State v. O'Malley
| Jurisdiction | Oregon |
| Parties | STATE of Oregon, Respondent, v. Gerald O'MALLEY, Appellant. |
| Citation | 469 P.2d 36,255 Or. 544 |
| Court | Oregon Supreme Court |
| Decision Date | 14 May 1970 |
Gary D. Babcock, Public Defender, Salem, argued the cause and filed briefs for appellant.
F. LaGard Smith, Deputy Dist. Atty., Vale, argued the cause for respondent. With him on the brief was H. Clifford Looney, Dist. Atty.
Before McALLISTER, P.J., and SLOAN, O'CONNELL, DENECKE, HOLMAN, TONGUE and HOWELL, JJ.
This is our second consideration of the predicament of Gerald O'Malley, who was served with two subpoenas requiring his attendance as a witness on the same day, at substantially the same time, in cities 90 miles apart. He obeyed the subpoena which was served first, and was found in contempt by the Circuit Court of Malheur County, from which the second subpoena had issued. He appealed that judgment to this court, and we reversed and remanded in State v. O'Malley, 248 Or. 601, 435 P.2d 812 (1968). The court was divided on that occasion, the majority holding that a judgment of contempt was proper if the trial court found that O'Malley's failure to appear in Malheur County was willful. The trial court had not made a finding on this question, and for this reason the case was remanded. Three members of the court dissented from the holding that O'Malley's failure to appear could constitute contempt.
The trial court held a new hearing and took additional evidence on the question of willfulness, but no material change in the basic facts as set forth in our original decision appeared. The trial judge found that O'Malley's failure to appear was willful and again entered a judgment of contempt. O'Malley appealed again, this time to the Court of Appeals, which had been created in the meantime. That court affirmed, declaring itself bound by our decision although apparently not convinced that it was correct. State v. O'Malley, Or.App., 89...
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