State v. Jackson

• Decision Date: 04 October 1961
• Citation: 89 A.L.R.2d 1225,365 P.2d 294,228 Or. 371
• Parties: , 89 A.L.R.2d 1225 STATE of Oregon, Respondent, v. James Ernest JACKSON, Appellant.
• Court: Oregon Supreme Court

Page 294

365 P.2d 294

228 Or. 371, 89 A.L.R.2d 1225

STATE of Oregon, Respondent, v. James Ernest JACKSON, Appellant.

Supreme Court of Oregon, In Banc.

Argued Sept. 13, 1961.

Decided Oct. 4, 1961.

Lawrence V. Smart, Jr., Portland, for appellant. On the brief were Smart, Thomas & Bartsch, Portland.

Charles R. Harvey, Deputy Dist. Atty., Portland, for respondent. With him on the brief was Charles E. Raymond, Dist. Atty., Portland.

Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and LUSK, JJ.

LUSK, Justice.

This is a criminal action in which the defendant has taken two appeals, which have been consolidated for hearing. One appeal is from an order of the circuit court denying defendant's motion to dismiss the indictment for unreasonable delay in bringing him to trial. The other is from a judgment of conviction. The former appeal will be considered first.

On May 18, 1960, the grand jury returned an indictment charging the defendant with the crime of knowingly uttering and publishing a forged bank check. On May 27 the defendant was arraigned and on June third he entered a plea of not guilty. He was then represented by an attorney, Mr. Donald C. Layman. The case was set for trial on June 22, but on June 21, the defendant's attorney notified the district attorney's office that the defendant would withdraw his plea of not guilty and enter a plea of guilty. The presiding judge of the circuit court was so advised on the same day and for that reason did not assign the case for trial. On July 1 Mr. Layman moved for leave of court to withdraw as attorney for the defendant and an order granting such leave was entered by the court. The order recites that the defendant was present in court and stated that he was without funds to retain an attorney and requested the court to appoint an attorney to represent him. The court appointed Mr. H. Kent Holman. On July 15 there was a hearing attended by Mr. Desmond Connall, Deputy District Attorney, the defendant, and his attorney, Mr. Holman. The transcript of the proceedings at this hearing is as follows:

'Mr. Connall: State of Oregon versus James Ernest Jackson, C-38937. May it please the Court, this defendant was indicted during the month of May. He was arraigned on the 27th day of May and the matter was continued for plea. On the 3rd of June he entered a plea of not guilty. The matter was continued for trial. Now, at that time Mr. Donald Lehman [sic] was counsel of record. He was granted leave to withdraw as attorney, and Mr. Holman was appointed.

'The defendant is before the Court at this time to advise the Court whether or not he desires to leave the plea of not guilty in the case, have the matter continued to the September term, is that correct?

'Mr. Holman: That is correct.

'The Court: What are your desires in the matter?

'Mr. Jackson: Your Honor, I have been in jail since the 29th of April. I asked for no delay on this trial and it is my understanding under the Statutes of this case I am entitled to a trial within a reasonable period of time. This has been a long term of Court, about forty-five days, and there has nothing happened. I have asked for no postponement and I filed no affidavit for postponement of trial. I think trial should be had as soon as possible.

'Mr. Connall: May it please the Court, we feel the District Attorney in this case because of the change in counsel on the first day of July has shown reasonable cause for continuance in the matter.

'Mr. Jackson: I did not ask Mr. Lehman [sic] to retire in the case, that was his own idea.

'The Court: Well, we have no further jury until September. It will be continued until the first day in the new term.

'Mr. Connall: Fine, your Honor.

'The Court: Set it down for September the 6th.

'Mr. Holman: September the 6th. I wonder if we might have bail reduced in this case from three thousand to fifteen hundred inasmuch as the trial is going over until September?

'Mr. Connall: May it please the Court, the bail in the case now is fifteen hundred.

'Mr. Holman: It is now at fifteen hundred. Thank you very much.

'(Conclusion)'

The next event to be noted is the appearance of the defendant in court on August 12, unaccompanied by an attorney, to inform the court that Mr. Holman had 'done nothing' and to request that the court appoint another attorney in his place. The court complied by appointing Mr. Lawrence V. Smart, Jr., who has represented the defendant ever since. On August 18 Mr. Smart filed a motion, supported by the defendant's affidavit, to dismiss the indictment on the ground that the defendant had not been brought to trial within a reasonable period of time. A deputy district attorney filed a counter affidavit and after a hearing on August twenty-sixth, the motion was denied by the Honorable Arno H. Denecke, circuit judge, in an order entered on September 1. The defendant immediately filed notice of appeal to this court from that order.

