State ex rel. Gladden v. Lonergan

• Decision Date: 14 April 1954
• Citation: 269 P.2d 491,201 Or. 163
• Parties: STATE ex rel. GLADDEN, Warden, v. LONERGAN et al.
• Court: Oregon Supreme Court

Page 491

269 P.2d 491

201 Or. 163

STATE ex rel. GLADDEN, Warden, v. LONERGAN et al.

Supreme Court of Oregon, En Banc.

Argued and Submitted March 18, 1954.

Decided April 14, 1954.

Wolf D. Von Otterstedt, Asst. Atty. Gen., Robert Y. Thornton, Atty. Gen., on the brief, for plaintiff.

T. Morris Dunne, Jr., Portland, Earl F. Bernard, Portland, on the brief, for defendants.

TOOZE, Justice.

This is an original proceeding in mandamus, instituted by the state of Oregon, ex rel. Clarence T. Gladden, as warden of the Oregon State Penitentiary, as plaintiff, against Frank J. Lonergan and Lowell Mundorff, as judges of the circuit court of the state of Oregon for Multnomah county, as defendants, to compel said defendants to vacate certain orders heretofore made by them. The matter is now before us upon defendants' general demurrer to the alternative writ of mandamus.

From the allegations of the writ it is made to appear that on February 23, 1954, defendant Lowell Mundorff, as judge of the circuit court for Multnomah county, issued an order in a criminal proceeding then pending in said circuit court, entitled the state of Oregon, plaintiff, against Phillip Wallace, Kenneth J. Nelson, and George LeDuke, defendants, being criminal case No. C-31916 in said court, ordering and requiring the plaintiff to produce the person of one Phillip Wallace, a convict in the lawful custody of plaintiff, in the courtroom of defendant Frank J. Lonergan, judge of said court, Multnomah county courthouse, Portland, Oregon, on February 25, 1954, for the purpose of having said Phillip Wallace testify as a witness at the trial and on behalf of the defendant George LeDuke.

Acting upon the legal advice of the Attorney General of the state of Oregon, which advice was based upon the Attorney General's interpretation of ORS 44.230, the plaintiff advised T. Morris Dunne, Jr., attorney for George LeDuke, that he could not surrender the person of Phillip Wallace for the purposes indicated in the court's order.

On February 25, 1954, plaintiff filed in the circuit court for Multnomah county a motion to vacate the order of Judge Mundorff entered on February 23, but the court refused to vacate it.

On February 25, 1954, the defendant Frank J. Lonergan, as the trial judge in the criminal case then pending against the said LeDuke, issued an order directed to plaintiff and requiring him to appear and show cause why an order should not be issued holding plaintiff in contempt of the circuit court for Multnomah county for his failure to produce the person of Phillip Wallace, a convict in the Oregon State Penitentiary, for the purpose of testifying on behalf of the said LeDuke, as theretofore ordered by the court.

Plaintiff appeared before the defendant Frank J. Lonergan, as judge of the circuit court, in response to the order to show cause and objected to the jurisdiction of the court to try the plaintiff in a contempt proceeding, and to the validity of the original order to produce the witness. He also filed a motion to vacate the order to show cause. His motion was denied.

The sole question for determination in this proceeding is whether the circuit court for Multnomah county had jurisdiction to compel the personal attendance of Phillip Wallace, a convict in the Oregon State Penitentiary, as a witness for and upon the trial of the defendant George LeDuke.

Plaintiff bases his refusal to produce the witness in court upon his interpretation of the provisions of ORS 44.230. This statute is a part of the civil code of this state. It provides:

'44.230 Deposition or production of prisoners. (1) If the witness is a prisoner confined in a prison within this state, an order for his examination in the prison upon deposition, or for his temporary removal and production before a court or officer for the purpose of being orally examined, may be made as follows:

'(a) By the court or judge in which the action, suit or proceeding is pending, unless it is a court of a justice of the peace.

'(b) By any judge of a court of record when the action, suit or proceeding is pending in a justice's court, or when the witness' deposition, affidavit or oral examination is required before a judge or other person out of court.

'(2) The order shall only be made upon the affidavit of the party desiring it, or someone on his behalf, showing the nature of the action, suit or proceeding, the testimony expected from the witness and its materiality.

