State v. Long

• Decision Date: 06 November 1945
• Citation: 164 P.2d 452,177 Or. 530
• Parties: STATE <I>v.</I> LONG
• Court: Oregon Supreme Court

177 Or. 530

164 P.2d 452

STATEv.

LONG

Supreme Court of Oregon.

Submitted on motion to dismiss appeal November 6, 1945.

Appeal dismissed December 12, 1945.

Criminal law

1. Appeals are not permitted unless expressly authorized by statute.

Criminal law

2. Where trial court held as matter of law that identity of accused charged with being an habitual criminal had not been established and record showed no judgment or order of dismissal based upon directed verdict of jury, state's appeal from "certain order and verdict" and "the whole thereof" would be dismissed, there being no statute authorizing an appeal by the state in such a proceeding.

                  See 2 Am. Jur. 984
                  24 C.J.S., Criminal Law, § 1972
                

IN BANC.

Appeal from Circuit Court, Marion County.

GEORGE R. DUNCAN, Judge.

Cornelius Price Long was convicted of the crime of escaping from a state institution and was thereafter charged with being an habitual criminal. The trial court held as a matter of law that the identity of the defendant had not been established. Thereafter the State filed its notice of appeal from "certain order and verdict" and "the whole thereof" and the defendant moved to dismiss the appeal.

APPEAL DISMISSED.

Herbert Carter, of Salem, for the motion.

Miller B. Hayden, District Attorney, and Lawrence Osterman, Deputy District Attorney, both of Salem, opposed.

BELT, C.J.

On March 6, 1945, the defendant was convicted of the crime of Escaping from a State Institution and was sentenced to serve a term in the penitentiary. On May 5, 1945, the District Attorney for Marion County filed an information charging that the defendant was an habitual criminal in that he had previously been convicted in this State of four felonies. On trial in this separate and supplemental proceeding, the court directed the jury to answer, in response to special interrogatories submitted, that the defendant was not the same person named in the records of previous convictions offered in evidence. In other words, the court held as a matter of law that the identity of the defendant had not been established. The record of appeal fails to disclose any judgment or order of dismissal based upon the directed verdict of the jury.

The State of Oregon filed its notice of appeal from that "certain order and verdict", and "the whole thereof" — rendered in the above cause. The defendant has moved to dismiss the appeal.

1, 2. It is so well established in this jurisdiction, and elsewhere, that appeals are not...