State v. Andrews
| Decision Date | 30 October 1899 |
| Citation | 58 P. 765,35 Or. 388 |
| Parties | STATE v. ANDREWS. |
| Court | Oregon Supreme Court |
Appeal from circuit court, Wasco county; W.L. Bradshaw, Judge.
Jake Andrews was convicted of the crime of exhibiting obscene pictures, and appeals. Reversed.
Huntington & Wilson and F.W. Wilson, for appellant.
D.R.N Blackburn, Atty. Gen., for the State.
The defendant was indicted and tried for the crime of exhibiting obscene pictures, and, having been convicted, was sentenced to pay a fine of $500, from which judgment he appeals assigning as error the action of the court in denying his motion to set aside the indictment on the ground that it did not contain the names of all the witnesses examined before the grand jury. The transcript shows that the court sustained a demurrer to the first indictment charging the defendant with the commission of said offense, upon which were indorsed the names of 12 witnesses examined before the grand jury, and ordered the case resubmitted, whereupon the same grand jury returned the indictment involved in this appeal, indorsing thereon the names of two witnesses only. It is maintained by counsel for the state that when an indictment is set aside, and the case resubmitted to the grand jury, a subsequent indictment, found in pursuance of such resubmission, is a new proceeding entirely, and hence it is necessary to indorse thereon the names of the witnesses only who were examined after the resubmission. The statute requires that when an indictment is found the names of the witnesses examined before the grand jury must be inserted at the foot of the indictment, or indorsed thereon, before it is presented to the court. Hill's Ann.Laws Or. § 1260. And when the names of such witnesses are not so indorsed or inserted, the court must, upon motion of the defendant, if made at the proper time, set the indictment aside. Id. § 1314; State v. Smith (Or.) 55 P. 534. Whether the submission of the case to another grand jury after the indictment is set aside is a new proceeding in which the names of the witnesses examined before the former jury should be indorsed upon the indictment is a question the determination of which is not necessary to a decision of the case at bar. The case having been resubmitted to the same grand jury, they must have retained in their memory the substance of the evidence theretofore given before them, and might possibly have found another indictment without calling a single witness. If this be true, it would necessarily follow, from the principle contended for by the state, that the indorsement of the names of witnesses upon the indictment might be entirely dispensed with, and the provision of the statute thus evaded. The manifest object of the requirement is to inform the defendant upon whose testimony the state chiefly relies for a conviction, so that he may know what evidence he may reasonably expect to be given against him. The statute, being designed to enable a person accused of the commission of a crime to prepare for his defense, should be liberally construed in his favor, and, this being so, the requirement to indorse upon the indictment, before it is presented to the court, the names of the witnesses examined before the grand jury, is mandatory, and the court erred in refusing to set aside the indictment. State v Pool, 20 Or. 150, 25 P. 375; Stevens v. State (Neb.) 28 N.W. 304; Parks v. State (Neb.) 31 N.W. 5; State v. Stevens (S.D.) 47 N.W. 546.
In view of another trial, it becomes important to consider some of the alleged errors which may be avoided thereat. Evidence was introduced at the trial which tended to show that the pictures alleged to have been exhibited by the defendant were contained in a nickel in the slot machine. The court, over defendant's objection and exception, permitted evidence to be offered of what he said at his preliminary examination before the justice of the peace, tending to show his ownership of said pictures, without it being shown that he was cautioned as to his legal rights, or that such statements were voluntary. The organic law of the state provides that no person shall be compelled in any criminal prosecution to testify against himself (Const.Or. art. 1, § 12); and our court, giving to this clause the liberal construction to which it is entitled, has held that, before the confessions of a defendant can be received in evidence in...
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State v. Smith
...was obeying a legal mandate, and not making a voluntary statement. The right to waive making such a statement implies In State v. Andrews, 35 Or. 388, 58 P. 765 (1899), the defendant was convicted of exhibiting obscene pictures. This court reversed the conviction because the names of the wi......
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State ex rel Juv. Dept. v. Deford
...with its guarantee that no person shall be compelled in any criminal prosecution to testify against himself. State v. Andrews, 35 Or. 388, 391-92, 58 P. 765 (1899).7 Consistently with that recognition, cases decided under Article I, section 12, have required that "neither duress nor intimid......
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State v. Davis
...I, section 12, is whether a defendant's testimony was compelled, or, conversely, whether it was voluntarily given. In State v. Andrews, 35 Or. 388, 391, 58 P. 765 (1899), for example, the court explained that, under Article I, section 12, “before the confessions of a defendant can be receiv......
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State v. Maynard
...17 N.Y. Sup Ct 224 (1877). Oregon, in fact, was among the states that continued to enforce its obscenity statute. State v. Andrews, 35 Or. 388, 58 P. 765 (1899), overruled on other grounds State v. McDonald, 231 Or. 24, 361 P.2d 1001 Congress, too, stepped up its regulation of obscene mater......