State v. Haynes
| Decision Date | 24 October 1962 |
| Citation | 375 P.2d 550,232 Or. 330 |
| Parties | STATE of Oregon, Respondent, v. William Woodman HAYNES, Appellant. |
| Court | Oregon Supreme Court |
Thomas J. Curran, Portland, argued the cause and submitted a brief for appellant.
Oscar D. Howlett, Deputy Dist. Atty., Portland, argued the cause for respondent. With him on the brief was Charles E. Raymond, Dist. Atty., Portland.
Before McALLISTER, C. J., and ROSSMAN, PERRY, GOODWIN and DENECKE, JJ.
The defendant Haynes was charged by an indictment returned in Multnomah county on February 17, 1961 with the crime of burglary not in a dwelling. The trial of the charge against defendant did not commence until October 16, 1961, having been postponed several times for sufficient reasons not necessary to recite here.
During the trial the defendant objected to certain testimony of a witness for the state and moved for a mistrial. The court allowed defendant's motion, declared a mistrial and continued the case for trial at a later date to be fixed by the court. At the request of the defendant the case was set over to the November term of the circuit court.
When the case was called for trial on November 6, 1961, the defendant filed a motion to dismiss the indictment on the ground that he had been once in jeopardy for the same offense. The court denied the defendant's motion to dismiss, whereupon defendant gave notice of appeal and moved the court to stay further proceedings pending the determination of the appeal. The court allowed the motion and ordered that the trial of the charge 'be stayed pending the outcome of the appeal on the motion to dismiss.'
Both the statutes and our decisions make it clear that the order denying defendant's motion to dismiss the indictment was not an appealable order. See State v. Endsley, 214 Or. 537, 331 P.2d 338 (1958), where both the pertinent statutes and our earlier decisions are cited in a carefully considered opinion by Mr. Justice Lusk. See also State v. Sherwood, 214 Or. 594, 600, 332 P.2d 96 (1958), cert. denied 365 U.S. 883, 81 S.Ct. 1032, 6 L.Ed.2d 193 (1961); State v. Foster, 229 Or. 293, 296, 366 P.2d 896 (1961); State v. Jairl, 229 Or. 533, 539, 368 P.2d 323 (1962); State v. Gates, Or. 368 P.2d 605 (1962).
The court below erred in granting a stay pending the determination of this appeal. It is true that when an appeal is authorized by statute, as in State v. Jackson, 228 Or....
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State v. Salzmann
...in this state is a statutory privilege and not a constitutional right." 214 Or. at 547, 331 P.2d 338. Moreover, in State v. Haynes, 232 Or. 330, 375 P.2d 550 (1962), the defendant appealed from an order denying a motion to dismiss on the ground of former jeopardy. The Supreme Court, citing ......
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Barnett v. Gladden
...an appeal would not lie from such an order. ORS 138.040 authorizes an appeal only from 'a judgment on a conviction.' State v. Haynes, 232 Or. 330, 375 P.2d 550 (1962), held that an order denying a motion to dismiss the indictment on the ground that the defendant had once been in jeopardy fo......
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Hanley v. Zenoff
...295 P.2d 464. This rule however has no application to the situation where an appeal not authorized by statute is taken. State v. Haynes, 232 Or. 330, 375 P.2d 550. Also, as a second exception, it does not apply to divest a trial court of jurisdiction to proceed in matters not involved in th......