State v. Bock
| Decision Date | 12 January 1907 |
| Parties | STATE v. BOCK. [a1] |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Multnomah County; C.U. Gantenbein, Judge.
Charles Bock was convicted of assault with a dangerous weapon, and he appeals. Reversed, and new trial ordered.
R. Citron and Ed Mendenhall, for appellant.
Bert E Haney, Deputy Dist. Atty., for the State.
The defendant, Charles Bock, was convicted in the circuit court for Multnomah county of the crime of assault, being armed with a dangerous weapon, and appeals from the judgment which followed. His counsel contend that an error was committed in denying a motion to set aside the indictment on which he was tried. The uncontradicted affidavits, filed in support of the motion, copies of which are set out in the bill of exceptions, state in effect that on June 18, 1906, a grand jury was duly drawn, impaneled, and sworn by that court, of which inquisitorial body one Olaf Akeyson was a member; that after Akeyson was so accepted, he learned that witnesses might be called before the grand jury to testify in relation to alleged violations of the election laws at Sellwood, where he resided; that he thereupon explained to the judge, at chambers, that he had legally voted at that place by establishing his right, by affidavit, to exercise such franchise; that on June 19, 1906, in consequence of what he had learned concerning the criminal charges that might be made against his neighbors, he applied to the court to be relieved from further service on the grand jury, which request having been granted, one T.A. Reynolds was selected in his stead, whereupon he resumed his duty as a trial juror which he was then able to discharge; and that, after such substitution, the pretended grand jury returned the indictment herein, which the defendant, before pleading to the merits, moved to set aside on the ground that it was not fund as required by law.
It is argued that Akeyson, having been selected as a grand juror made no application, before he was sworn, to be discharged, or gave any reason why he should not serve, and the court, being satisfied that he was qualified, accepted him; that, after the formation of the jury, as Akeyson had not become sick or for any reason was unable to continue in the discharge of his duty--which are the only reasons given to relieve a grand juror from service (B. & C. Comp. § 1272)--the court was powerless to discharge him or to direct that another person should be drawn to take his place; and that as the organic law and the statutes require that a grand jury shall consist of seven persons, five of whom must concur to find an indictment (Const. Or. art. 7, § 18; B. & C. Comp. §§ 961, 1265), the selection of Reynolds as a grand juror, after the formation of that body, made it consist of eight persons, thereby rendering it incompetent to find an indictment, and hence an error was committed as alleged. Our statute, evidently modeled after the rule generally understood as prevailing at common law, forbids a challenge to the panel from which the grand jury is draw on or to an individual grand juror, unless made by the court, for want of qualification, before the juror is accepted. B. & C. Comp. § 1269. Notwithstanding such prohibition, a motion to set aside an indictment, if interposed before pleading to the merits ( State v. Witt, 33 Or. 594, 55 P. 1053), may be made on the following grounds: "(1) When it is not found, indorsed, and presented as prescribed in chapter 7 of title 18 of this Code; (2) when the names of the witnesses, examined before the grand jury, are not inserted thereon." (B. & C. Comp. § 1349). The chapter and title to which reference is thus made relate to the number of grand jurors who must concur to find an indictment, the indorsements required to be made there on ( Id. § 1294), and the manner of presenting the written accusation ( Id. § 1296).
In State v. Whitney, 7 Or. 386, the defendant at the proper time moved to set aside an indictment returned against him on the ground that at a session of the grand jury an unauthorized person was present and examined witnesses upon whose testimony he was formally charged with the commission of a crime. The motion having been denied, the defendant was tried, convicted, and appealed from the judgment which was rendered against him. In reviewing the action of the court in denying the motion, Mr. Chief Justice Kelly, referring to the provisions of the statute hereinbefore quoted (B. & C. Comp § 1349), says: "These, we hold, are the only two cases for which an indictment can be set aside; and as the section prohibiting any person, other than the district attorney, from appearing before the grand jury, is not in chapter 7, there was no error in the ruling of the court." In United States v. Benson, 31 F. 896, a plea in abatement to an indictment, which is tantamount to a motion to set aside such pleading, was interposed in the United States Circuit Court for the District of California, for the reason that certain of the grand jurors which found the indictment were not...
To continue reading
Request your trial
-
State v. Gortmaker
...6 Defendant's ground for challenging the indictment does not come within this statute. For that reason, and in reliance on State v. Bock, 49 Or. 25, 88 P. 318 (1907), the trial court ruled that ORS 135.510 barred defendant's motion, without considering the merits of the challenge. Defendant......
-
State v. Stout
...analogizing to the rule in State v. Whitney, supra, that statutory grounds for setting aside an indictment were exclusive); State v. Bock, 49 Or. 25, 88 P. 318 (1907) (that the court excused a grand juror for reasons personal to the juror, and not for any of the statutory grounds for excusi......
-
State v. Gortmaker
...of the Oregon Constitution. Notwithstanding this position, the trial court, relying upon ORS 135.510, and the holding of State v. Bock, 49 Or. 25, 88 P. 318 (1907), found that the defendant was prohibited from attacking the grand jury selection procedure on constitutional grounds. The Court......
-
Goodwin v. State
...violated, we do not consider those cases that address violations of statutes regulating grand jury proceedings. See, e.g., State v. Bock, 49 Or. 25, 88 P. 318 (1907).6 For a discussion of the history of the grand jury and Oregon's constitutional provisions concerning that institution, see S......