State v. Houghton
| Decision Date | 21 March 1904 |
| Citation | 45 Or. 110,75 P. 887 |
| Parties | STATE v. HOUGHTON. |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Multnomah County; A.L. Frazer, Judge.
Charles Houghton was convicted of robbery, and he appeals. Affirmed.
See 71 P. 982.
W.T Hume, for appellant.
A.C Spencer, Dep. Dist. Atty., for the State.
The defendant was tried in December, 1902, on an information charging him with the crime of robbery, and convicted of "assault with intent to rob." Upon appeal the judgment was reversed and a new trial ordered. State v. Houghton, 43 Or. 125, 71 P. 982. He was again tried on the same information, found "guilty as charged," and sentenced to a term in the penitentiary. From this judgment he also appeals.
After the appeal had been taken, it was discovered that the judgment of this court directing a new trial had not been remitted to the court below prior to the second trial, and it is now insisted that the trial court was therefore without jurisdiction. No objection was made to the retrial on the ground that the mandate had not been issued or filed, and the trial court's attention was not called to the omission. It seems to have been assumed by all parties that the mandate had been regularly issued and duly entered, and the defendant states that such was the fact in an affidavit made by him in support of a motion for a new trial. Having thus proceeded to trial without objection, the defendant must be held to have waived the filing of the mandate. 13 Enc.Pl. & Pr. 837; Becker v. Becker, 50 Iowa, 139; Foster v Jordan, 54 Miss. 509; Benzinger Township Road, 135 Pa 176, 19 A. 942. The formal issuing and filing of the mandate was not necessary to the jurisdiction of the trial court or its authority to retry the case. Further proceedings therein, except, perhaps, for special purposes, were suspended pending the appeal. But when the cause was reversed, a new trial ordered, and the appeal finally disposed of, the court below was thereby given authority to proceed with a retrial. The statute requires a certified copy of the judgment of this court on the reversal of a cause, to be remitted to the clerk of the court below (B. & C. Comp. § 1487), and by him entered in the journals ( Id. § 1488). This is the official mode of communicating information of the reversal to the court below, and without a compliance therewith it could not proceed against an objection of the defendant. But it is the judgment reversing the cause and ordering a new trial which gives the trial court authority to proceed, and not the certified copy of such judgment required to be remitted to the clerk of the court below. The latter is but the official evidence, and its production may be waived by the parties, and if, after the reversal, they proceed to trial without objection, they will be held to have made the waiver.
The next point urged is that the jury was improperly drawn and impaneled. It appears that before the case was called for trial some of the jurors on the regular panel had been drawn to serve on a jury in another department of the court, and their names were not then in the jury box. The names remaining in the box were exhausted before the jury in this case was completed, and the court ordered that the names of certain of the persons who had previously been drawn to serve as jurors in the other department, but who in the meantime had been excused, be again put into the box, and from these the jury was completed. The defendant objected to the jurors thus drawn sitting in the case because their names were not in the box at the time the drawing began, and also objected to the entire jury because the names of all the jurors were not in the box at that time. But there was no irregularity or impropriety in the procedure adopted. The statute provides, in effect, that in all the counties of the state except Multnomah 31 jurors shall be drawn and summoned for each term of the circuit court, from which number the grand and trial juries for the term shall be selected. In Multnomah a larger number of jurors may be drawn and summoned when so ordered. B. & C. Comp. § 976. When for any reason the required number of jurors do not attend, or when a part of them have been discharged, the court has the power to order an additional number drawn to fill up the regular panel. Id. § 986. The object of the statute is that there may be a sufficient number of jurors in attendance on the circuit courts in all the counties of the state other than Multnomah for a grand jury and two trial juries, and in Multnomah a sufficient number to dispose of the business of the several departments of the court properly and expeditiously. In the counties outside Multnomah the law contemplates that a jury may be drawn and impaneled although another may at the same time be deliberating upon a verdict, and in Multnomah more than one jury trial may be in progress at the same time. A litigant is entitled to have the jury for the trial of his cause impaneled from the entire panel in attendance upon the court when it can be done. If, however, a jury previously drawn is engaged in a trial or deliberating upon a verdict, it is, of course, impracticable to have the members thereof impaneled in another case; but when they are discharged or excused from further attendance their names should be immediately restored to the jury box, and may be used in completing a jury that has already been commenced. A failure so to restore the names of the excused jurors would probably be a good ground for discharging a jury otherwise impaneled. People v. Edwards, 101 Cal. 543, 36 P. 7.
For the purpose of impeaching the prosecuting witness, the defendant after laying the proper foundation, sought to show by the official reporter of the court that his testimony on the former trial on an important point was inconsistent with that given in the case then pending. The state was...
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Levin v. United States
...late when raised for the first time on motion in arrest of judgment. 16 C. J. 285; People v. Stoll, 143 Cal. 689, 77 P. 818; State v. Houghton, 45 Or. 110, 75 P. 887; State v. White, 71 Kan. 356, 80 P. 589, 6 Ann. Cas. 132; Blocher v. State, 177 Ind. 356, 98 N. E. 118; People v. McGinnis, 2......
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