State ex rel. Sorensen v. Baird

• Decision Date: 21 April 1954
• Parties: STATE ex rel. SORENSEN v. BAIRD.
• Court: Oregon Supreme Court

Page 535

269 P.2d 535

201 Or. 240

STATE ex rel. SORENSEN v. BAIRD.

Supreme Court of Oregon, Department 2.

Argued and Submitted April 14, 1954.

Decided April 21, 1954.

Hugh B. Collins, Medford, argued the cause for appellant. With him on the brief was Paul W. Haviland, Medford.

Warren A. Woodruff, Dep. Dist. Atty., Roseburg, argued the cause for respondent. With him on the brief was Robert M. Stults, Dist. Atty., Roseburg.

Before LATOURETTE, C. J., and WARNER, LUSK and TOOZE, JJ.

TOOZE, Justice.

This is an appeal from a judgment of the circuit court for Douglas county, dismissing a writ of habeas corpus. The proceeding was instituted by Shirley L. Sorensen, on behalf of her husband Charles L. Sorensen, as plaintiff, against C. H. Baird, as sheriff of Douglas county, Oregon, as defendant.

The petition for the writ alleged facts sufficient to authorize the issuance of the writ, and, by order of the court, the writ was issued on May 14, 1953, and served upon the defendant sheriff.

On May 15, 1953, the defendant filed his return to the writ, in which it is alleged (omitting formal parts):

'1. That the defendant is the duly elected, qualified and acting sheriff of Douglas County, Oregon, and makes this return in his official capacity as such sheriff.

'2. That the defendant presently has the person of Charles Lowell Sorensen in his custody in the County Jail of Douglas County, Oregon.

'3. That the said Charles Lowell Sorensen on the 30th day of March, 1953, appeared in the District Court of the State of Oregon for Douglas County in person and represented by his attorney, Edward M. Murphy, and was then and there duly convicted upon his plea of guilty fo the crime of furnishing a Minor with Alcoholic Liquor and was then and there assessed a fine of Seventy-five ($75.00) Dollars and sentenced to be confined in the Douglas County jail for a period of thirty (30) days. That the said Charles Lowell Sorensen was then and there placed on probation for a period of six (6) months upon the terms and conditions that he shall at all places and at all times conduct himself in an exemplary manner, that he refrain from the use of any intoxicating liquor, that he refrain from entering or loitering about any place where intoxicating liquors are sold or kept and that he comply with all local, county and state laws during the said period of probation.

'4. That thereafter and on the 14th day of May, 1953, the said Charles Lowell Sorensen was arrested upon a warrant issued by the Honorable A. J. Geddes, District Judge, charging him, the said Charles Lowell Sorensen, with Violation of the Probation granted to him on March 30, 1953. That on May 14, 1953, a hearing was held in the District Court of the State of Oregon for Douglas County to determine whether or not the probation granted the said Charles Lowell Sorensen on the 30th day of March, 1953, should be revoked and the following order was entered:

"This matter coming on for hearing at this time, the State of Oregon appearing by and through Robert M. Stults, District Attorney for Douglas County, and the defendant appearing in person and by and through his attorneys, Paul Haviland and Hugh B. Collins; and

"It appearing to the Court that the defendant, Charles Lowell Sorensen, appeared before this Court on March 30, 1953, in person and by and through his attorney, Edward Murphy, and entered a plea of guilty to the crime of Furnishing a Minor with Alcoholic Liquor and that the said defendant was sentenced to pay a fine of Seventy-five ($75.00) Dollars and to serve thirty (30) days in the Douglas County Jail and upon payment of said fine, was placed on probation for a period of six (6) months under the terms that the defendant at all times conduct himself in an exemplary manner, refrain from the use of any intoxicating liquor whatever, refrain from entering or loitering about any place where intoxicating liquors are sold and kept and comply with all local, county and state laws during the period of probation; and

"It further appearing to the Court that the defendant, Charles Lowell Sorensen, has not complied with the terms of his probation in that he has not at all times conducted himself in an exemplary manner and that he has not refrained from the use of intoxicating liquors.

