State v. Goodall

• Decision Date: 28 November 1916
• Citation: 160 P. 595,82 Or. 329
• Parties: STATE v. GOODALL.
• Court: Oregon Supreme Court

160 P. 595

82 Or. 329

STATE v. GOODALL.

Supreme Court of Oregon

November 28, 1916

On Rehearing, December 12, 1916.

On Rehearing.

In Banc.

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

Scott Goodall was convicted of cruelty to animals in the circuit court on appeal from the justice of the peace, and he appeals. Affirmed on rehearing.

Upon a trial before a justice of the peace, the defendant was convicted of the crime defined by section 2103, L. O. L from which judgment he took an appeal to the circuit court where, upon a trial being had, he was again convicted and sentenced, and now prosecutes his appeal to this court.

Turner Oliver, of La Grande (Joel H. Richardson, of La Grande, on the brief), for appellant. Colon R. Eberhard, Dist. Atty., of La Grande, and Geo. M. Brown, Atty. Gen., for the State.

BENSON J.

The jurisdiction of a justice of the peace to try criminal cases is limited by sections 2411 and 2412, L. O. L., to the crimes enumerated in the former and the maximum penalties named in the latter. Cruelty to animals is not included in the sections mentioned in section 2411, and the maximum penalties named in section 2103 exceed the limit prescribed in section 2412. The power of the justice in this case was confined to conducting a preliminary examination with a view to a subsequent investigation of the charge by a grand jury. The only jurisdiction acquired by the circuit court was simply that of an appellate tribunal. In Evans v. Christian, 4 Or. 375, this court says:

"If the court below had no jurisdiction to proceed, this court, which possesses only appellate jurisdiction, could acquire none by the appeal. And when a question of jurisdiction presents itself in any stage of a proceeding and it is discovered that the court has no jurisdiction either over the parties or the subject-matter of the cause it is the duty of the court, on its own motion, to refuse to proceed further. Any attempt to exercise judicial functions otherwise than as authorized by law would be a nullity, and an idle waste of time."

Nor can the lack of jurisdiction of the subject-matter be waived, 12 Cyc. 229. It follows that the judgment of the lower court must be reversed, and the cause dismissed; and it is so ordered.

On Rehearing.

In the former opinion herein we dismissed the action upon the theory that the justice of the peace before whom the trial was originally had was without other jurisdiction in the premises than that of a committing magistrate, and we did not then consider any other of the questions raised upon the appeal. Since then our attention has been called to the fact that section 2103, L. O. L., upon which the complaint is based, is composed of sections 1 and 2 of an act passed by the Legislature in 1885, and that section 8 of that act survives as section 5642, L. O. L., and reads thus:

"Justices of the peace and police judges shall have concurrent jurisdiction over all offenses committed under this act."

Our former opinion, therefore, was clearly erroneous, and we shall now consider the assignments of error upon which the appeal is based. The charging part of the complaint under which the defendant was tried and convicted reads as follows:

"The said Scott Goodall on the 21st day of September, 1915, in Union county, state of Oregon, did then and there cruelly torment and torture a cow then and there being in said county and state, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Oregon."

To this complaint the defendant interposed a demurrer in the following language:

"Comes now the defendant in the above-entitled case and demurs to the information filed herein for the reason that the same does not state facts sufficient to constitute a crime."

The demurrer was overruled, and a trial was had resulting in the conviction of the defendant. He then appealed to the circuit court, where the same was again argued, submitted, and overruled, whereupon the...