In re Von Klein
| Decision Date | 23 October 1913 |
| Citation | 135 P. 870,67 Or. 298 |
| Parties | In re VON KLEIN. |
| Court | Oregon Supreme Court |
Department 1. Original petition by E.E.C. Von Klein, for a writ of mandamus directed to the circuit court for the county of Multnomah, department No. 1. On general and special demurrer to the writ. Demurrer sustained, and writ quashed.
This is an original proceeding in mandamus. The writ recites the following facts: On June 13, 1913, petitioner was indicted by the grand jury of Multnomah county for the crime of larceny and upon the 8th day of July following another indictment was returned, charging him with the crime of polygamy. Upon the first indictment petitioner pleaded not guilty, and the cause was set for trial on July 15, 1913. A trial was had thereon before Hon. Robert G. Morrow, one of the judges of the circuit court, resulting in a failure of the jury to agree. Thereafter the court, upon application of the district attorney, without any showing by the state, and against the protest of petitioner, set the case for trial on the 2d day of September, at which time petitioner appeared and demanded trial. Thereupon the district attorney filed an affidavit for continuance, and the defendant filed a counter affidavit. After argument the court, without warrant of law or cause having been shown, continued the trial until October 27 1913, and over the September term of court; the September term being the next term ensuing after the filing of the indictment. On the 6th day of October, 1913, petitioner filed a motion to dismiss the indictment on the ground that the court was without jurisdiction to try the cause, which motion was denied by the court. The petitioner alleges that about July 8, 1913, he was arraigned and pleaded not guilty to the charge in the indictment for polygamy; that no attempt was made by the state to prosecute him upon such charge; that on the 2d day of September, 1913, he appeared and demanded immediate trial, and that the district attorney made no application for a continuance or any showing therefor, except to ask that the trial be set for October 27, 1913; that the September term was the term next ensuing; and that petitioner is entitled to have the indictment dismissed for failure of the state to bring the case on for trial at the term of court next following the indictment. A motion to that effect was made and overruled. The writ also alleges that the principal witnesses on behalf of the state have departed therefrom through no fault of petitioner; it appearing from the allegations thereof that it is not probable they will ever return. The defendant demurred generally and specially.
W.T Hume, of San Francisco, Cal., for petitioner.
Robert F. Maguire, of Portland, opposed.
McBRIDE C.J. (after stating the facts as above).
Section 1701, L.O.L., is as follows: "If a defendant indicted for a crime, whose trial has not been postponed upon his application or by his consent, be not brought to trial at the next term of court in which the indictment is triable, after it is found, the court must order the indictment to be dismissed, unless good cause to the contrary be shown." Section 1606 provides than an appeal may be taken from an order refusing to dismiss the indictment for the causes specified in section 1701. Section 613, L. O.L provides inter alia: "The writ (of mandamus) shall not be issued in any case where there is a plain, speedy,...
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State v. Kuhnhausen
...appeals are seasonably taken from the original denial of a motion for an immediate trial.' (Italics ours.) See also: In re Von Klein, 67 Or. 298, 300, 135 P. 870; State v. De Grace, 144 Or. 159, 164, 22 P.2d 896, 90 A.L.R. 232. In the following Oregon cases the appeals which established the......
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State v. Jackson
...opinion of Chief Justice Beatty in Strong v. Grant, 99 Cal. 100, 33 P. 733, and the comment thereon by this court in In re Von Klein, 67 Or. 298, 300, 135 P. 870. As an additional reason for its decision in the DeGrace case the court said that '[a] defendant could appeal from an intermediat......
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State ex rel. Scott v. Dobson
...answer to the question above set forth. Where a plain, speedy and adequate remedy by appeal exists, mandamus does not lie. In re Von Klein, 67 Or. 298, 135 P. 870; In re Clark, 79 Or. 325, 332, 154 P. 748, 155 P. 187, 189; State ex rel. v. Beveridge, 112 Or. 19, 23, 228 P. 100; State ex rel......
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State ex rel. Burke v. Beveridge
...at law. Where an appeal lies, the writ of mandamus does not lie. In re Clark, 79 Or. 325, 332, 154 P. 748, 155 P. 187; In re Von Klein, 67 Or. 298, 300, 135 P. 870. these reasons the petition for a peremptory writ of mandamus is refused and the petition dismissed. ...