State v. Hosmer

• Decision Date: 16 June 1914
• Citation: 142 P. 581,72 Or. 57
• Parties: STATE v. HOSMER. [d]
• Court: Oregon Supreme Court

142 P. 581

72 Or. 57

STATE v. HOSMER. ^[d]

Supreme Court of Oregon

June 16, 1914

Department 2.

Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge.

J. E Hosmer was convicted of libel and appeals. Affirmed.

Walter C. Winslow, of Salem, and Robert Down, of Portland, for appellant. J. A. Carson, of Salem, and G. C. H Corliss, of Portland (Ernest Ringo, Dist. Atty of Salem, and A. M. Crawford, Atty. Gen., on the brief), for the State.

McNARY J.

The defendant, editor of a newspaper at Silverton, Or., was convicted on the 31st day of October, 1913, of the crime of libel caused by the publication of a pamphlet bearing the title "The Escaped Nun from Mt. Angel Convent, or the Last Stand of Desperate Despotism." The indictment, which was returned by the grand jury of Marion county, on the 20th day of August, 1913, contains the whole of the published article, which is omitted by reason of its prolixity. The article in narrative form recounts the experiences of one Miss Lasenan, whom the authors assert is an escaped nun from the Mt. Angel convent, and is in brief that on a Thursday night in June, 1913, Mary Lasenan, robed in the conventional garb of the convent at Mt. Angel, came to the Christian Church of Silverton and inquired for the pastor, who, responding to her call, was told by the nun that she was seeking refuge from the convent. After secreting herself in the basement of the church until the service hour was over, Miss Lasenan, in the presence of the pastor of the church and four of his parishioners, stated that about six months ago she was kidnapped on the streets of Portland, while walking from her place of work to that of her abode, and taken as a prisoner, and confined in the convent at Mt. Angel, Or.; that she was forced to do all manner of servile work as a penance for her past sins, and was frequently subjected to abuse by the priests and Mother Superior; that she had made her escape while the priests were engaged in their evening meal, and if apprehended by them she would be murdered. Continuing, the article recites the commission, by the priests, of many acts of lawlessness which, if true, would invite the avenging hand of justice. Upon arraignment, the defendant entered a plea of not guilty, whereupon the trial of the case was set for October 29, 1913. On October 25th defendant moved the court for an order of continuance until the January, 1914, term of court. This motion was denied, and the denial thereof supplies the first assignment of error. The motion for a continuance is based upon the affidavits of 10 individuals who claim to have some familiarity with the circumstances surrounding the absence of Mary Lasenan. The showing may be epitomized as follows: That for a time prior to October 25, 1913, Mary Lasenan had been living in the household of W. C. Garner of Portland, Or.; that promptly following the setting of the case for trial, a subpoena was issued for her and forwarded to the sheriff of Multnomah county, who was given instructions as to her whereabouts; that upon investigation the sheriff ascertained the witness was not at her former abode, but had fled therefrom, it being declared for her own safety, on account of an injury sustained by a thrown missile while sojourning at the Garner home, and that, if present, the witness would testify to the truth of the matters contained in the pamphlet.

The crucial point in the showing is whether facts sufficient are set forth from which the court could judge whether there was reasonable grounds to believe the attendance of the absent witness could be procured at any time. To illumine this phase of the case, we must advert to the affidavits filed in support of the motion for a continuance, touching the matter under consideration.

Mr. Walter C. Winslow, one of the attorneys for defendant, recounts that "defendant, his attorneys and friends have used every effort within their power since the time the said case was set for trial herein to have the said Mary Lasenan where she could be reached and produced as a witness for the defense at said trial; that the inability of the defendant to produce this witness at this time is due, as affiant believes, to the unlawful attacks and assaults which have been made upon her life by persons unknown to affiant or the defendant's attorneys or friends."

Mr. Robert H. Down, one of the attorneys for defendant, in his affidavit says:

"I firmly believe that Mary Lasenan will be present within the jurisdiction of this court, where she will be subject to subpoena before the 1st day of January, 1914; that I base this belief upon the intimations and promises of her friends."

