State v. Gardner

Decision Date24 October 1898
Citation54 P. 809,33 Or. 149
PartiesSTATE v. GARDNER.
CourtOregon Supreme Court

Appeal from circuit court, Marion county; George H. Burnett, Judge.

The defendant, L.F. Gardner, was indicted, tried, and convicted of the crime of rape, alleged to have been committed by having sexual intercourse with one Mabel Hitchman, a female under the age of 16 years; and, having been sentenced to imprisonment in the penitentiary for the term of 7 years, he appeals, assigning as error the action of the trial court in refusing to grant a new trial on the ground of surprise newly-discovered evidence, insufficiency of the evidence to support the judgment, and because the verdict is against law. Affirmed.

R.J. Hendricks and Tilmon Ford, for appellant.

C.M Idleman, Atty. Gen., and S.L. Hayden, Dist. Atty., for the State.

MOORE J.

As a preliminary matter, it is insisted that the judge before whom he was convicted had no authority to preside at his trial, and that the judgment is void, and should be set aside. The question presented for consideration involves a construction of an act of the legislative assembly providing for an additional circuit judge for the Third judicial district of the state of Oregon. Laws 1893, p. 63. The business of the court in said district is divided into departments, numbered 1 and 2, respectively, and the act in question provides that all criminal proceedings, except as otherwise provided therein, shall be heard and determined in department No. 2, but that it shall be lawful to do any business of said court in either department in which either judge may act. The record shows that Hon. George H. Burnett judge of department No. 1, presided at defendant's trial, and pronounced the sentence which was imposed; but it nowhere appears that the indictment was returned into or that the trial was had in said department. The defendant's counsel, in support of their motion for a new trial, filed affidavits in which the title of the court is given as "Department No. 1," and the briefs on file also contain the same recital, but there is nothing further in the record to show that Judge Burnett was not holding court in place of Hon. H.H. Hewitt, the judge of department No. 2, or that the cause had not been properly transferred to department No. 1. In Baisley v. Baisley, 15 Or. 183, 13 P. 888, it is held, in effect, that, notwithstanding the legislative assembly may create several departments of the same court, there can be but one circuit court in each judicial district, and that under section 9 of article 7 of the constitution of Oregon the jurisdiction of causes is vested in the court, and not in any particular judge or department thereof. Inasmuch as the act under consideration renders it lawful to do any of the business of the court in either department, it is manifest that the clause providing for such division is directory only, and that Judge Burnett had authority to try the case at bar.

Considering the errors assigned in reverse order, the bill of exceptions does not purport to contain a transcript of all the testimony introduced at the trial, and, this being so, it must be presumed that the verdict is supported by the evidence, and that the judgment is according to law. It has been repeatedly held in this court that a motion to set aside a verdict, or for a new trial for insufficiency of the evidence, is addressed to the sound discretion of the trial court and that its ruling thereon cannot be assigned as error on appeal. Bowen v. State, 1 Or. 271, State v Fitzhugh, 2 Or. 227; State v. Wilson, 6 Or. 428; State McDonald, 8 Or. 113: State v. Drake, 11 Or. 396, 4 P. 1204; State v. Becker, 12 Or. 318, 7 P. 329; State v. Mackey, 12 Or. 154, 6 P. 648; State v. Roberts, 15 Or. 187, 13 P. 896; State v. Clements, 15 Or. 237, 14 P. 410; State v. Foot You, 24 Or. 61, 32 P. 1031, and 33 P. 537. Assuming, however, that error can be predicated upon the refusal of the court to set aside the verdict and grant a new trial, we will consider the case as made by the record. The affidavits in support of the motion for a new trial show that Mabel Hitchman testified at defendant's preliminary examination, and also before the grand jury, that the crime was committed May 20, 1897, and the indictment so alleged the fact. At the trial, however, she testified that the overt act occurred a month earlier, and this change is the surprise of which the defendant complains, and which his counsel insist affords ground for a new trial. At the time the testimony was so given, no motion for a continuance was made, and defendant waited until after the verdict was rendered before making any effort to...

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16 cases
  • Mitchell v. Mt. Hood Meadows Oreg.
    • United States
    • Oregon Court of Appeals
    • October 6, 2004
    ...party moved for a continuance so as to respond during the trial, thus possibly eliminating the need for a new trial. State v. Gardner, 33 Or. 149, 152-53, 54 P. 809 (1898); see also Transamerica Title Ins. Co. v. Millar, Inc., 258 Or. 258, 263-64, 482 P.2d 163 (1971); Turman v. Central Bill......
  • Larson v. Heintz Const. Co.
    • United States
    • Oregon Supreme Court
    • October 30, 1959
    ...for setting aside a judgment on appeal or otherwise is held in Friese v. Hummel, 26 Or. 145, 37 P. 458, 46 Am.St.Rep. 610; State v. Gardner, 33 Or. 149, 152, 54 P. 809; Orr v. Orr, 75 Or. 137, 144 P. 753, 146 P. 964. * * * The very presence of an issue of fact is notice to both parties that......
  • Benson v. Birch
    • United States
    • Oregon Supreme Court
    • May 10, 1932
    ... ... litem to give a bond and, under the uniform practice of the ... courts of this state, no bond is required. The rule is ... different, of course, as to a general guardian who, under the ... law, is intrusted with the care, ... 1031, 33 P ... 537; Beekman v. Hamlin, 23 Or. 313, 31 P. 707; ... Elder v. Rourke, 27 Or. 363, 41 P. 6; State v ... Gardner, 33 Or. 149, 54 P. 809; McCormick Machine ... Co. v. Hovey, 36 Or. 259, 59 P. 189; Houser v ... West, 39 Or. 392, 65 P. 82; Crossen v ... ...
  • State v. Evans
    • United States
    • Oregon Supreme Court
    • December 14, 1920
    ...70, 73, 32 P. 1031, 33 P. 537; Elder v. Rourke, 27 Or. 363, 367, 41 P. 6; State v. Childers, 32 Or. 119, 128, 49 P. 801; State v. Gardner, 33 Or. 149, 152, 54 P. 809; McCormick Harvest Machine Co. v. Hovey, 36 Or. 260, 59 P. 189; State v. Crockett, 39 Or. 76, 81, 65 P. 447; Crossen v. Olive......
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