State v. Blount

• Decision Date: 16 December 1953
• Citation: 264 P.2d 419,200 Or. 35,44 A.L.R.2d 711
• Parties: , 44 A.L.R.2d 711 STATE v. BLOUNT.
• Court: Oregon Supreme Court

Page 419

264 P.2d 419

200 Or. 35, 44 A.L.R.2d 711

STATE v. BLOUNT.

Supreme Court of Oregon, En Banc.

Argued Sept. 22, 1953.

Decided Nov. 18, 1953.

Petitions for Rehearing Denied Dec. 16, 1953.

Charles O. Porter, Eugene, argued the cause and filed a brief for appellant. Ulysses G. Plummer, Portland, for appellant on petitions for rehearing.

C. E. Luckey, Dist. Atty. for Lane County, Eugene, argued the cause for respondent. With him on the brief was W. Keith Rodman, Deputy Dist. Atty. for Lane County, Eugene.

LUSK, Justice.

Defendant was convicted of the crime of rape committed upon his minor daughter, and has appealed.

He assigns error (1) to the court's denial of his motion for postponement of the trial, and (2) to the court's refusal to order the state to advance funds for the payment of witness fees and travel expenses of two persons who, it is claimed, would have been material witnesses for the defendant. A third assignment of error was abandoned on the argument. We will consider Assignments of Error Nos. (1) and (2) in inverse order.

On a date not disclosed by the bill of exceptions Charles O. Porter, attorney for defendant, filed a motion for the issuance of two certificates in furtherance of the serving of summons on Tom Nicholson, principal of Moreno School, Moreno, California, and Mrs. Marvella Blount, with her son, Eugene Victor Blount, Jr. The motion recited that it was based on § 26-1816, O.C.L.A. (a part of the Uniform Act to Secure the Attendance of Witnesses fro Without a State in Criminal Proceedings), and on the affidavit of Mr. Porter dated March 16, 1953. The affidavit showed that Nicholson was recently the teacher of Diane Blount, the prosecutrix in the case at bar, and 'as such he can testify authoritatively and impartially as to her reputation in the community for truth and veracity. His presence would be needed but for one day and arrangements could be made for him to drive up with other witnesses.' The affidavit further showed:

'Marvella Blount was, until recently the wife of the defendant. Her son Eugene Victor Blount, Jr., according to testimony by the prosecutrix in the preliminary hearing, witnessed the alleged criminal act. Furthermore, the boy can testify as to his older sister's jealousy and her expressed wish to have the defendant sleep with her just as he did with Eugene, Jr., and Eugene's two year old sister. The presence of the little boy would only be needed for one day and transportation to Eugene Oregon, could be arranged for him and his mother with Joseph Blount, 4174 Highland Place, Riverside, California.'

On March 16, 1953, the Hon. G. F. Skipworth, circuit judge, issued two certificates, as authorized by § 28-1816, O.C.L.A. By one certificate he recited that the presence of Tom Nicholson, principal of Moreno School, Moreno, California, is required for one day, and that said Tom Nicholson is a material witness for the defendant, and that his transportation and expenses will be taken care of by the defendant and his friends. By the other certificate the judge recited that

'Eugene Victor Blount, Jr., four or five years old, is a material witness in the above matter * * *. His presence is required for one day, namely March 23rd, 1953. The Court is informed that said boy is now living with his mother, Marvella Blount, until recently the wife of the accused, at 511 Mission Boulevard, Riverside, California, and that she may still be working at Sheets Restaurant, 3847 Main Street, Riverside, California.

'Joseph Blount, 4174 Highland Place, Riverside, California, is a brother of the defendant, and it has been indicated that he may be able to bring the boy and his mother to the trial in the above matter, and that the defendant will be responsible for unreimbursed expenses of such a trip.'