'(3) If the witness is imprisoned in the county where the action, suit or proceeding is pending, and for a cause other than a sentence for a felony, his production may be required; in all other cases, his examination shall be taken by deposition.' (Italics ours.)

By ORS 139.110 the foregoing statute is made to apply in criminal actions, examinations, and proceedings.

It is the plaintiff's contention that under the provisions of ORS 44.230, supra, the court is without jurisdiction to compel the attendance of an imprisoned felon as a witness for a defendant in a criminal prosecution, and that the testimony of such a witness, if given at all, must be by deposition.

The origin of ORS 44.230 is to be found in an act adopted January 7, 1854 (effective May 1, 1854) by the territorial legislature. It was part of an act entitled: 'An Act to regulate proceedings in actions at law in the Supreme and District Courts.' Chapter IV of the Act relates to evidence. It deals with the following subjects: (1) Competency of witnesses; (2) manner of compelling the attendance of witnesses; (3) examination of witnesses; (4) depositions taken in the territory; (5) depositions taken out of the territory; (6) proceedings to perpetuate testimony; and (7) provisions relating to records, documents and other writings. It was a part of the civil code. Sections 15 and 16 of ch. IV, title II, Statutes of Oregon, 1854, provided as follows:

'Sec. 15. If the witness be a prisoner confined in a jail or prison within this territory, an order for his examination in prison, upon deposition, or for his temporary removal and production before a court or officer, for the purpose of being orally examined, may be issued.

'Sec. 16. Such order can only be made upon affidavit, showing the nature of the action or proceeding, the testimony expected from the witness, and its materiality.'

The constitution of this state was adopted September 18, 1857, and, by Act of Congress, Oregon was admitted to the Union as a state on February 14, 1859. Section 7 of article XVIII provided that 'all laws in force in the Territory of Oregon when this Constitution takes effect, and consistent therewith, shall continue in force until altered, or repealed.' Therefore, the foregoing statutes remained the law of this state until 1862, when the state legislature adopted 'An Act to provide a code of civil procedure.' Oregon Code of Civil Procedure, 1862.

Section 791, ch. IX, title II, p. 195, of that Act provided what is now ORS 44.230, supra. That law has not been amended in any way since its original adoption.

In January, 1851, the territorial legislature adopted an act providing for the erection of a penitentiary at Portland, 'in the county of Washington', 'for the confinement and employment of persons sentenced to imprisonment and hard labor in the penitentiary in this territory.' Statutes of Oregon, 1854, pp. 509, 510.

It is obvious, therefore, that the reference to a witness confined in a prison in the foregoing statute of 1854 meant a witness confined in the territorial penitentiary.

The Code of Criminal Procedure as adopted by the territorial legislature on December 22, 1853 (chs. I to XXXVII, incl., pp. 184 to 256, incl., Statutes of Oregon, 1854), remained in full force and effect and as the law of this state until May 1, 1865, when an act 'to provide a Code of Criminal Procedure, and to define crimes and their punishment', adopted October 19, 1864, by the state legislature, became effective.

Section 2, ch. II, of the 1853 Act provided:

'In all criminal prosecutions, the accused shall enjoy the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his behalf; and in prosecutions by indictment or information, to a speedy public trial, by an impartial jury of the county wherein the offence shall have been committed, except * * *.' (Italics ours.)

Amendment VI, U. S. Constitution (effective in the territory of Oregon), provides:

'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, * * *, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel of his defense.' (Italics ours.)

It is to be observed that the statute of 1853 goes further than the federal constitutional provision respecting witnesses. The constitution simply gives the accused the right to be confronted with the witnesses against him, whereas, the statute gives him the right 'to meet the witnesses face to fact', without any qualification; that is to say, under the statute he is entitled to confront all witnesses, whether for or against him.

It is to be presumed that the territorial legislature knew the history and background of the constitutional amendment, and what common-law right it was intended to preserve unimpaired; that it was a constitutional declaration of the then well-established hearsay rule; that its essential purpose was to secure to an accused person the right of cross-examination of adverse witnesses, a right firmly established at common law. Compulsory process for witnesses in favor of an accused as provided in the constitution vests a right not enjoyed at common law.

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