State v. Fehl

• Decision Date: 17 December 1935
• Citation: 52 P.2d 1118,152 Or. 104
• Parties: STATE v. FEHL.
• Court: Oregon Supreme Court

52 P.2d 1118

152 Or. 104

STATE v. FEHL.

Supreme Court of Oregon

December 17, 1935

In Banc.

Appeal from Circuit Court, Klamath County; G. F. Skipworth, Judge.

Earl H Fehl was convicted on an indictment charging larceny not in a dwelling, and from an order establishing and determining the state's cost bill, defendant appeals.

Appeal dismissed.

H. V Schmalz, of Burns, and George A. Rhoten, of Salem, for appellant.

Ralph E. Moody, Asst. Atty. Gen., for the State.

CAMPBELL, Chief Justice.

On March 18, 1933, appellant and several others were jointly indicted by the grand jury of Jackson county of the crime of larceny not in a dwelling. On appellant's motion, he was granted a separate trial and a change of venue to Klamath county, where he was tried and convicted. Judgment was entered against him on August 7, 1933. From this judgment, no appeal was taken.

On August 24, 1933, the state filed a cost bill, and on the same day defendant filed objections thereto. On February 11, 1935 the court made an order settling and determining the said cost bill, as follows:

"This cause having heretofore come on for hearing on the objections of the defendant, Earl H. Fehl, to the cost bill filed herein, and the court having considered said objections and being fully advised,

"It is considered, and ordered that the following items be and they are, hereby eliminated from the plaintiff's cost bill: [Then follows a list of the eliminated items.]

"That the above items and each and every one thereof be and the same are, hereby eliminated from the cost bill filed by the State of Oregon, and the said State may have judgment against the defendant, Earl H. Fehl, for the costs and disbursements appearing in said cost bill after eliminating said items."

From this order, this attempted appeal is taken.

The Attorney General moved for the dismissal of this appeal on the grounds: (1) Defendant has not appealed from the judgment of conviction, but only from the order settling the cost bill; (2) that there was no service of the notice of appeal on the Attorney General or his assistant, who had charge of the prosecution; (3) that the law does not recognize service by mail of the notice of appeal in criminal cases.

The instant case grew out of some political trouble that existed in Jackson county some time prior to and during the year 1933. It appears that the Governor of this state directed the Attorney General to the circuit court for Jackson county and to conduct an investigation into the violation of the law in that county, and to prosecute any criminal case either in the circuit court of that county or in the circuit court of any other county to which such case should be transferred. Thereupon the Attorney General appointed the Honorable Ralph E. Moody as Assistant Attorney General to represent the Attorney General's office, and to make such investigation and prosecute such criminal cases including the instant case.

1. The appellant contends that neither the Attorney General nor the Assistant Attorney General has any authority to appear in this court and file said motion in this case; that their authority had been exhausted upon the completion of the prosecution in the circuit court, as the Governor's direction went no further.

This contention is untenable. The Attorney General has the authority to appear in the Supreme Court in any matter in which the state is interested without any direction of the Governor.

"He shall appear, commence, prosecute or defend for the state, all causes or proceedings in the supreme court, in which the state is a party or interested, when in his discretion the same may be necessary or advisable." Oregon Code 1930, § 67-505.

The motion was properly made by one having authority to make it.

2. The first ground for dismissal...