State v. Martin

• Decision Date: 13 April 1909
• Citation: 100 P. 1106,54 Or. 403
• Parties: STATE v. MARTIN.
• Court: Oregon Supreme Court

100 P. 1106

54 Or. 403

STATE v. MARTIN.

Supreme Court of Oregon

April 13, 1909

Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge.

Edward H. Martin was convicted of crime, and appeals. Heard on motion to dismiss. Motion denied.

J.H. Page and A.M. Crawford, Atty. Gen., for the State.

MOORE, C.J.

This is a motion to dismiss an appeal. The errors relied upon in the brief of defendant's counsel, to secure the reversal of a judgment of conviction in a criminal action relate to the admission of evidence; but as the transcript contains no bill of exceptions, and none appears to have been settled or allowed by the trial court, the alleged errors are unavailing. State v. Kline, 50 Or. 426, 93 P. 237.

The defendant's counsel now requests permission to challenge the sufficiency of the indictment, which, it is asserted, appears from an examination of a copy of the judgment roll to be inadequate. The district attorney resists the application, contending that, where errors declared to have been committed in the trial of a cause are based upon evidence not contained in the bill of exceptions, the judgment ought to be affirmed, citing in support of that principle the cases of Fisher v. Kelly, 26 Or. 249 38 P. 67, and Miles v. Swanson, 47 Or. 213, 82 P 954, which were civil actions. In criminal causes the statute prescribes the several grounds of demurrer to an inictment (B. & C. Comp. § 1357), and provides that when the defects so enumerated appear on the face of the pleading they can be taken advantage of only by demurrer, "except that the objection to the jurisdiction of the court over the subject-matter of the indictment, or that the facts so stated do not constitute a crime, may be taken at the trial, under a plea of not guilty and in arrest of judgment." Section 1365. In construing such exception in State v. Mack, 20 Or. 234, 25 P. 639, and in commenting upon the sufficiency of an indictment, Mr. Chief Justice Strahan says: "But here the error is in the judgment roll, in the indictment itself, in that it fails to charge a crime. Such an error is not waived by silence or cured by judgment." A headnote to that case is as follows: "The objection that the facts stated in an indictment do not constitute a crime may be taken for the first time in the appellate court, and is not waived by failing to demur or move in arrest of judgment in the trial court." The language last quoted may seem...