State v. Miller
| Decision Date | 08 August 1958 |
| Parties | STATE of Oregon, Respondent, v. Leonard E. MILLER, Appellant. |
| Court | Oregon Supreme Court |
Leonard E. Miller, appellant, in pro. per.
John E. Walker, Dist. Atty., and Leeroy O. Ehlers, Deputy Dist. Atty., Pendleton, for respondent.
The defendant is now confined on a 25-year sentence imposed by a judgment entered on a plea of guilty to a district attorney's information charging the crime of kidnapping. This proceeding is an attempt by the defendant to have review of the judgment by a so-called motion in the nature of coram nobis. To this motion the state leveled a demurrer on the ground that the motion did not state facts sufficient to warrant the relief prayed for. To this the defendant filed a pleading designated 'Defendant's Answer to Demurrer.' Other motions were presented to the court which we need not consider. Briefs were submitted by both parties. After consideration the court entered an order sustaining the demurrer. No judgment dismissing the proceeding was entered.
Such an order is not appealable. Smith v. Rose, 125 Or. 56, 242 P. 842, 265 P. 800. The state has requested that we treat the order entered as though it were a judgment of dismissal and consider the appeal on its merits. If this were the only means of giving consideration to this appeal we would be obliged to deny this request. There is no reason why this type of case should be privileged to violate this long-established rule. However, in view of the disposition that follows it is unnecessary to refuse consideration for that reason.
In State v. Huffman, 207 Or. 372, at page 418, 297 P.2d 831, at page 851, this court, speaking by Mr. Justice Brand, indicated the procedure to be followed by the trial court in response to a motion similar to the defendant's here. The court acknowledged that the issue presented is completely new to this jurisdiction and, therefore, set forth certain 'ground rules' to guide the trial courts. By the procedural steps there delineated it is proper for the trial court to 'order' the prosecution to answer if the allegations in the motion are so sufficient and definite as to warrant consideration on the merits. In its disposition (207 Or. 420, 297 P.2d 852) of that case the court directed the trial court to 'assume jurisdiction thereof, determine the sufficiency of the allegations therein, and if found sufficient in law, to consider and decide the matter upon the merits.' (Italics ours.) It would appear, therefore, that a demurrer, in its usual function, is not a necessary or proper pleading to challenge the sufficiency of the allegations of...
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State v. Endsley
...v. Huffman, supra, two coram nobis cases have come to this court in which we passed on the merits: State v. Poierier, supra; State v. Miller, Or., 328 P.2d 869. State v. Sherwood, Or., 328 P.2d 774, (now pending on petition for rehearing) was an appeal from an order denying a motion to vaca......
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State v. Miller
...nobis. The trial court refused to assert jurisdiction, defendant appealed, and the circuit court's ruling was affirmed. State v. Miller, 214 Or. 208, 328 P.2d 869 (1958). Subsequently, defendant filed habeas corpus proceedings which were dismissed, and he again appealed to this court. The d......