State v. Barrett

• Decision Date: 15 March 1927
• Parties: STATE v. BARRETT ET AL.
• Court: Oregon Supreme Court

254 P. 198

121 Or. 57

STATE v. BARRETT ET AL.

Supreme Court of Oregon

March 15, 1927

Department 1.

Appeal from Circuit Court, Multnomah County; Dalton Biggs, Judge.

E. J Barrett and another were indicted for unlawfully offering corporate securities for sale, defendant named was convicted and he appeals. Affirmed.

Guy L. Wallace, of Portland, for appellant.

Jay H Stockman, of Portland, for the State.

RAND, J.

The defendant was convicted under an indictment which charged him with unlawfully offering corporate securities for sale contrary to the provisions of sections 6838-6854, Or. L., as amended by chapter 400, L. 1921. At the time the indictment was returned, defendant was out of the state, and, upon being advised thereof, he voluntarily returned and surrendered himself into custody, and thereupon was duly admitted to bail.

The indictment was found and returned at the May, 1925, term of the circuit court for Multnomah county, and defendant surrendered himself, and was admitted to bail, at the following June term of that court. He was not brought to trial at the next term after surrendering himself, but was tried at the December, 1925, term, after several terms of court had intervened. He moved the court for a dismissal of the indictment, claiming that he was entitled to a dismissal under section 1701, Or. L., for the reason that he had not been brought to trial at the next term of the court in which his case was triable. Affidavits were filed in his behalf tending to show that the trial had not been postponed on his application or with his consent, and contrary affidavits were filed tending to show that he had expressly requested and consented to the postponement. In denying the motion the court must necessarily have found that defendant did consent to the postponement of the trial, and from the showing made the evidence was sufficient to sustain such finding and to warrant the court's denial of the motion. In passing upon motions preliminary to trial, where questions of fact are involved, the trial court is in a better position to determine the fact than an appellate court, and for that reason such questions of fact are not open for review upon appeal, unless the error is palpable and there has been a clear abuse of discretion.

Defendant's next contention is that the admission in evidence over his objection of certain exhibits, four in number, was error. His brief recites that these exhibits "were secretly obtained by Edna Bell and Caroline Scherer from the private papers of E. J. Barrett and Lynn B. Coovert in the possession of Lynn B. Coovert, which he had intrusted to Le Etta Jones during his temporary absence from Ashland, Or., and which Edna Bell, Caroline Scherer, and Le Etta Jones (all witnesses for the state) delivered to the district attorney," and he argues that the admission of these papers in evidence was a violation of his constitutional rights as guaranteed by section 12 of article 1 of the Oregon Constitution, which provides:

"No person shall * * * be compelled in any criminal prosecution to testify against himself."

In support of his contention he cites Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Gouled v. United States, 255 U.S. 298, 41 S.Ct. 263, 65 L.Ed. 647; Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654; and State v. Laundy, 103 Or. 492, 204 P. 958, 206 P. 290.

The facts, in relation to the manner in which these exhibits were obtained, are substantially these: The Skyline Mining Company was an Oregon corporation, of which the defendant was president. It was incorporated and organized in August, 1924 and had an authorized capital stock issue of $50,000, divided into 500 shares of the par value of $100 each, and at the time of its organization defendant subscribed for 450 shares thereof, paying for his said subscription by the transfer of an option to plaintiff's said mining claims, upon which option he had paid a small sum as a part of the purchase price, which transfer of the option had been accepted by the corporation as full payment for the stock subscribed for. He offered this stock for sale, and sold a small number of shares to numerous persons without having secured any permit therefor, and without having in any way complied with the requirements of the statutes above referred to. Among the persons purchasing this stock from the defendant was Caroline Scherer, who purchaser 50 shares thereof, paying $4,500 therefor. After making the purchase, she went to Ashland, Or., in the vicinity of which these mining claims were situated, for the purpose of ascertaining the financial status of the corporation. While there she went to the dwelling house where Le Etta Jones was living, and was furnished the papers and documents of the corporation by Mrs. Jones, for the purpose of investigating its affairs. With Mrs. Jones' consent she took possession...