State v. Belding

• Decision Date: 26 January 1903
• Citation: 43 Or. 95,71 P. 330
• Parties: STATE v. BELDING.
• Court: Oregon Supreme Court

71 P. 330

43 Or. 95

STATE v. BELDING.

Supreme Court of Oregon

January 26, 1903

Appeal from circuit court, Multnomah county; M.C. George, Judge.

A.L Belding was convicted of murder, and appeals. Affirmed.

D.R. Murphy, for appellant.

Geo. E Chamberlain, Dist. Atty., for the State.

MOORE C.J.

The defendant, A.L. Belding, was informed against, tried, and convicted of the crime of murder in the first degree, alleged to have been committed in Multnomah county, Or., July 11 1902, by killing one Deborah A. McCroskey, and from the judgment which followed he appeals.

The bill of exceptions shows that he was arrested a few minutes after the homicide, charged therewith, and lodged in jail without bail, and without any commitment by a magistrate. The information was filed July 15, 1902, and upon being arraigned he moved to set it aside on the ground that he had been deprived of the benefit of a preliminary examination, which motion being overruled, his counsel contend that an error was thereby committed. It is argued that the following clause prescribing the procedure in criminal cases, is mandatory, to wit, "The defendant must, in all cases, be taken before the magistrate without delay." Bel. & C. Ann.Codes & St. § 1600. It is maintained by the district attorney, however that the following provision, passed at the same session of the legislative assembly as that quoted, must be read in connection with it, and that, when construed together, the former becomes directory only, viz.: "The grand jury may indict or present a person for a crime, when they believe him guilty thereof, whether such person has been held to answer for such crime or not." Id. § 1278. It is possible so to construe these sections as to permit each to remain intact, on the assumption that both were adopted as a part of the same general plan of criminal procedure; for it will be observed that, though a person charged with the commission of a crime might, upon his preliminary examination, be discharged by a magistrate, such exoneration would not preclude the grand jury from indicting him. If it be conceded that the position assumed by defendant's counsel is correct that section 1600, Bel. & C. Ann.Codes & St., requiring all persons arrested for the commission of a crime to be taken before a magistrate without delay, is mandatory, the act of February 17, 1899, providing for criminal prosecutions on information (Id., §§ 1258-1264), permits a district attorney, in our opinion, legally to charge any person with the commission of a crime without his having been taken before a magistrate for a preliminary examination. The act in question provides, in effect, that it shall be lawful for, and is made the duty of, the district attorney to file an information in the county where a crime has been committed, charging any person therewith. Id. § 1258. The information shall be substantially in the form and according to the manner of stating the act constituting the crime as provided for in an indictment, except that the words "district attorney" shall be used, instead of the words "grand jury," wherever they occur. Id. § 1259. From the time the information is filed it shall be construed like, and deemed in all respects as, an indictment, and subject to the same proceedings, including judgment and execution, as if it had been returned by a grand jury: "Provided, that when a defendant has been held to answer, as provided in chapter XXII of title XVIII of said Criminal Code, the information against him shall be filed on or before the first day of the next regular term of the circuit court, before which he is required to appear, unless such circuit court, upon good cause stated by the district attorney, shall extend the time." Id. § 1260. The requirement that the information shall be filed within the time prescribed when the defendant has been held to answer clearly implies that a person may be charged by the district attorney with the commission of a crime without having had a preliminary examination of the case before a magistrate. It must be admitted that the act of 1899, under consideration, vests the district attorney with vast power, which, if oppressively exercised, might possibly abridge the constitutional right of one accused of a crime to demand the nature and cause of the accusation against him. Const.Or. art. 1, § 11. When a defendant in a criminal action is examined before a magistrate, the state is expected to produce sufficient testimony to prove that a crime has been committed, and also to make a prima facie showing that the person accused thereof is apparently guilty. Bel. & C. Ann.Codes & St. § 1643. By this means the defendant, without offering any testimony in exculpation, is generally enabled to ascertain the nature of the indictment likely to be returned against him, and also to anticipate the extent and character of the testimony that will probably be produced in support of the charge, thus enabling him intelligently to prepare for his defense. The practice, however, of indicting persons without according them preliminary examinations (Id., § 1278), has long been acquiesced in by the courts of this state, but in such cases the persons accused, relying upon the presumption that official duty has been regularly performed ( Id. § 788, subd. 15). might safely conclude that five of the grand jurors, at least, concurred in believing that all the evidence before them, taken together, was such as, in their judgment, would, if unexplained or uncontradicted, warrant a conviction by a trial jury...