State v. Kuhnhausen

• Decision Date: 17 June 1954
• Citation: 201 Or. 478,272 P.2d 225
• Parties: STATE v. KUHNAUSEN.
• Court: Oregon Supreme Court

Page 225

272 P.2d 225

201 Or. 478

STATE v. KUHNAUSEN.

Supreme Court of Oregon, En Banc.

Argued and Submitted on Rehearing March 31, 1954.

Decided June 17, 1954.

Winston L. Bradshaw, Dist. Atty. for Clackamas County, Oregon City, argued the cause for respondent. With him on the brief was Robert Y. Thornton, Atty. Gen., for the State.

Edward J. Georgeff, Portland, argued the cause for appellant. With him on the brief was Rivon E. Jones, Portland.

BRAND, Justice.

The respondent State of Oregon has moved for a rehearing. In its supporting brief the state presents for our consideration certain propositions not found in its original brief. We granted the rehearing and have reconsidered the case on the merits. In its original opinion this court found it necessary to consider only the defendant's assignment of error No. 1 which reads as follows:

'The Court erred in denying the motions for dismissal of the indictment on the grounds that the same was not tried in the next term of Court from whence the cause was commenced and that there had been a failure of prosecution.'

The decision upon this assignment by a divided court was to the effect that it was the 'mandatory and constitutional duty' of the trial court 'to dismiss the indictment against the defendant upon her motion for such dismissal.' The case is one of profound importance with much to be said upon both sides of the controversy.

We will first direct our consideration to assignment of error No. 1. A bare record of events chronologically arranged will form a convenient basis for consideration of the facts:

                 1  January    1952.   First term of court, Clackamas County begins
                24  January.          Indictment returned against defendant and another
                 4  February.         Defendant, upon arraignment, pleads "not guilty."
                --  February.         Codefendant Williams demurs to indictment
                13  February.         Demurrer sustained and indictment as to codefendant
                                        resubmitted to grand jury
                14  February.         District Attorney moves for an order resubmitting to
                                        the grand jury the indictment as to the defendant
                                        Kuhnhausen
                19  February.         Trial court orders resubmission.
                20  February.         Indictment returned against defendant Kuhnhausen and
                                        codefendant Williams.
                25  February.         Defendant Kuhnhausen pleads "not guilty."
                26  February.         Defendant's attorney resigns and new attorney appointed.
                 4  March.            District Attorney writes to circuit court requesting
                                        trial date for defendant Kuhnhausen and Williams.
                14  March.            Defendant files motion for separate trial.  Motion
                                        allowed.
                31  March.            Trial court enters general order continuing all cases
                                        during first term of 1952 upon the ground "that the
                                        Court did not have time to dispose of such cases during
                                        the first term".
                 1  April.            Second term of court commences.
                20  April.            Trial of codefendant Williams results in conviction.
                 9  May.              District Attorney requests that trial date be set.
                30  June.             Last day of second term.  Court continues all criminal
                                        cases not tried to following term on the ground that
                                        the court did not have time to dispose of such cases
                                        during the second term.
                 1  July.             Third term begins and continues until 7 October.
                 1  July.             District Attorney requests court to set case for trial.
                30  July.             Defendant files motion to dismiss on grounds "that the
                                        same was not tried in the next term of Court from
                                        when the cause commenced, and that there has been a
                                        failure of prosecution".
                30  July.             Hearing held upon the motion.  Defendant personally
                                        present.  Testimony taken and motion denied.
                18  August.           Defendant moved for dismissal on same ground as before
                                        stated.  Motion denied.
                18  August.           Trial begins.  Defendant convicted.
                19  August.           Defendant renews motion to dismiss.
                27  August.           Defendant sentenced to life imprisonment.
                25  September.        Defendant appeals "from that certain judgment entered
                                        against her on or about August 22, 1952".
                

