State v. Laundy

Decision Date11 April 1922
Citation103 Or. 443,206 P. 290
CourtOregon Supreme Court

In Banc.

Appeal from Circuit Court, Multnomah County; Harry H. Belt, Judge.

On petition for rehearing. Rehearing denied.

For former opinion, see 204 P. 958.

George F. Vandeveer, of Seattle, Wash. (H. M Esterly, of Portland, on the brief), for appellant.

W. H Hallam, Deputy Dist. Atty., of Portland (Walter H. Evans Dist. Atty., and E. F. Bernard. Deputy Dist. Atty., both of Portland, on the brief), for the State.


The plaintiff has petitioned for a rehearing. The judgment was reversed upon the ground that the defendant was tried for two separate crimes upon an indictment charging only one crime. All of the members of the court who concurred in the original opinion still adhere to that opinion, while Mr. Justice Bean adheres to his dissent; and, consequently, nothing more need be said concerning any of the points discussed in the original opinion, for the views of a majority of the court were there expressed at length.

The petitioner discusses only one point not noticed in the original opinion, and hence attention will be given to that one point only. It is contended that the defendant did not except to the ruling of the court denying the motion to require the plaintiff to elect, and, in support of this contention, the plaintiff directs our attention to page 429 of the bill of exceptions, where we read as follows:

"Portland, Oregon, Tuesday, March 30 1920.
"9:30 o'clock A. M.
"Mr. Vandeveer: Your honor, I wish the record to show at this time we renew our motion to require the state to elect upon which charge they rely.
"The Court: The motion will be denied."

The recital just quoted was not overlooked when the original opinion was written. The printed brief filed in behalf of the plaintiff exhaustively and learnedly discusses many legal questions, and, indeed, the brief may be appropriately described as a legal treatise on some of the questions discussed. Although much space is given in the printed brief to most of the questions, including the question of duplicity, only a single paragraph is devoted to the contention now under investigation, and yet that single paragraph was amply sufficient to attract attention to the record. Upon examining the record we discovered that the quoted recital did not stand alone, but that upon the contrary the question had been previously presented to the trial court, and that upon each prior occasion an exception was saved to the ruling of the court denying the motion; and so, after having first examined the record, we were then of the opinion, just as we are now of the opinion, that the defendant had not waived his right on appeal to review the ruling of the trial court denying the motion to require the plaintiff to elect.

Before noticing the record, let us first consider the subject of exceptions. What is an exception? What is its office and function? Is it nothing more than an arbitrarily prescribed ceremonial amounting to a meaningless mummery; or is it, like most rules of procedure, a rule based, not upon purely arbitrary grounds, but upon substantial reasons, and hence designed to accomplish in a logical and understandable way a definite purpose? In the language of the Code, "an exception is an objection taken at the trial to a decision upon matter of law." Section 169, Or. L. An exception is a protest against a ruling of the court. It is notice to the court and opposing counsel that the objector does not acquiesce in the ruling. When, for example, in the course of a trial an objection is made to a question asked a witness, and the court rules on the objection, the objector may or he may not be satisfied with the ruling. If the objector is satisned with the ruling, the court and the opposing attorney are entitled to know it; and so, too, they are entitled to know it if the objector is not satisfied. If the objector is silent after the court announces its ruling, the presumption is that the objector, after hearing the ruling and the reasons for it, acknowledges the correctness of the ruling and acquiesces in it; and, consequently, in order to prevent the presumption of acquiescence, the objector must ordinarily express his nonacquiescence. Section 169, Or. L.; Hayes v. Clifford, 42 Or. 568, 72 P. 1; Fornof v. Wilkinsburg Borough, 238 Pa. 614, 86 A. 494; 3 C.J. 894; 8 Enc. Pl. & Pr. 157; 2 R. C. L. 92.

