State ex rel. Connall v. Roth

• Decision Date: 20 April 1971
• Citation: 482 P.2d 740,258 Or. 428
• Parties: STATE of Oregon ex rel. George Van Hoomissen (now Desmond D. CONNALL), District Attorney for Multnomah County, Plaintiff, v. The Honorable Phillip J. ROTH, Judge of the Circuit Court of Oregon for the County of Multnomah, Defendant.
• Court: Oregon Supreme Court

Page 740

482 P.2d 740

258 Or. 428

STATE of Oregon ex rel. George Van Hoomissen (now Desmond D CONNALL), District Attorney for Multnomah County, Plaintiff, v. The Honorable Phillip J. ROTH, Judge of the Circuit Court of Oregon for the County of Multnomah, Defendant.

Supreme Court of Oregon.

Argued and Submitted Feb. 12, 1971.

Decided March 24, 1971.

Rehearing Denied April 20, 1971.

J. Bradford Shiley, Jr., Salem, Asst. Atty. Gen., argued the cause for plaintiff. With him on the brief were Lee Johnson Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem.

Leo Levenson, Portland, argued the cause and filed the brief for defendant.

Before O'CONNELL, C.J., and McALLISTER, DENECKE, HOLMAN, HOWELL and BRYSON, JJ.

HOWELL, Justice.

Two individuals were indicted separately and charged with first degree murder by the grand jury of Multnomah county. Each applied for bail. At the bail hearing the district attorney presented only the grand jury indictments and contended that the indictments alone were sufficient to deny bail. The circuit judge concluded that the state had not established that the proof or presumption of guilt of the defendants of murder was evident or strong under the Oregon Constitution and set bail for each accused in the amount of $150,000.

The district attorney applied to this court for alternative writs of mandamus to compel the circuit judge to vacate its orders admitting the accused to bail. Alternative writs were issued, and the defendant circuit judge has filed demurrers and answers to the alternative writs.

Article I, Section 14, of the Oregon Constitution provides:

'Bailable offenses. Offenses (sic), except murder, and treason, shall be bailable by sufficient sureties. Murder or treason, shall not be bailable, when the proof is evident, or the presumption strong.--'

ORS 140.020 also provides:

'Crimes not bailable. If the proof or presumption of the guilt of the defendant is evident or strong, he shall not be admitted to bail when he is charged with murder in any degree, with treason or with the infliction upon another of a personal injury likely to produce death under such circumstances that, if death should ensue, the offense would be murder in any degree.' ¹

The state admits that a defendant indicted on a first degree murder charge is entitled to a bail hearing, and admits that the state has the burden to establish that 'the proof or presumption of the guilt of the defendant is evident or strong.' ORS 140.020, Supra.

The state contends that it has carried the burden of proof by the presentation of the murder indictment at the bail hearing.

The respondent contends that the indictment alone is insufficient proof and that the state must establish by other evidence that the proof or presumption of guilt is evident or strong.

The question of whether the indictment itself is sufficient to establish that the proof or presumption of the guilt of the defendant is evident or strong is one of first impression in this state. Other courts have reached conflicting results.

Three different lines of authority have developed concerning the question of burden of proof in a murder-bail hearing and whether the indictment carries that burden. The cases have been analyzed in an annotation in 89 A.L.R.2d 355. The three categories are: (1) the state has to produce some evidence in addition to the indictment; (2) the indictment is Prima facie evidence of proof or presumption of guilt, and the defendant has the burden of going forward with evidence to show the contrary; and (3) the indictment is conclusive against the allowance of bail. The latter view finds support in only a few cases. See Annot., 89 A.L.R.2d, Supra, at 357.

The rule that the indictment is Prima facie evidence and that the burden is on the defendant to show that the proof of his guilt is not evident or the presumption thereof is not strong has been adopted in most jurisdictions. See Annot., 89 A.L.R.2d, Supra, at 362. This is the rule followed by the Supreme Court of Indiana. Bozovichar v. State, 230 Ind. 358, 103 N.E.2d 680 (1952); Ex parte McAdams, 196 Ind. 184, 147 N.E. 764 (1925); Ex parte Heffren, 27 Ind. 87 (1866). The plaintiff urges that we join the view expressed by the Indiana Court for the reason that Art. 1, § 14, of the Oregon Constitution was taken directly from the Indiana Constitution of 1851, Art. I, § 17. This is true. Carey, The Oregon Constitution and Proceedings and Debates of the Constitutional Convention of 1857, at 468 (1926). However, there is no substantial difference between the constitutional provisions of Indiana and the other states. The constitutional provisions of most of the states refer to 'capital offenses' instead of 'murder and treason.' ALI, Code of Criminal Procedure, 338--341 (1930).

The rationale of those decisions supporting the view that the indictment is Prima facie evidence and that the defendant has the burden of showing that the proof is not evident or the presumption strong is based on the theory that the grand jury has acted properly and found facts sufficient to indict. Ex parte McAdams, Supra; Ford v. Dilley, 174 Iowa 243, 156 N.W. 513 (1916).

The plaintiff herein relies on the same reasoning and contends that we must presume the grand jury followed the statutory mandate contained in ORS 132.390 requiring it to return an indictment 'when all the evidence before it, taken together, is such as in its judgment would, if unexplained or uncontradicted, warrant a conviction by the trial jury.' In State v. Guse, 237 Or. 479, 392 P.2d 257 (1964), and State v. McDonald, 231 Or. 24, 361 P.2d 1001 (1962), we acknowledged the presumption that an indictment was returned upon sufficient evidence to give the grand jury probable cause to believe that a crime had been committed by the accused.

However, the court did not relate the presumption of the validity of the indictment to the probative effect of an indictment in a bail hearing because the defendant's right to bail was not involved in either case.

The rule followed by Indiana that the grand jury is presumed to have acted on sufficient evidence to indict, and that the burden is on the defendant to show to the contrary, has a very impractical result. It requires the accused to 'introduce the evidence of witnesses indicated by the indictment, and he must also introduce such witness as the state indicates it does rely on.' Ex parte McAdams, 196 Ind. at 186, 147 N.E. at 765; See Ex parte Heffren, Supra.

The trend of recent decisions is in favor of the position of the defendant herein that the state must present more evidence than the indictment to establish that the proof or presumption of guilt is evident or strong. State v. Menillo, 159 Conn. 264, 268 A.2d 667, 674 (1970); In re Steigler, Del., 250 A.2d 379 (1969); Ford v. Dilley, Supra; Commonwealth v. Stahl, 237 Ky. 388, 35 S.W.2d 563 (1931); State v. Konigsberg, 33 N.J. 367, 164 A.2d 740, 89 A.L.R.2d 345 (1960); Application of Wheeler, 81 Nev. 495, 406 P.2d 713 (1965); Taglianetti v. Fontaine, R.I., 253 A.2d 609 (1969). See also Annot., 89 A.L.R.2d, Supra, at 358.

The Supreme Court of New Jersey discussed the question of the burden of proof in State v. Konigsberg, Supra. In an excellent and well-reasoned opinion by Justice Francis, the court stated the following regarding the argument that the grand jury's indictment should be sufficient to satisfy the requirement of evident proof or presumption great of guilt:

'Moreover, it is common knowledge that proceedings of the Grand Jury are secret and wholly ex parte, evidence for the State alone being received. The accused is not present nor can he be represented by counsel, and it is probably fair to say that in some instances he is not even aware that allegations against him are being considered. The prosecutor ordinarily selects the witnesses to testify; usually he gives the only legal advice the court being rarely called upon during deliberations; and he generally directs the entire proceeding to a considerable extent. To say that a...