Mr. W. C. Garner, in whose home it is claimed the witness found shelter, says:

"That I am informed and believe that Mary Lasenan will return to Portland, Or., before the end of the present year in order to be present at the trial of the said case as a witness for the defendant J. E. Hosmer. * * * That I know Mary Lasenan to be a truthful person, and believe that she will return to Portland, Or., to give evidence as she promised, but at the present time I have been unable to get into communication with her, and do not know her present whereabouts."

Agnes J. Garner, says:

"That Mary Lasenan is at present with friends at a place unknown to me. She will return to Portland before the holidays. I am unable to give the exact date of her return, but know same will be in the near future."

Mr. John A. Carson, of counsel for the state, subscribed to an affidavit in opposition to the motion for a continuance, in which he declared that the injury inflicted upon the person of Mary Lasenan was the product of a conspiracy conceived by the witness and her friends; that following the injury Mary Lasenan was taken to the Good Samaritan Hospital in Portland, where she remained for a considerable time under the assumed name of Mary Smith, until she suddenly left for Vancouver, in the province of British Columbia, from which place she traveled to Seattle, and while there was visited by a son of W. C. Garner, who brought the witness to Portland, Or., and now claims to be her lawful husband, and who had informed defendant's representatives that his wife, formerly Mary Lasenan, would not appear as a witness for either party to the criminal action.

Without a discordant note, this court has held through a long line of decisions that the granting or refusing of a continuance in a criminal case rests in the sound discretion of the trial court, and, unless the decision is manifestly wrong and arbitrary, involving an abuse of sound discretion, it will not be reversed on appeal. State v. O'Neil, 13 Or. 183, 9 P. 284; State v. Hawkins, 18 Or. 478, 23 P. 475; State v. Fiester, 32 Or. 260, 50 P. 561; State v. Howe, 27 Or. 146, 44 P. 672; State v. Breaw, 45 Or. 587, 78 P. 896; State v. Walton, 51 Or. 575, 91 P. 495; State v. Walton, 53 Or. 562, 99 P. 431, 101 P. 389, 102 P. 173; State v. Finch, 54 Or. 482, 103 P. 507. Applying this settled doctrine to the situation brought into view by the affidavits, it will appear that there are no facts set out showing a probability of, and giving assurance of, the attendance of the absent witness at the time which it was proposed to postpone the case, namely, January, 1914, term. The affidavits must state the facts on which the belief of a subsequent attendance is founded, so that the court may say that such belief is a well-founded reasonable expectation, and not a mere hope. It is not sufficient for the affidavits to state merely that affiants are informed of and believe in the existence of a certain ground, but they must go further and state the facts on which their belief is predicated, so that the court may judge as to whether or not their conclusions are reasonable and well founded. In considering the same subject-matter, Mr. Justice Lord, in State v. O'Neil, supra, said:

"The affidavit states 'that C. M. Miller is a material witness; that he is now in Kansas City, state of Kansas; that his attendance cannot be procured at this term of court, but I am confident I can procure his attendance at the next term of the court.' In this statement there are no facts set out from which the court can judge whether there is reasonable ground to believe that the attendance of the absent witness can be procured at a future day. It is not enough to say, 'I am confident I can procure his attendance at the next term of the court,' but the facts or circumstances upon which such confidence or belief is founded must be set out, so that the court may look into and determine from them whether there is reasonable ground to believe that the attendance of the witness can be procured. 'But if the affidavit,' said Crockett, J., 'had stated explicitly his belief that he could procure their personal attendance at the next term, it would still have been insufficient, unless the reasons for his belief had been set forth, to enable the court to decide whether his belief was well founded, or, if he acted on the information of others, he should have stated the nature and particulars of the information. For the same reason, if a party states, on information and belief, that he can procure the personal attendance of a witness from a distant and foreign country, he should set forth the reasons for his

belief and the nature of his information, that the court may decide whether or not there is reasonable ground to believe that the witness will attend. If continuances could be procured on such affidavits as this, the delays in the administration of justice would soon be intolerable."'

Undeniably great liberality should be extended toward the defendant charged with the commission of a crime in preparing his defense, especially in procuring the attendance of...