State v. Guglielmo

• Decision Date: 27 March 1905
• Citation: 46 Or. 250,80 P. 103
• Parties: STATE v. GUGLIELMO.
• Court: Oregon Supreme Court

80 P. 103

46 Or. 250

STATE v. GUGLIELMO.

Supreme Court of Oregon

March 27, 1905

On rehearing. Petition denied.

For original opinion, see 79 P. 577.

MOORE, J.

It is contended by defendant's counsel, in their petition for a rehearing, that if it be conceded, as stated in the former opinion herein, that a district attorney in this state possesses the power, formerly exercised ex officio by the Attorney General in England, of exhibiting informations for misdemeanors only, a district attorney in Oregon has no authority in that manner to charge a felony. The legal principle insisted upon challenges the power of the Legislative Assembly to confer upon the district attorney such authority. The only reason that can be assigned to support this point is that such a procedure is violative of the fourteenth amendment to the Constitution of the United States, in that it may result in the deprivation of life or liberty without due process of law. The Supreme Court of the United States, in construing this clause, has settled all controversy on the subject by holding that the prosecution of a person for a felony by an information only constitutes due process of law. Hurtado v. California, 110 U.S. 516 4 Sup.Ct. 292, 28 L.Ed. 232; Bolln v. Nebraska, 176 U.S. 83, 20 Sup.Ct. 287, 44 L.Ed. 382.

The similarity of power exercised ex officio under the rules of the common law by the Attorney General of England, and that employed by a district attorney in this state, lies in the fact that the former was, and the latter, in the absence of legislation on the subject, is, authorized to perform the duties devolving upon him without leave of court. A district attorney may therefore, in his own discretion, file an information charging the commission of any crime committed or triable in the county for which he is elected or appointed. An examination of the rules of the common law, and an investigation of the mode of practice pursued by the Attorney General of England thereunder, necessarily lead to the conclusion that a district attorney in this state, in the absence of any enactment on the subject, possesses the same measure of power exercised by him, and hence is not, like the Master of the Crown Office, obliged to secure leave of court before he can exercise his discretion, but, like such Attorney General, he has authority to file informations charging the commission of misdemeanors. This is the limit to the analogy between the powers of these officers but, to the extent of the similarity indicated, the ancient law is germane and governs, demonstrating that a district attorney in this state possesses plenary power to file informations without permission of court.

His authority, however, so far as it relates to the filing of informations charging the commission of felonies, is not derived from the common law, but directly from the Legislative Assembly. B. & C. Comp. § 1258. The organic law of this state, in commanding the method to be pursued in securing jurors, is as follows: "The Legislative Assembly shall so provide that the most competent of the permanent citizens of the county shall be chosen for jurors and out of the whole number in attendance at the court, seven shall be chosen by lot as grand jurors, five of whom must concur to find an indictment. But the Legislative Assembly may modify or abolish grand juries." Const.Or. art. 7, § 18. The Legislative Assembly, exercising the power thus reserved, passed an act, which was approved February 17, 1899 (Laws 1899, p. 99), authorizing the district attorney of any judicial district in this state to file informations charging persons with the commission of any crimes, defined and made punishable by the laws of Oregon, that have been committed in the county where the information is filed. B. & C. Comp. § 1258. The information specified shall be substantially in the form prescribed for an indictment ( Id. § 1304) except that the words "district attorney" shall be used instead of the words "grand jury" wherever the same occur. Id. § 1259. The information, when filed shall be construed like, and deemed to be in all respects the same as, an indictment, and the same proceedings shall be had, and with like effect, as in cases where indictments are returned by a grand jury. Id. § 1260. Any person within this state can be compelled by subpoena to appear before a district attorney to testify concerning any crime inquired of by him. Id. § 1261. The name of each witness thus examined by the district attorney shall be inserted at the foot of or indorsed upon the information before it is filed. Id. § 1262.

A perusal of the act in question, the substance of which is hereinbefore stated, will show that it is in effect a modification of the grand jury system, whereby that inquisitorial body has, except when in the opinion of the court deemed advisable ( Id. § 1264), been superseded by the district attorney, who can find informations only on the testimony of witnesses taken before him, which tends to show that a crime has been committed in the county, and that there is reasonable cause to believe that the person to be charged is connected therewith and can upon a trial therefor be convicted thereof. The change in the manner of initiating criminal actions is a reasonable exercise by the Legislative Assembly of the power...