State v. Gates

• Decision Date: 16 November 1920
• Citation: 193 P. 197,98 Or. 110
• Parties: STATE v. GATES.
• Court: Oregon Supreme Court

193 P. 197

98 Or. 110

STATE v. GATES.

Supreme Court of Oregon

November 16, 1920

In Banc.

Appeal from Circuit Court, Union County; J. W. Knowles, Judge.

Price Gates was convicted of contributing to the delinquency of a minor, and, his motion in arrest of judgment having been sustained, the State appeals. Affirmed.

The defendant was tried and convicted, by the verdict of a jury of the crime of "contributing to the delinquency of a minor." The verdict of the jury was returned into court on June 24, 1920, and thereafter, on June 26, 1920, and prior to judgment on the verdict, the defendant filed his motion in arrest of judgment on the ground that the indictment does not state facts sufficient to constitute a crime. Having taken the matter under advisement, the court, on August 14, 1920 made and entered an order allowing the motion in arrest of judgment, and the state appeals.

John S Hodgin, Dist. Atty., of La Grande, for the State.

R. J. Green, of La Grande, for respondent.

BENSON J.

The state assigns two grounds of error: (1) That the motion was not filed within the time prescribed by statute; and (2) that the indictment sufficiently states the facts constituting the crime charged.

Considering these in the order mentioned, was the motion filed within the time prescribed in the statute? Section 1559, L. O. L., says "Chapters 7 and 8 of title 2 of the Code of Civil Procedure shall apply to and regulate exceptions and new trials in criminal actions, except that a new trial shall not be granted on the application of the state."

Section 175, L. O. L., being a part of title 2, chapter 8 of the Code of Civil Procedure contains this clause:

"A motion to set aside a judgment and for a new trial, with the affidavits, if any, in support thereof, shall be filed within one day after the entry of the judgment sought to be set aside, or such further time as the court may allow."

Section 1560, L. O. L., being a part of the Code of Criminal Procedure, reads thus:

"A motion in arrest of judgment is an application on the part of the defendant that no judgment be rendered on a plea or verdict of guilty, or on a verdict against the defendant on the plea of a former conviction or acquittal. * * * The motion must be made within the time allowed to file a motion for a new trial, and both such motions may be made together, and heard and decided at once or separately, as the court may direct."

From the foregoing statutory provisions it is apparent that a motion for a new trial may be filed either before or after the entry of judgment, but in any event must be made not later than one day after the entry of judgment. In the present case, the motion in arrest of judgment was made before any entry of...