In re Clark

• Decision Date: 01 February 1916
• Citation: 79 Or. 325,154 P. 748
• Parties: IN RE CLARK.
• Court: Oregon Supreme Court

154 P. 748

79 Or. 325

IN RE CLARK.

Supreme Court of Oregon

February 1, 1916

In banc.

Original proceedings in mandamus by Albin L. Clark to require John P Kavanaugh, Judge of the Circuit Court of the State of Oregon County of Multnomah, Department No. 1, to sign an order dismissing an indictment. Demurrer to answer overruled, and writ dismissed.

Wilson T. Hume, of Portland, for petitioner. Geo. M Brown, Atty. Gen. (Walter H. Evans, Dist. Atty., of Portland on the brief), for respondent.

BENSON J.

On April 29, 1915, the petitioner was indicted for the crime of willfully and fraudulently altering and destroying white ballots cast at an election. Thereafter he entered a plea of not guilty, and on May 17, 1915, a trial was had in which the jury was discharged for inability to agree upon a verdict. Another trial was begun on May 25th, of the same year, which resulted in a conviction, and thereafter the verdict was set aside for the reason that in the interval the official stenographer, who reported the trial, died, and it was therefore impossible to secure a record thereof. About December 10, 1915, the district attorney moved to dismiss the indictment under section 1704, L. O. L., and tendered a written order reciting the reasons for the signature of Judge Kavanaugh, to whom the motion was presented, and it was by him denied. The record discloses that a like motion had previously been presented to and denied by two other circuit judges of Multnomah county. Thereupon the petitioner applied to this court for a peremptory writ of mandamus requiring Judge Kavanaugh to sign the order of dismissal. In response to the petition an alternative writ was issued by this court, and an answer thereto was duly filed, to which the petitioner demurs. Section 1704, L. O. L., upon which this proceeding is based, reads as follows:

"The court may, either of its own motion or upon the application of the district attorney, and in furtherance of justice, order an action, after indictment, to be dismissed; but in that case, the reasons of the dismissal must be set forth in the order, which must be entered in the journal."

The petitioner contends that the word "may" in the above section means "must," and that the lower court has no discretion in the premises, but must sign the order of dismissal when requested by the district attorney. The law above quoted was section 323 of Deady's Code, and was a part of chapter 31 ther...