The indictment was filed on 24 January. Thereafter a demurrer filed by codefendant Williams was sustained, and the motion for resubmission of the indictment as to the defendant Kuhnhausen was allowed and a new joint indictment was returned on 20 February. The procedure was certainly proper. It is a matter of record and judicial knowledge, and satisfactorily explains about 26 days of the delay. On 4 March the district attorney, by letter, requested that the case of State v. Williams and Kuhnhausen be set for trial. On 14 March the defendant Kuhnhausen moved for a separate trial. If she had not so moved, it is obvious that she would have been tried with her codefendant whose trial took place 20 days after the commencement of the second term of court, the one following the term at which she was indicted. It was her right to make such a motion, and the order directing separate trials was properly made, but that motion and order explains a material portion of the delay. On 31 March, which was the last day of the term in which the indictment was returned, the trial court entered a general order continuing to the next term of court all pending cases. The reason stated in the order was 'that the court did not have time to dispose of such cases during the first term'. A similar order on similar grounds was made by the court on 30 June, the last day of the second term. Thirty days after the commencement of the third term the defendant filed her motion to dismiss 'on the grounds that the same was not tried in the next term of Court from whence the cause was commenced, and that there has been a failure of prosecution.' A supporting affidavit recited, among other matters, the motion and order for separate trial and the ensuing trial of the codefendant Williams. It also states that 'this Court has judicially determined and disposed of approximate [six] thirty-three (33) other criminal cases involving felonies which have arisen since the indictment of the above defendant, and that many more other civil cases were likewise judicially disposed of by this Court.' In arguing the motion for dismissal, counsel for the defendant said:

'* * * I realize the Court has an extremely heavy docket, and also I feel that criminal cases, in particular default cases that are non-separable, should have a precedence in trial dates.

* * *

* * *

'I think the Court's order also shows, your Honor, that in the period from the time that the defendant was indicted until the present time this Court judicially determined thirty-three other criminal cases, not counting the terrific amount of civil work including trials. Now, in those thirty-three cases, naturally, there were not guilty trials in those thirty-three cases. However, the District Attorney did see fit to carry those cases through to a conclusion, whether there was a guilty plea or whatever it was, or an arraignment, although I might say, in those thirty-three cases there were arraignments and pleas and everything else together with the business the District Attorney's office saw fit to carry through to a successful conclusion, although they weren't carried over from one term to the next. There were thirty-three of those cases.'

Deputy County Clerk Santos testified that since the first of the year the court had been setting cases on an average of two or three months in advance of the trial dates. At the hearing on the motion the court stated for the record:

'* * * the record shows that immediately upon trial of the Williams case being completed, within approximately a week or ten days, thereafter the District Attorney requested the Court to set a trial date in the Kuhnhausen case. I have been set up about two or three months in advance since the first of the year which means that on request being made on the 9th of May that, as the average prevailed at that time and I have no independent recollection of it, that it would almost necessarily be carried into the next term of court unless I took cases off the docket that were already previously set.

* * *

* * *

'* * * My recollection is, Mr. Jacobs, that I didn't set cases on the first of June. I set them on the first of May, and I was set so far in advance that I waited until the first of July because, as I recall, I was set for close to three months in advance at that time.

'It is the opinion of the Court * * * that the conditions of the docket as having been brought out by the testimony of the Clerk, that it would have been necessary to continue this case until the present term of court before it could be tried. For that reason that I believe that, that among other things as shown here is sufficient cause. The motion will be denied. In any event, I think that the record indicates that the District Attorney most certainly made a timely effort to have the case set. Of course, the Court sets these cases in its own judgment, and I think the condition of the docket as shown here bears out the fact that it could not very well have been set prior to this month of Court without taking cases off the docket that were previously set some two months. * * *'

The motion to dismiss was denied. The case was called for trial on 18 August. The defendant, by her counsel, stated that she was ready for trial, and then repeated her motion to dismiss, which was denied without further evidence or argument. After examination of the jury the defendant renewed her motion to dismiss upon the same grounds as before. The...