The statute governing the question whether the defendant was entitled to have the indictment dismissed is ORS 134.120, which reads 'If a defendant indicted for a crime, whose trial has not been postponed upon his application or by his consent, is not brought to trial within a reasonable period of time, the court shall order the indictment to be dismissed.'

This section is an amendment, adopted in 1959 (Oregon Laws 1959, ch. 638, § 16) of former ORS 134.120, which read:

'If a defendant indicted for a crime, whose trial has not been postponed upon his application or by his consent, is not brought to trial at the next term of the court in which the indictment is triable after it is found, the court shall order the indictment to be dismissed, unless good cause to the contrary is shown.'

The amendment was before the court in State v. Dodson, Or., 360 P.2d 782, 784, but we found it unnecessary to construe it in that case, other than to observe that the 'reasonable period of time' commences to run from the time that the indictment is found. The legislature has substituted a reasonable time for bringing the defendant to trial for the former requirement that it must be done within a definitely fixed time, i. e., within the term succeeding the term in which the indictment was found. The provision of the former statute making the statute inapplicable where the trial was postponed upon the application or by the consent of the defendant, is retained, but the provision that the indictment must be dismissed 'unless good cause to the contrary is shown' is omitted. This omission, however, is without significance, for the question of reasonable time cannot be determined without inquiring into the question whether there was good cause for delay. While it is impracticable to attempt a precise definition of the phrase 'a reasonable time', it may be stated generally that it is such length of time as may reasonably be allowed or required having regard to attending circumstances. Halvorson v. Blue Mt. Prune Growers Co-op., 188 Or. 661, 670, 214 P.2d 986, 217 P.2d 254; Vance v. Mutual Gold Corp., 6 Wash.2d 466, 108 P.2d 799; Colfax County v. Butler County, 83 Neb. 803, 120 N.W. 444.

The Constitution of Oregon provides in Article I, § 10, that 'justice shall be administered * * * without delay.' This guarantee to the citizen of a trial without delay is equated to the right to a speedy trial. In State v. Harris, 101 Or. 410, 415, 200 P. 926, 928, we said:

'The constitutional provision for a speedy trial was not intended to provide a loophole for the escape of one accused of the commission of an offense without trial when the same is had within a reasonable time.'

See, also, State of Oregon v. Kuhnhausen, 201 Or. 478, at page 513, 266 P.2d 698, 272 P.2d 225; State v. Breaw, 45 Or. 586, 588, 78 P. 896.

It follows that the statute and the constitutional provision have substantially the same meaning and, therefore, that the tests heretofore announced by this court which are to be applied in determining whether an accused has been deprived of his right to a speedy trial under the constitution are likewise the tests under the statute. These tests have been stated many times by this court, most recently in State v. Dodson, supra. In the able opinion of Mr. Justice Brand in State v. Kuhnhausen, supra, 201 Or. at page 513, 266 P.2d at page 706, it was said:

"* * * Wholly apart from the statute, the constitutional right of an accused person to a speedy trial contemplates a trial conducted according to fixed rules, regulations, and proceedings at law, free from vexatious, capricious, and oppressive delays. The right is consistent with delays, and, in the final analysis, whether such a speedy trial has been afforded must be determined in the light of the circumstances of each particular case as a matter of judicial discretion. * * *"

Earlier Oregon cases to the same effect were cited by the court.

We are, therefore, to determine whether under the statute, considered in the light of the language of the Kuhnhausen case which we have quoted, the court erred in denying the defendant's motion to dismiss the indictment.

The total time that elapsed between the return of the indictment and the filing of the motion to dismiss was 102 days. Whether this would be considered a reasonable time under other circumstances than those which the record discloses is not the question, but whether the delay is attributable to the fault or neglect of the prosecution or the court. The defendant was seasonably arraigned and his plea entered and his case set for trial within a little more than a month after the return of the indictment. Defendant concedes in his brief that so far an unreasonable time had not elapsed. The trial was not held, however, on the day set, namely June 22, because of a difficulty between the defendant and his then attorney, Mr. Layman, which led to Mr. Layman's retirement from the case, and because of the notice given by Mr. Layman of the defendant's intention to withdraw his...