State v. Holloway

• Decision Date: 09 August 1910
• Citation: 110 P. 397,57 Or. 162
• Parties: STATE v. HOLLOWAY.
• Court: Oregon Supreme Court

110 P. 397

57 Or. 162

STATE v. HOLLOWAY.

Supreme Court of Oregon

August 9, 1910

Appeal from Circuit Court, Multnomah County; Earl C. Bronaugh Judge.

Chester C. Holloway was convicted of assault with a dangerous weapon and he appeals. Affirmed.

Arthur I. Moulton, for appellant.

A.M Crawford, Atty. Gen., Geo. J. Cameron, Dist. Atty., and J.H Page, Deputy Dist. Atty., for the State.

MOORE C.J.

The defendant, Chester C. Holloway, was convicted of the crime of assault with a dangerous weapon, and appeals from the resultant sentence, assigning as error the action of the court in denying his pleas of former jeopardy. A motion has been interposed by the district attorney to affirm the judgment on the ground that the plea was not suitably made, and that copies thereof are improperly included in the transcript. No bill of exceptions has been secured in this cause, but there was filed with our clerk a transcript on appeal containing a copy of the indictment and of the journal entries made herein, showing the defendant's arraignment, his plea of not guilty, trial, that, after having been out all night and being unable to reach a verdict, the jury were discharged the following noon, that the defendant's pleas were overruled and exceptions allowed, and that another trial was had resulting in the judgment indicated. The first plea was subscribed and sworn to by the defendant's attorney and filed February 12, 1909, and the other plea, which was not signed or verified, was filed March 11, 1909, the day the second trial was commenced. As the pleas practically present the same question, that latter only will be set forth, and is as follows: "The defendant pleads that he has already been acquitted of the crime charged in this indictment by the above-entitled court on the 17th day of November, 1908. This plea is based upon the following specific facts, to wit: On Friday, the 13th day of November, A.D.1908, in the above-entitled court, the said defendant was put upon his trial upon the said indictment, and a jury between the state of Oregon and said defendant upon said indictment was in due form of law drawn, impaneled, charged and sworn to well and truly try the said issue, and the said jury, without the consent of the said defendant, have been discharged and separated without rendering any verdict in said cause; that at the time said jury were discharged and separated the said defendant was, by order of the above-entitled court, confined and held in the corridor of the county jail in the city of Portland, Or., and that neither said defendant nor his counsel was present in court when said jury was discharged and separated; that said jury when they were discharged as aforesaid had not considered the evidence in said cause a reasonable length of time, and there was, when said jury was discharged, a reasonable probability that said jury would agree upon a verdict, if given further time within which to reach an agreement; that there was no urgent necessity or special cause for the discharge of said jury, and that said jury was irregularly discharged; that said court did not find that said jury could not reach an agreement, and did not enter any order to that effect upon its records, nor did said court enter upon its records any order or finding that there was any necessity for the discharge of said jury. The defendant pleads that the above facts show conclusively that the defendant cannot by the law of the land be again put upon his trial upon the said indictment." If a party is formally accused of a misdemeanor and has been held to answer the charge, his personal appearance is unnecessary, and he may be represented by counsel who is authorized to enter a plea for him.

B. & C Comp. § 1336; State v. Waymire, 52 Or. 281, 97 P. 46, 21 L.R.A. (N.S.) 56; State v. Sullivan, 52 Or. 614, 98 P. 493; Curran v. State, 53 Or. 154, 99 P. 420. In cases of felony, however, our statute regulating the procedure requires every plea to be oral and entered in the journal of the court. B. & C. Comp. § 1367. The latter enactment is probably a recognition of the ancient rule which demanded that a party accused of treason should plead orally, unless he was found by a jury called for that purpose to be mute by visitation of God, whereupon his trial...