State v. Moltzner
| Decision Date | 12 July 1932 |
| Parties | STATE v. MOLTZNER. |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Multnomah County; W. A. Ekwall, Judge.
Criminal prosecution against Jay S. Moltzner upon four indictments each charging defendant with having committed the crime of unlawfully lending funds of a building and loan association without security. From an order denying a motion to dismiss the four indictments, defendant appeals.
Order affirmed as to the first indictment. The Supreme Court refused to assume jurisdiction as to the other indictments.
John Kaste and Hy Samuels, both of Portland (C. W Robison and James L. Conley, both of Portland, on the brief) for appellant.
Barnett H. Goldstein, of Portland (Lotus L. Langley, Dist. Atty., and Ben H. Conn, Deputy Dist. Atty., both of Portland, on the brief), for the State.
On the 24th day of November, 1931, the defendant, J. S. Moltzner, filed a motion for an order dismissing four indictments, Nos. C-16677, C-16678, C-16680, and C-16679, each charging defendants with having committed the crime of unlawfully loaning the funds of a building and loan association without security, "on the ground and for the reason that the said indictments have not been tried within the next term of court as by law provided."
On the 30th day of November, A. D. 1931, an entry as follows was made by the circuit court of Multnomah county, Or.:
On the 21st day of December, 1931, said defendant filed another motion to dismiss said four indictments.
On said 21st day of December, 1931, an entry was made by said circuit court as follows:
Neither the defendant nor the state moved to have these four criminal cases consolidated. No order of consolidation was made. It is unnecessary, therefore, to determine whether a consolidation thereof would have been proper. In State v. Gilbert, 55 Or. 596, 112 P. 436, it is said: etc.
The authorities are not harmonious upon the question of whether, in the absence of statutory authority, two or more criminal cases may be consolidated. Davis v. State, 118 Ark. 31, 175 S.W. 1168; Commonwealth v. Valotta, 279 Pa. 84, 123 A. 681; United States ex rel. Valotta v. Ashe (D. C.) 2 F. (2d) 735; Ashe v. United States ex rel. Valotta, 270 U.S. 424, 46 S.Ct. 333, 70 L.Ed. 662; Lucas v. State, 144 Ala. 63, 39 So. 821, 3 L. R. A. (N. S.) 412, and case note.
In civil cases, where the right to consolidate is unquestioned, in the absence of actual consolidation, the general rule is that, in order to appeal four cases, there must be four notices of appeal. Mobile Improvement & Building Co. v. Stein, 158 Ala. 113, 48 So. 368, 17 Ann. Cas. 288, and note; 3 C.J. Appeal and Error, p. 355, § 109. In the case at bar, there is but one notice of appeal which is as follows:
An examination of the four transcripts on file herein discloses that the motions of defendant for an immediate trial, the motions for dismissal, and the orders denying said motions are in but one of such transcripts. The orders from which this appeal is taken, and more particularly "that certain order dated the 21st day of December, 1931, by the terms of which order the motion heretofore made by this defendant, Jay S. Moltzner, to dismiss the indictments in the within entitled criminal actions, was denied," were made only in case No. C-16677. These orders appear nowhere in the transcripts of cases numbered C-16678, C-16679, or C-16680.
Waiving, without approving, the irregularity of attempting to combine four separate cases in one appeal, without any order of consolidation having been made, we assume jurisdiction on this appeal of case No. 16677; and, in so far as this appeal is concerned, we decline to assume jurisdiction of the cases numbered C-16678, C-16679, and C-16680, or either of them.
Section 13-1602, Oregon Code 1930, provides: "If a defendant indicted for a crime, whose trial has not been postponed upon his application or by his consent, be not brought to trial at the next term of the court in which the indictment is triable, after it is found, the court must order the indictment to be dismissed, unless good cause to the contrary be shown."
The indictment in the case at bar was returned on the 13th day of August, 1931. In Multnomah county there are ten terms of the circuit court annually, beginning on the first Monday of the months of January, February, March, April, May, June, September, October, November, and December, respectively. Section 28-904, Oregon Code 1930. The appealing defendant was arraigned on the 29th day of August, 1931, and it was ordered that the cause be continued until September 1, 1931, at which time defendants should further move or plead therein. On September 14, 1931, the cause was continued until September 18, 1931, at which time said defendants should further move or plead therein.
On September 21, 1931, defendants entered pleas of not guilty, and the case was continued for trial to a later date yet to be determined by the court.
On November 17, 1931, defendant, Moltzner, filed a motion for an order of immediate trial.
On November 20, 1931, the affidavit of Mr. Ben H. Conn, deputy district attorney, was filed, setting forth that it was material and necessary in preparing for the trial of said defendant upon said indictment to secure a complete audit of the books, records, and accounts of the Guardian Building & Loan Association; that such audit, as affiant was informed, would be completed within the following two or three weeks; that, at the time of the arraignment and plea of defendant, Moltzner, he stated that his attorney was Frank J Lonergan, and that thereafter affiant was requested by Mr. Lonergan, through his associate, Mr. Crounse, to permit him in the preparation for his defense to likewise make an audit of said books and records, and that affiant agreed to do so upon the completion of the audit being made at the request of the state; that on November 16, 1931, for the first time affiant was advised that defendant, Moltzner, had changed his attorneys, and that ...
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State v. Kuhnhausen
... ... Both he and this court undoubtedly knew the contrary to be true. State v. Lee, supra, has been cited with approval in Johnston v. Circuit Court for Mutnomah County, supra, and State v. Swain, supra. It [201 Or. 527] was also cited with approval in State v. Moltzner, 140 Or. 128, 13 P.2d 347; State v. Weitzel, 153 Or. 524, 56 P.2d 1111; and State v. German, 163 Or. 642, 98 P.2d 6. In the last three cases the opinions of this court cited State v. Lee, supra, in support of the general proposition that lack of time is in itself good cause for not dismissing the ... ...
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State v. Kuhnhausen
...is a will settled rule that an order appearing in the journal of the court is taken by this court as an absolute verity. State v. Moltzner, 140 Or. 128, 13 P.2d 347; * * *.' (Italics In State v. Moltzner, supra, 140 Or. at page 136, 13 P.2d at page 350, the court, speaking through Mr. Justi......
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State v. Swain
... ... the next term. These orders sufficed to supply the "good ... cause" required by this section of our laws to prevent ... dismissal of the prosecution, and are not subject to ... collateral attack. State v. Moltzner, 140 Or. 128, ... 13 P.2d 347. We find no merit in this contention ... The ... third proposition submits that section 13-1602, Oregon Code ... 1930, was violated when the defendant was not tried at the ... term of court immediately following the one in which ... ...
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State v. German
...is a well-settled rule that an order appearing in the journal of the court is taken by this court as an absolute verity. State v. Moltzner, 140 Or. 128, 13 P. (2d) 347; State v. Gilbert, 55 Or. 596, 112 P. 436; Ex Parte Jerman, 57 Or. 387, 112 P. 416, Ann. Cas. 1913A, 149; Ollschlager's Est......