of larceny by bailee in said circuit court of Marion county, Or.

On February 10, 1933, an indictment was returned against plaintiff by the grand jury of said Marion county charging him with the commission of said crime of larceny by bailee. Upon trial, plaintiff was convicted and sentenced to imprisonment in the penitentiary. Plaintiff attempted to appeal to this court from said judgment of conviction. His appeal was dismissed because of his failure to serve notice of appeal upon the county clerk. State v. Archerd, 144 Or. 309, 24 P.2d 5. The plaintiff then prosecuted an appeal to the Supreme Court of the United States, which, on January 8, 1934, was dismissed for want of a properly presented federal question. 290 U.S. 604, 54 S.Ct 372, 78 L.Ed. 530.

Upon the receipt of the mandate of the Supreme Court of the United States, it was here filed and entered of record, and the mandate of this court was then issued remanding the cause to the circuit court for Marion county with directions to proceed in executing the sentence and judgment against plaintiff herein.

The plaintiff challenges the validity of the judgment of conviction and urges that the same is void. The trial was had before Hon. Arlie G. Walker presiding as trial judge. Plaintiff insists that Judge Walker had no authority to sit in said cause as the trial judge thereof. For the purpose of determining that question, this court will take judicial knowledge that, at the time of the trial, Judge Walker was the duly elected, qualified, and acting judge of the circuit court in and for the Twelfth judicial district of the state of Oregon, comprised of Polk and Yamhill counties. The record discloses that on the first day of said trial, viz., February 24, 1933, the Chief Justice of this, the Supreme Court of the state of Oregon, Hon. John L. Rand, by an order duly given and made, assigned Judge Walker to duty and directed him to hold court in the Third judicial district, for the purpose of trying the case under consideration, namely, the case of the State of Oregon v. Charles R. Archerd. This order of the Chief Justice was made pursuant to the terms of chapter 83 of Oregon Laws for 1933 (Regular Session) p. 91.

This chapter is an amendment of section 28-604, Oregon Code 1930 and provides that: "For the more speedy and efficient transaction of the business of the various circuit courts in this state, authority is hereby conferred upon the chief justice of the supreme court, and it shall be his duty, to direct any circuit judge in the state to hold court in any county of any judicial district in the state at and during any term of any circuit court, and the authority and powers of any circuit judge holding court in any judicial district of the state by assignment to duty as herein provided shall be the same as if he had been regularly elected in that district."

The foregoing chapter is a re-enactment of the provisions of chapter 242 of the Oregon Laws for 1919, page 361, which was amended by chapter 277 of Oregon Laws for 1929, page 299. It will be noted therefrom that for ten years beginning in 1919 the provisions of the present law were in force and effect; then for four years beginning in 1929 the occasions for assignment of a circuit judge to a district other than his own were limited by the terms of the statute to those when the resident circuit judge was absent, unable to sit, or disqualified. After the expiration of those four years, the Legislature struck such limitation and restriction from the statute. It is apparent that this was not done by inadvertence.

In 1880 the Legislature passed an act, which has never been amended or repealed, which provides that: "Each of the several circuit judges of this state shall have authority to hold circuit courts in any of the judicial districts of the state, when, for any reason, the circuit judge elected for such district cannot attend, or is disqualified to try any cause pending therein at the time appointed for holding said court or trying said cause." Laws 1880, p. 48; Hill's Code § 925, O. L. § 968; Oregon Code 1930, § 28-831.

When plaintiff was tried and convicted, this statute had been in effect for more than half a century. We think that both it and said chapter 83 of the Laws of Oregon (page 91) for the regular session of 1933, are valid and constitutional expressions and mandates of the Legislature.

The cases cited by plaintiff to the point that Judge Walker was without authority to try the case of State v. Archerd are in three classes.

One of these hold that a failure to comply with the statute requiring an entry to be made of the facts constituting the reason for the disqualification or inability of the resident judge to sit is a necessary prerequisite for a justification on the part of such resident judge to decline to sit. We have no such statute, and hence these cases are not in point. To that class the cases of Autenrieth v. Schaff, 271 Mo. 248, 196 S.W. 1129, and Gresham v. Ewell, 85 Va. 1, 6 S.E. 700, belong.

Another of these classes of cases holds that substitution of a judge after a trial has begun invalidates the proceedings. There was no such substitution in the case of State v. Archerd.

This class of cases is represented by Freeman v. United States (C. C. A.) 227 F. 732 and Mason v. State, 26 Ohio Cir. Ct. R. 535.

In the latter case, the court use the following very significant language: "We do not hold that there are not certain preliminary duties, which a judge may perform, and the case afterward be continued and completed by a different judge, but that is not the case under consideration."

The third class of cases cited by plaintiff announce the doctrine that an invalid sentence may be avoided by habeas corpus, if such sentence is beyond the jurisdiction of the trial court to impose, as where, for each count, respective terms of imprisonment are imposed, when the law authorizes but one term of imprisonment for all counts no matter how numerous, or the imposition of a sentence after proper plea of former conviction has been rejected. People v. Liscomb, 60 N.Y. 591, 19 Am. Rep. 211; In re Hans Nielsen, Petitioner, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118.

Plaintiff also cites State v. Noble, 118 Ind. 350, 21 N.E. 244, 4 L. R. A. 101, 10 Am. St. Rep. 143, which declares a statute unconstitutional attempting to create the offices of commissioners of the Supreme Court of Indiana.

These citations fail to convince us that Judge Walker was not authorized to preside at the trial of the criminal case mentioned.

In so far as it is applicable to the case at bar, the doctrine of the case in Re Boalt, 123 Or. 1, 260 P. 1004, is that in a habeas corpus proceeding, a court may inquire into the legal status of the court or tribunal issuing the process by which the petitioner is held in custody for the reason that such an inquiry involves a question of jurisdiction.

In re Davis, 118 Or. 693, 247 P. 809, held that the municipal ordinance for an alleged violation of which petitioner was restrained of his liberty did not prescribe punishment by fine or imprisonment and was not a valid exercise of police power.

In Ex parte Davis, 33 Nev. 309, 110 P. 1131, the petitioner indubitably belonged to a class excepted from the provisions of the act under which he was imprisoned.

Ex parte Kearny, 55 Cal. 212, involved a conviction in a court of inferior and limited jurisdiction. In the opinion of the court, it is stated that: "It is not to be presumed that a court of general jurisdiction-or one which the law treats as such-has, in any case, proceeded to adjudge upon matters over which it had no authority. On the other hand, no such intendment is made in favor of the judgment of a court of limited jurisdiction-an 'inferior court'-but the recitals contained in the minutes of the proceedings must be sufficient to show that the case was one 'which the law permitted the court to take cognizance of, and that the parties were subjected to its jurisdiction by proper process.' Cases cited in note 1, p. 407, Cooley's Const. Lim."

Only a specially concurring opinion of one of the justices seems to refute the foregoing well-recognized rule.

Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215, cited by plaintiff to the point that the right to be heard is indefeasible, is a case where the court struck an answer from the files on the ground that...