The witnesses did not come, and, at the commencement of the trial on March 23, 1953, seven days after the issuance of the certificates, counsel for defendant moved for a continuance because of the absence of these witnesses. The motion was denied. Later in the trial, while the defendant was on the witness stand, counsel for defendant offered to prove that 'We have made every attempt to get Gene Blount, Jr., and that we could not get him because we did not have the $200 necessary to bring him up here by order of the court, Riverside County.' The offer of proof was denied, but the defendant was permitted to testify that the proposed witness, Tom Nicholson, was not at the trial because he, the defendant, was unable to raise the money for his transportation, and that Judge Waite, of the Superior Court for Riverside County, California, had ordered that the money be advanced.

The Uniformed Act above referred to was enacted in 1937 and appears as §§ 26-1815 to 26-1820, both inclusive, O.C.L.A. The Act has not heretofore been before this court for construction. It has its counterpart in 40 of our sister states (including California) and in Puerto Rico. See 9 U.L.A. '52 P.P., p. 12. It was adopted for the purpose of enabling the courts of this state, through the voluntary cooperation of the courts of another state having the same legislation, to secure the attendance of witnesses from such other state to give testimony in a criminal prosecution or grand jury investigation in Oregon.

Section 26-1816, O.C.L.A., provides:

'If a judge of a court of record in any state which by its laws has made provision for commanding persons within that state to attend and testify in this state certifies under the seal of such court that there is a criminal prosecution pending in such court, or that a grand jury investigation has commenced or is about to commence, that a person being within this state is a material witness in such prosecution, or grand jury investigation, and that his presence will be required for a specified number of days, upon presentation of such certificate to any judge of a court of record in the county in which such person is, such judge shall fix a time and place for a hearing, and shall make an order directing the witness to appear at a time and place certain for the hearing.

'If at a hearing the judge determines that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in the prosecution or a grand jury investigation in the other state, and that the laws of the state in which the prosecution is pending or grand jury investigation has commenced or is about to commence (and of any other state through which the witness may be required to pass by ordinary course of travel), will give to him protection from arrest and the service of civil and criminal process, he shall issue a summons, with a copy of the certificate attached, directing the witness to attend and testify in the court where the prosecution is pending, or where a grand jury investigation has commenced or is about to commence at a time and place specified in the summons. In any such hearing the certificate shall be prima facie evidence of all the facts stated therein.

'If said certificate recommends that the witness be taken into immediate custody and delivered to an officer of the requesting state to assure his attendance in the requesting state, such judge may, in lieu of notification of the hearing, direct that such witness be forthwith brought before him for said hearing; and the judge at the hearing being satisfied of the desirability of such custody and delivery, for which determination the certificate shall be prima facie proof of such desirability may, in lieu of issuing subpoena or summons, order that said witness be forthwith taken into custody and delivered to an officer of the requesting state only after the tender of payment of the mileage and per diem herein provided for.

'If the witness, who is summoned as above provided, after being paid or tendered by some properly authorized person the sum of 10 cents a mile for each mile by the ordinary traveled route to and from the court where the prosecution is pending and five dollars for each day, that he is required to travel and attend as a witness, fails without good cause to attend and testify as directed in the summons, he shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this state.'

Section 26-1817, O.C.L.A., provides:

'If a person in any state, which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions, or grand jury investigations commenced or about to commence, in this state, is a material witness in a prosecution pending in a court of record in this state, or in a grand jury investigation which has commenced or is about to commence, a judge of such court may issue a certificate under the seal of the county stating these facts and specifying the number of days the witness will be required. Said certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this state to assure his attendance in this state. This certificate shall be presented to a judge of a court of record in the county in which the witness is found.

'If the witness is summoned to attend and testify in this state he shall be tendered the sum of 10 cents a mile for each mile by the ordinary traveled route to and from the court where the prosecution is pending, and five dollars for each day that he is required to travel and attend as a witness. A witness who has appeared in accordance with the provisions of the summons shall not be required to remain within this state a longer period of time than the period mentioned in the certificate, unless otherwise ordered by the court. If such witness, after coming into this state, fails without good cause to attend and testify as directed in the summons, he shall be punished in the manner provided for the punishment of any witness who disobeys a subpoena issued...