"It is Hereby Ordered that the probation granted the defendant, Charles Lowell Sorensen, on the 30th day of March, 1953, whereon the defendant was convicted of Furnishing a Minor With Alcoholic Liquor in the above entitled Court and cause be, and the same hereby is revoked and it is Hereby Ordered that the defendant be delivered to the custody of the Sheriff of Douglas County, Oregon, so that the sentence of thirty (30) days in the Douglas County Jail can be carried into execution.

"Dated this 14th day of May, 1953.

"/s/ A. J. Geddes

"District Judge'

'5. That following said hearing and the issuance of the order set out above an order of commitment was issued by the said A. J. Geddes, District Judge, directing me to commit the said Charles Lowell Sorensen to the Douglas County Jail to serve the sentence imposed upon him on March 30, 1953. A copy of said order of commitment is attached to this return, marked 'Exhibit A' and by this reference made a part hereof.

'6. That thereafter and on the 15th day of May, 1953, the said Charles Lowell Sorensen appeared in the District Court of the State of Oregon For Douglas County and pleaded guilty to the crime of operating a Motor Vehicle upon a Public Highway in Douglas County, Oregon, When Such Motor Vehicle Was Not Equipped With a Muffler in Good Working Order. At said time and place the Honorable A. J. Geddes then and there sentenced the said Charles Lowell Sorenson to pay a fine of Fifteen ($15.00) Dollars and said judgment having provided that in the event of default of payment of said fine, the said Charles Lowell Sorensen be imprisoned in the Jail of this County until said fine is satisfied which shall not exceed one day for each Two ($2.00) Dollars of the fine and he, the said Charles Lowell Sorensen, having failed to pay said fine, was then and there committed to the Douglas County Jail upon order of the Honorable A. J. Geddes, District Judge. A copy of said commitment order is attached hereto and marked 'Exhibit B' and by this reference made a part hereof.'

Attached to the return were exhibits 'A' and 'B', being copies of what purported to be commitment orders as alleged in the return.

Plaintiff demurred to the return on the ground that it did not state facts sufficient to constitute cause or justification for the prisoner's detention. The demurrer was overruled by the court, whereupon plaintiff filed a replication in which she denied each and every allegation of the return, excepting only paragraphs 1 and 2 thereof.

Upon the issues thus formed by the return of defendant and replication (answer) of plaintiff, a hearing was held by the court. In support of the return's allegations, defendant offered, and there were received in evidence, a copy of the journal of the district court, the original 'Order Revoking Probation', and a copy of each commitment order above referred to. No other evidence was offered or received, except a transcript of the testimony given before the district court in connection with the purported revocation of probation. This testimony has no bearing whatever upon the issue now before the court.

The exemplification of the journal of said district court above referred to is in words and figures as follows:

'The State of Oregon, Plaintiff

v.

Charles Lowell Sorensen, Defendant.

Criminal Cases Dockets Nos. 8694 and 986; No. 8694: Contributing to the Delinquency of a Minor: No. 986: furnishing minor with alcoholic liquor:

Arraignments: Pleas: Penalties, and Sentences:

* * *

* * *

'No. 8694 Filed on December 27, 1952; Defendant arraigned on same date; defendant waiving Preliminary Hearing and desirous of going before Circuit Judge on Information of the District Attorney.

'On March 30, 1953, Complaint under Docket No. 986, filed by Prosecuting Witness, Warren Woodruff on defendant, Charles Lowell Sorensen, accusing defendant of the crime of Furnishing Minor With Alcoholic Liquor, and said complaint dismissing Docket No. 8694 against same defendant. Defendant Arraigned on charge of Furnishing a Minor With Alcoholic Liquor: The defendant entering his plea, through his Attorney, Murphy, of Guilty:

'The Court passed sentence on said Defendant giving fine of $75.00, and a suspended Jail sentence of 30 days and placing defendant on Parole for a period of six months from this date. The said defendant shall at all places and at all times conduct him-self in an exemplary manner; to refrain from use of any intoxicating liquor, whatever; to refrain from entering or loitering about any place where intoxicating liquors are sold or kept; and comply with all local, County and State Laws during the Parole period.

'Any violation of the foregoing provisions of the parole will necessitate the defendant being required...