State v. Donahue

• Citation: 147 P. 548,75 Or. 409
• Parties: STATE v. DONAHUE.
• Decision Date: 30 March 1915
• Court: Supreme Court of Oregon

147 P. 548

75 Or. 409

STATE v. DONAHUE.

Supreme Court of Oregon

March 30, 1915

In Banc. On rehearing. Former opinion adhered to.

For former opinion, see 144 P. 755.

E. B Dufur, of Portland (Dufur & Myers, of Portland on the brief), for appellant.

E. B Tongue, of Hillsboro, and Geo. M. Brown, Atty. Gen. (Thos. H Tongue, of Hillsboro, on the brief), for the State.

McBRIDE J.

Upon this rehearing we find no reason to recede from the former opinion, reported in 144 P. 755. The first contention is that this court erred in the original opinion in holding that the order requiring a record of the defendant's plea of not guilty to be entered nunc pro tunc was properly made. In addition to the authorities cited in the original opinion sustaining the conclusions there announced upon this question, we here cite In re Wight, 134 U.S. 136, 10 S.Ct. 487, 33 L.Ed. 865, where the court, discussing the authority of the lower court to make an entry nunc pro tunc in the absence of some memorandum of what had actually occurred, says:

"We are satisfied, however, upon an examination of the authorities, that this restriction upon the power of the court does not exist."

In Bilansky v. State, 3 Minn. 427 (Gil. 313), the court, passing upon the right of the lower court to enter an order nunc pro tunc not based upon any written memorandum on file, observes:

"But when the facts stand undisputed, and the objection is based upon the technical point alone that the term has passed at which the record was made up, it would be doing violence to the spirit which pervades the administration of justice in the present age, to sustain it."

In the case at bar the actual fact that the defendant was arraigned and entered his plea of not guilty is not disputed by any affidavit or other evidence, and is conclusively shown by the affidavits of several reputable citizens who were present when the arraignment was made and the plea of not guilty entered. It is evident that section 1984, L. O. L., was not intended to cover cases of felonious taking of logs or timber, but only cases of willful trespass, and taking where no felonious intent existed. It would furnish a very inadequate protection in cases where an irresponsible person might steal thousands of dollars worth of sawlogs and escape with the maximum fine of $1,000. The Legislature never contemplated such an absurdity.

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