No particular form is required for expressing an exception, although the usual form is to say: "I except," or "I save an exception," or "exception," or the like. Since one of the reasons for an exception is to give notice that the objector does not acquiesce in the ruling, any language which gives notice that the objector protests against the ruling and does not acquiesce in it ought to be sufficient. Hayes v. Clifford, 42 Or. 568, 72 P. 1; 2 R. C. L. 94. In passing, it is not out of place to direct attention to cases where it has been held that the nonacquiescence of an objector may sufficiently appear, even though he does not in express terms say "I except;" as, for example, in Woolsey v. Lasher, 35 A.D. 108, 54 N.Y.S. 737, it was held that, although the appellant did not use the words "I except," he indicated his intention not to acquiesce in the ruling, but to review the same, and the right to review was not lost merely because the plaintiff failed to use the technical phrase "I except" to the ruling of the court. Another illustration is found in Newton v. City of Worcester, 169 Mass. 516, 48 N.E. 274, where it appeared that it was understood by the court and the parties that the defendant wished to have the construction of a particular statute determined by the Supreme Judicial Court in case the ruling of the presiding judge should be adverse to the contention of the defendant, and it was there held that an exception to the ruling should be allowed even though no statement was made in express terms that an exception was taken. Other precedents in point are the following: Snelling v. Yetter, 25 A.D. 590, 49 N.Y.S. 917; Deane v. City of Buffalo, 42 A.D. 205, 58 N.Y.S. 810.

In addition to serving as notice of nonacquiescence, an exception, in many jurisdictions, performs another function, although it is possible that this other function is not now so important in this jurisdiction as it was before the amendment of certain sections of the Code regulating appeals. Stated broadly, an appeal in an action at law, as well as an appeal in a criminal action, presents to the Supreme Court nothing but the judgment roll, or a part of it. Upon an appeal in a criminal action, just as upon an appeal in a civil action, the judgment or order appealed from can only be reviewed as to questions of law appearing upon the transcript. Sections 556 and 1625, Or. L. Originally the record submitted to the appellate court was a certified copy of the judgment roll, and hence the use of the word "transcript" in sections 556 and 1625 (see Turner v. Hendryx, 86 Or. 590, 600, 167 P. 1019, 169 P. 109; 1621 Or. L.), but latterly, by force of an amendment (chapter 335, L. 1913, codified as section 554--1), the original pleadings and the original bill of exceptions are required to be sent by the clerk of the trial court to the clerk of the Supreme Court, and, when delivered to the latter clerk, such original pleadings and original bill of exceptions "shall be a part of the transcript." Originally the bill of exceptions was presented in a short or skeleton form, except of course in cases where the appeal involved a ruling denying a motion for a directed verdict or denying a motion for a nonsuit, in either of which events a bill of exceptions usually included all of the testimony. However, latterly, by force of an amendment, "the bill of exceptions may consist of a transcript of the whole testimony and all of the proceedings had at the trial. * * *" Chapter 332, L. 1913, amending section 171, Or. L. Malloy v. Marshall-Wells Hardware Co., 90 Or. 303, 318, 173 P. 267, 175 P. 659, 176 P. 589. Stated in general terms, it may be said that upon an appeal from a judgment rendered either in a civil or criminal action the judgment roll is the record which is presented to the appellate court. The Code commands the clerk to prepare a judgment roll when a civil or criminal action terminates in a judgment. Among the documents to be included in a judgment roll is a bill of exceptions, if there be one. Sections 208 and 1582, Or. L. Most of the rulings made during the course of the trial of a civil or criminal action are such as cannot become a part of the judgment roll, unless they are incorporated in a bill of exceptions; and, consequently, the only means offered for presenting such rulings to the appellate court is a bill of exceptions. As previously stated, under the original practice which required a bill of exceptions to be in a short or skeleton form, the office of an exception was in one respect possibly more important than under the present practice, which permits a bill of exceptions in an unabridged form Under the original practice an exception was necessary to produce a bill of exceptions, and hence such a bill was literally what the name signifies, a bill of exceptions. Gregg v. Groesbeck, 11 Utah, 310, 40 P. 202, 32 L. R. A. 266; Goldberg v. Sisseton Loan & Title Co., 24 S.D. 49, 123 N.W. 266, es v. Broadway Roller Rink Co.,

136 Wis. 595, 118 N.W. 170, 19 L. R. A. (N. S.) 907; Territory v. Caffrey, 8 Okl. 193, 57 P. 204; Goodwin v. Bickford, 20 Okl. 91, 93 P. 548, 129 Am St. Rep. 729. Under the present practice an extension of all the shorthand notes, made by the court reporter and properly authenticated by the trial judge, may be filed as a bill of exceptions, and when so filed is presented as a part of the judgment...

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