State v. Casey

• Decision Date: 24 July 1923
• Citation: 108 Or. 386,217 P. 632
• Parties: STATE v. CASEY.
• Court: Oregon Supreme Court

217 P. 632

108 Or. 386

STATE v. CASEY.

Supreme Court of Oregon

July 24, 1923

In Banc.

Appeal from Circuit Court, Multnomah County; J. P. Kavanaugh, Judge.

On motion to recall mandate. Motion denied.

For former opinion, see 213 P. 771.

Charles W. Garland, of Portland, for the motion.

BROWN J.

The defendant has filed a motion to recall the mandate in the case of State v. Casey, decided March 20, 1923, reported in 213 P. 771. For a full statement of facts, see that case.

Dan Casey was accused by the grand jury of the circuit court of the state of Oregon in and for Multnomah county, of the crime of murder. Upon trial he was convicted of murder in the first degree, without recommendation, and on November 26, 1921, the court in obedience to the command of section 1903 Oregon Laws, reading:

"Every person convicted of murder in the first degree shall be punished with death, except when the trial jury shall, in its verdict, recommend life imprisonment, in which case the penalty shall be life imprisonment. * * *"

--sentenced the defendant to be executed on the 26th day of January 1922, in the manner provided by law. An appeal was taken to this court and a certificate of probable cause was granted staying execution of the judgment. pending the appeal.

At the hearing in this court it was found that the defendant had been convicted upon a trial free from error, and- -"that the judgment of the court below in this cause rendered and entered be, and the same is, in all things affirmed." Thereafter, a stipulation was filed extending the defendant's time in which to file a petition for rehearing. No petition was filed. On June 18 1923, the mandate was transmitted to the circuit court of Multnomah county, Or., and entered of record therein, and on June 21, 1923 it was ordered and adjudged by the court that the defendant be executed on the 24th day of August 1923, in the manner provided by law. "Mandate," as used in practice here, is the official mode of communicating the judgment of this court to the circuit court. 5 Words and Phrases.

On June 22, 1923, the defendant filed a motion in this court, reading:

"Comes now Dan Casey, the above-named defendant and appellant, and moves the court for an order recalling the mandate from the circuit court of Multnomah county, and in lieu thereof to substitute a mandate in which the direction to the lower court is to sentence the defendant to life imprisonment, or to grant him a new trial, for the reason that, while the evidence is sufficient to sustain the judgment, it is not sufficient to warrant the extreme penalty of the law, owing to the fact the codefendant Burns has been acquitted on the same evidence which sustains the death penalty in this case. This motion is supported by an affidavit of the defendant and by the record now in the files of the court. * * *

"Charles W. Garland."

The attached affidavit referred to was made by the defendant and asserts:

"That during my second trial and upon the one that rests my conviction, my leading attorney, the one who had secured all the testimony which had been presented at the former trial which resulted in a disagreement of the jury, was intoxicated to such an extent that many matters material to my defense were omitted or presented in a less favorable way than they would have been done had my attorney been sober."

The alleged omissions refer to the contradictions and bias of witnesses. Defendant's affidavit avers that his habitation was searched without a warrant, and that he was unlawfully detained before he was given a hearing; that his attorney failed to call an alibi witness, and that an X-ray picture was taken of his wounded arm over his protest.

At the threshold we are met with the consideration of the question of our power to recall a mandate that has not only been lawfully issued and transmitted, but which has been acted upon by the court below in accordance with law. It is a general rule that appellate jurisdiction of the Supreme Court over a case ceases when the case has been determined and remanded to the lower court and the mandate has been entered of record in that court. See note, 11 Ann. Cas. 865. However, a mandate may be recalled by the appellate court for the purpose of correcting errors, or for making clear the meaning and effect of the judgment made in the appellate court. State v. Pennoyer, 26 Or. 205, 214, 37 P. 906, 41 P. 1104. In Livesley v. Johnston, 47 Or. 193, 82 P. 854, the court said:

"The preponderance of judicial authority concedes the power of a court of record, at any time during the term at which a judgment is rendered, to set it aside, when it was improvidently given in consequence of a false suggestion or under a mistake of facts. It necessarily follows from this principle that, when a court is vested with authority to set aside a judgment or a decree, it also possesses, as an incident to the exercise of that power, the inherent right to recall any writ or order based on the conclusion reached."

In the case at bar, the motion to recall the mandate is not based upon a mistake of fact, nor upon a false legal premise, in our disposition of the cause. After hearing the argument of counsel in the appeal of this cause, the court duly considered all questions contained within the record and determined them in accordance with established law, and thereafter, in due course, the clerk transmitted the court's mandate to the clerk of the circuit court of Multnomah county, Or., where it was entered of record, and, acting thereon, that court, on the 21st day of June, 1923, ordered and adjudged that the defendant be executed according to law, as provided by the statute, on the 24th day of August, 1923. There being neither error of law nor of fact in the mandate or decision, we have no valid reason for recalling that mandate.

This is an appellate court, with jurisdiction and power defined by law. In criminal causes this court is strictly a court of review. As such, we have no authority to reverse or modify the judgment of the lower court when brought before us by the mere affidavit of the defendant. Kearney v Snodgrass, 12 Or. 311, 7 P. 309. By reason of the law's great humanity and its tender regard for life, we will notice the assertions contained in the affidavit. The defendant's affidavit attacks his former attorney on account of his alleged use of intoxicating liquor from a "cached" bottle at the time of the trial. So far as appears from the record, the defendant was entirely satisfied with that attorney during the trial. His criticism comes only after his case has been affirmed upon appeal. His...