State v. Cloran
| Decision Date | 26 September 1962 |
| Citation | 75 Adv.Sh. 217,233 Or. 400,374 P.2d 748 |
| Parties | , 98 A.L.R.2d 732 The STATE of Oregon, Appellant, v. Ray CLORAN, Respondent. |
| Court | Oregon Supreme Court |
Harold Banta, Baker, for the motion.
Jesse R. Himmelsbach, Jr., Dist. Atty. for Baker County, Baker, contra.
Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, SLOAN, O'CONNELL and GOODWIN, JJ.
This cause is before us upon a motion of the defendant (respondent) for an order dismissing the appeal undertaken by the state (appellant). The appeal challenges an order entered April 26, 1962, by the circuit court for Baker County which arrested the entry of judgment in this case. The latter is based upon an indictment, returned by the grand jury of Baker County, which charged the defendant with the crime of perjury. Before the defendant moved to arrest judgment a jury had returned a verdict of guilty. The defendant, in support of his motion to dismiss the state's appeal, argues (1) an order in arrest of judgment, as authorized by ORS 136.810 to 136.840, is intermediate and, therefore, not final as that term is defined in State v. Brown, 5 Or. 119, and (2) since the court in this case upon arresting judgment did not order the defendant's discharge from custody but directed the sheriff to retain him to abide a new indictment in the event one was returned, those circumstances indicate further that the order which the state wishes to challenge is not final.
March 10, 1959, after a trial in the circuit court for Baker County upon an indictment, which the state claims charged the defendant in proper form with the felony of perjury, the jury returned a verdict of guilty. Immediately following the filing of the verdict a jury, acting under our Habitual Criminal statute, returned another verdict that found the defendant was the individual who had been adjudged guilty on previous occasions of three other crimes as claimed by the state. One of these other purported crimes, according to the state, was a felony which was committed in Oregon. The other two were committed, so the state claims, in other jurisdictions. The state contends that both of them were felonies within the purview of our laws.
April 28, 1959, the circuit court entered judgment which adjudged the defendant guilty of the crime of perjury and sentenced him to life imprisonment. June 15, 1959, the defendant gave notice of appeal. In that manner there was begun a series of legal stratagems which included two appeals to this court (apart from the one at bar), a proceeding for a writ of habeas corpus, and a proceeding for post-conviction relief.
In the post-conviction proceeding the circuit court for Marion County entered a judgment order on October 13, 1961, which recited and ruled:
'(1) That defendant's Demurrer to plaintiff's [Cloran's] first and third causes of action was previously sustained by the Court and that trial was had on the issues presented by plaintiff's second cause of action.
'(2) That the prior conviction of crime against the plaintiff in the Federal District Court of Idaho was for the crime of Theft from Interstate Commerce and that said conviction was not such as would be a prior conviction of felony within the meaning of the Oregon Habitual Criminal Statute as it existed at the time of the trial of plaintiff in the Baker County Circuit Court.
'(3) That said prior conviction would not therefore support or justify a habitual criminal finding or sentence against plaintiff and that therefore the habitual criminal proceedings against plaintiff, and the sentence imposed pursuant thereto, in the Baker County Circuit Court are void and invalid in their entirety * * *.
'(4) That, by virtue of the above finding and disposition there is no necessity for this Court to decide any further questions raised by plaintiff's second cause of action.
'Wherefore, it is hereby ordered and adjudged that Judgment be entered herein against the plaintiff (Ray Cloran) and in favor of the defendant (Warden Gladden) on defendant's Demurrer to plaintiff's first and third causes of action.'
The judgment order vacated the sentence of life imprisonment as void and remanded Cloran (the defendant in the case at bar) to Baker County 'for further proceedings in accordance with this judgment.'
March 29, 1962, Cloran filed the motion in arrest of judgment which we have mentioned and which underlies the cause at bar. It stated, in the words which we now quote, the issue which it submitted:
'* * * upon the ground and for the reason that the facts stated in the indictment upon which said verdict was based do not constitute a crime.'
April 26, 1962, the Circuit Court for Baker County sustained the motion in arrest of judgment by an order which declared:
'* * * the facts stated in the indictment returned by the grand jury on December 19, 1958, and seeking to charge the defendant with the crime of perjury, do not constitute a crime, and it is therefore ordered that the jury's verdict dated March 10, 1959, purporting to find him guilty as charged in the indictment, is vacated and held for naught, and that no judgment be rendered thereon, and the said indictment is hereby in all things set aside and the defendant is restored to the same situation in which he was before the said indictment was found.'
The defendant was not, as we have noted, discharged from custody, but was held, as permitted by ORS 136.830, to await a new indictment if one was returned.
The district attorney did not resubmit the case to the grand jury but appealed. The defendant contends that an appeal cannot be taken from an order which arrests the entry of judgment.
ORS 138.060 provides:
'The state may take an appeal to the Supreme Court from a judgment for the defendant on a demurrer to the indictment or from an order of the court arresting the judgment.'
It will be noticed that if the appeal is taken from the disposition of the cause which the court makes in sustaining a demurrer to the indictment the state must see to it that judgment is entered before notice of appeal is given. An order which sustains a demurrer is not final and cannot support an appeal: State v. Davis, 207 Or. 525, 296 P.2d 240; State v. Berry and Walker, 204 Or. 69, 267 P.2d 993, 995, 282 P.2d 344, 347; and State v. Brown, 5 Or. 119.
Although ORS 138.060 restricts appeals by the state to judgments which were entered after demurrers were sustained, it uses the word 'order' when it designates the type of ruling, concerning arrest of judgment, that the state may challenge on appeal.
Before the revision into Oregon Revised Statutes the provision of our laws which is now ORS 138.060 was § 26-1305 O.C.L.A. and read as follows:
'An appeal to the supreme court may be taken by the state from the judgment or order of the circuit court, in the following cases:
'(1)...
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State v. Robertson
...§ 227, in Oregon Laws 1845-64, at 480. ORS 138.060 (1961 ed.) An order merely sustaining a demurrer was not appealable. State v. Cloran, 233 Or. 400, 374 P.2d 748 (1962), State v. Davis, 207 Or. 525, 296 P.2d 240 (1956). A 1963 amendment added an appeal from an order sustaining a plea of fo......
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...293 Or. at 406-07,649 P.2d 569 (noting that the legislation was intended, inter alia, to supersede the "rule" of State v. Cloran, 233 Or. 400, 404, 374 P.2d 748 (1962), and related cases that an order sustaining a demurrer was not final and, hence, not Thus, the court concluded that "becaus......
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Barnett v. Gladden
...fact that an indictment may allege a conclusion and not particular facts is not grounds for post-conviction hearing relief. State v. Cloran, 233 Or. 400, 374 P.2d 748, 377 P.2d 911, 378 P.2d 961; Smallman v. Gladden, 206 Or. 262, 291 P.2d The petitioner also contends that his sentence to li......
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Parker v. Gladden
...of the indictment to state facts sufficient to constitute a crime is not a ground for post-conviction relief. State v. Cloran, 233 Or. 400, 414, 374 P.2d 748, 98 A.L.R.2d 732; 377 P.2d 911, 378 P.2d 961 Other courts have likewise held that mere reversible error is not grounds for post-convi......