State v. McReynolds

Decision Date31 December 1957
Citation212 Or. 325,319 P.2d 905
PartiesSTATE OF OREGON <I>v.</I> McREYNOLDS
CourtOregon Supreme Court

Defendant was convicted of crime of sodomy. The Circuit Court, Lincoln County, Fred McHenry, J., entered judgment of conviction and defendant appealed. The Supreme Court held that statute permitting judge to continue grand jury in session during as many terms of court as judge deems advisable did not go beyond and enlarge scope of constitutional provision that legislative assembly shall provide that the most competent and permanent citizens of county shall be chosen for jurors; and out of whole number in attendance at the court, seven shall be chosen by lot as grand jurors, five of whom must concur to find an indictment and therefore indictment returned by grand jury, which had been held over from term of court in which it was constituted, was not invalid.

Affirmed.

Grand jury — Term — Nunc pro tunc order

1. Where court on August 31 signed order reciting that May term grand jury had matters under consideration which could not be completed by end of May term and continuing grand jury during September term, and on following February 25 entered nunc pro tunc order as of January 28 continuing the same grand jury into the February term, the nunc pro tunc order was valid, the court had not abused its discretion, and grand jury which returned indictment on February 27 was legally constituted. ORS 132.020, 132.120; Const. Amended art. 7, § 5; Original art. 7, § 18.

Grand jury — Statute — Continue in session — Terms

2. Statute permitting judge to continue grand jury in session during as many terms of court as judge deems advisable did not go beyond and enlarge scope of constitutional provision that legislative assembly shall provide that the most competent and permanent citizens of county shall be chosen for jurors, and out of whole number in attendance at court, seven shall be chosen by lot as grand jurors, five of whom must concur to find an indictment. Const. Amended art. 7, § 5; Original art. 7, § 18; ORS 132.020, 132.120.

Indictment and information — Held over — Term of court

3. Indictment returned by grand jury, which had been held over from term of court in which it was constituted, was not invalid. Const. Amended art. 7, § 5; Original art. 7, § 18; ORS 132.020, 132.120.

                  See term of grand jury
                  24 Am Jur, Grand Jury § 6
                  42 CJS, Indictments and Informations § 24
                

IN BANC

Appeal from Circuit Court, Lincoln County.

FRED McHENRY, Judge.

Clifford B. Olsen, of Portland, argued the cause for appellant. With him on the brief were Anderson, Franklin & O'Brien, and James K. Navarra, of Portland.

A.R. McMullen, District Attorney for Lincoln County, argued the cause for respondent. With him on the brief was R.P. Everhart, Deputy District Attorney for Lincoln County.

AFFIRMED.

PER CURIAM.

The indictment charges that on 20 August 1956 the defendant committed the crime of sodomy. The indictment was filed on 27 February 1957. At the time of arraignment on 4 March 1957 the defendant moved to quash the indictment "for the reason that the defendant was not indicted by a grand jury legally constituted." The motion was denied. The cause was tried, resulting in verdict and judgment of conviction. Defendant appeals, assigning as error the denial of the motion to quash.

1. The facts on which defendant relies in support of this, his single assignment of error, are stated as follows: In Lincoln County there are in each year three terms of court, commencing on the first Monday in February, the first Monday in May, and the second Monday in September. On motion of the district attorney the court on 31 August 1956 signed an order continuing the grand jury which had been impaneled and sworn during the May term, and directing that said grand jury be held over to serve during the September 1956 term. The reason for such continuance was stated in the motion and order as follows: "That the said grand jury has matters now under consideration which cannot be completed by the end of the May 1956 term of court." On 25 February 1957 an order was entered nunc pro tunc as of 28 January 1957 continuing the same grand jury into the February 1957 term. It was recited that the order had been made orally in open court on 28 January 1957. A similar reason was given for the holding over. Again on 29 April 1957 pursuant to motion the court ordered that the same grand jury be continued over to sit during the May 1957 term "until the matters under investigation and now pending before said grand jury are disposed of." Since the indictment was returned on 27 February 1957 and during the February term, we are not concerned in this case with the order made subsequent to that date.

The nunc pro tunc order was clearly valid. State of Oregon v. Doud, 190 Or 218, 225 P2d 400.

Amended Article VII, § 5 of the Oregon Constitution provides in part, as follows:

"In civil cases three-fourths of the jury may render a verdict. The legislative assembly shall so provide that the most competent of the permanent citizens of the county shall be chosen for jurors; and out of the whole number in attendance at the court, seven shall be chosen by lot as grand jurors, five of whom must concur to find an indictment. But provision may be made by law for drawing and summoning the grand jurors from the regular jury list at any time, separate from the panel of petit jurors, and for the...

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4 cases
  • State v. Gortmaker
    • United States
    • Oregon Court of Appeals
    • February 9, 1983
    ...provision and thereby implicitly construed the predecessor to ORS 135.510 as not barring a motion to quash. Accord State v. McReynolds, 212 Or. 325, 319 P.2d 904 (1957) (also reached merits of Article VII (Amended), Section 5(2) challenge to indictment with no mention of ORS 135.510); State......
  • Kortz v. State
    • United States
    • Wyoming Supreme Court
    • December 4, 1987
    ...the same investigation ab initio would disrupt the judicial process [and] contribute to the law's delays * * *." State v. McReynolds, 212 Ore. 325, 319 P.2d 904, 906 (1957). URBIGKIT, J., filed a dissenting opinion. URBIGKIT, Justice, dissenting. I dissent. This case, the tail-ender of the ......
  • State v. Gortmaker
    • United States
    • Oregon Supreme Court
    • September 20, 1983
    ...for the possible purpose could be served by such a procedure and offers no authority in support of his position. In State v. McReynolds, 212 Or. 325, 328, 319 P.2d 904 (1957), we " * * * Causal reference to Oregon Constitution, amended Article VII, § 5, will disclose that there is no longer......
  • State v. Fenter
    • United States
    • Washington Supreme Court
    • September 15, 1977
    ...extensions, and the grand jury was a legal body at the time it issued the indictment against defendant. See, e. g., State v. McReynolds, 212 Or. 325, 319 P.2d 904 (1957). One final matter must be addressed concerning the extensions granted to the Snohomish County grand jury. Defendant argue......

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