Ex parte Stacey

• Decision Date: 28 March 1904
• Citation: 45 Or. 85,75 P. 1060
• Parties: Ex parte STACEY.
• Court: Oregon Supreme Court

75 P. 1060

45 Or. 85

Ex parte STACEY.

Supreme Court of Oregon

March 28, 1904

Appeal from Circuit Court, Multnomah County; Alfred F. Sears, Jr. Judge.

Habeas corpus to inquire into the cause of the imprisonment of Bert Stacey. The prisoner was remanded, and he appeals. Affirmed.

P.C Dormitzer, for appellant.

A.M Crawford, Atty. Gen., for the State.

MOORE C.J.

This is a special proceeding to inquire into the cause of the imprisonment of Bert Stacey. A writ of habeas corpus having been issued and directed to W.A. Storey, as sheriff of Multnomah county, he, as a return thereto, certified that Stacey had been convicted in the circuit court of that county of the crime of robbery, and, having been sentenced to imprisonment in the penitentiary for the term of two years, was committed to his custody, to be taken to the place of incarceration; setting out a copy of the judgment in pursuance of which he held the prisoner, whom he also produced. The return not having been controverted in any manner, the court proceeded to examine into the facts stated therein, and having concluded that the restraint was legal, remanded the prisoner, from which judgment he appeals.

It is contended by his counsel that the information under which he was convicted is fatally defective, and, this being so, the court erred in not discharging him from custody. The bill of exceptions does not contain a transcript of the information but respondent's brief sets out what purports to be a copy thereof, as follows: "Bert Stacey is accused by the district attorney of the Fourth Judicial District of the state of Oregon, for the county of Multnomah, by this information, of the crime of robbery, committed as follows: The said Bert Stacey on the 24th day of December, A.D. 1902, in the county of Multnomah and state of Oregon, then and there being, did then and there unlawfully and feloniously take, steal, and carry away a certain watch, of the value of $40, of the personal property of one H.F. Copland, from the person of said H.F. Copland, and against his will, by violence to his person, and by assault then and there made by him, the said Bert Stacey, upon the said H.F. Copland, and by putting him, the said H.F. Copland, in fear of some immediate injury to his person, contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Oregon." This information is based on a violation of the following provision of the statute. "If any person, not being armed with a dangerous weapon, shall by force and violence, or by assault, or by putting in fear of force and violence or assault, rob, steal, or take from the person of another any money or other property which may be the subject of larceny, such person, upon conviction thereof, shall be punished by imprisonment in the penitentiary not less than one nor more than five years." B. & C. Comp. § 1769. It is argued by appellant's counsel that the element of force prescribed by the statute is omitted from the information, which charges violence and fear of violence, and, as the...