State v. Bertschinger
| Decision Date | 07 January 1919 |
| Citation | 177 P. 63,93 Or. 404 |
| Parties | STATE v. BERTSCHINGER. |
| Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Multnomah County; J. P. Kavanaugh, Judge.
A Bertschinger was indicted for manslaughter, and, from order overruling a motion to dismiss the indictment, he appeals. Affirmed.
On June 1, 1917, the defendant was indicted by the grand jury of Multnomah county for the crime of manslaughter, in the commission of an abortion upon a Mrs. Oswald. The defendant entered a plea of not guilty, and the case was set for trial on September 12, 1917. A few days previous to that date the district attorney and defendant's counsel made an oral agreement that the trial of the case should be postponed until the October term, 1917. Nothing more was done, and the case was finally set for hearing on December 14, 1917. Defendant's attorneys claim that they did not receive any notice of the trial of the case on that date until December 11, 1917. They also claim that they consented to the postponement of the trial to the October term "upon the condition that the case would be called and tried in the early part of October."
After receiving notice on December 11th that the case was set for trial three days later, the defendant then filed a motion to dismiss the indictment, "upon the ground that the district attorney had not brought the defendant to trial at the next term of court after the finding of the indictment." This motion was based upon the records of the court and the affidavits of the defendant and of his attorneys. A counter affidavit was filed by the deputy district attorney, together with a reply affidavit of one of the defendant's attorneys, all of which affidavits are in the transcript. After argument, the motion to dismiss was overruled, and the order overruling it recites:
"And it appearing to the court, after hearing the argument and statements of counsel pro and con, from the affidavits of respective counsel now on file herein, and from the condition of the trial docket of this court, and from the statements of respective counsel, that good cause and reasons exist for the denial of the above-named defendant's motion to dismiss the indictment herein for the failure to try the defendant at the next term after he was indicted: Now, therefore, it is hereby ordered and adjudged that the defendant's motion to dismiss the indictment herein be and the same hereby is denied."
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State v. Kuhnhausen
...unavoidable circumstances.' 16 C.J. 445, 446. 'To similar effect is the doctrine announced by this court in the cases of State v. Bertschinger, 93 Or. 404, 177 P. 63; State v. Bateham, 94 Or. 524, 186 P. 5.' (Italics Finally the court said: 'The discretion vested by law in the trial court h......
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State v. Johnson
...Bateham, for example, the court apparently referred to a legal determination in noting that it had lately decided in State v. Bertschinger, 93 Or. 404, 177 P. 63 (1919), that "an accumulation of undetermined cases is sufficient to prevent discharge of the defendant." Bateham, 94 Or. at 527,......
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State v. Kuhnhausen
...that this record, made by a court of general jurisdiction, is a verity; and such entry has been held to be sufficient. State v. Bertschinger, 93 Or. 404, 177 P. 63.' (Italics In the instant case the reason for the continuance as well as for the denial of defendant's motion to dismiss the in......
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State v. Moltzner
...court required a continuance of the unfinished business, is in itself good cause for not dismissing pending indictments. State v. Bertschinger, 93 Or. 404, 177 P. 63; State v. Lee, 110 Or. 682, 687, 224 P. State v. Bateham, 94 Or. 524, 186 P. 5; State v. Goldstein et al., 111 Or. 221, 224 P......