State v. Moss

• Decision Date: 10 June 1919
• Parties: STATE v. MOSS.
• Court: Oregon Supreme Court

181 P. 347

92 Or. 449

STATE v. MOSS.

Supreme Court of Oregon

June 10, 1919

In banc.

Appeal from Circuit Court, Harney County; Dalton Biggs, Judge.

W. Z Moss was indicted for larceny, and appeals from an order denying his motions to dismiss. Affirmed.

On September 27, 1917, at a continuation of the April term of the circuit court for Harney county, the grand jury returned four indictments against the defendant, the first of which charged him with the larceny of a steer, the property of Pacific Live Stock Company; the second, with the larceny of a mule, the joint property of William Hanley Company and Eastern Oregon Live Stock Company; the third, with the larceny of one steer and four cows, the property of William Hanley Company; and the fourth, with the larceny of six cows belonging to Eastern Oregon Live Stock Company. To each indictment the defendant waived time, pleaded not guilty, and announced himself ready for trial for the larceny of the cattle; but, on account of the absence of material witnesses from the state, moved for and was granted a continuance on the indictment for the larceny of the mule. The state elected to try the defendant for the larceny of the steer belonging to Pacific Live Stock Company, and after trial, on October 6 1917, the jury returned a verdict of not guilty on that charge. By the following order of the court the remaining cases were continued for the term:

"It is ordered that the above-entitled cause and each thereof wherein W. Z. Moss is under indictment, be continued for the term; that the defendant be permitted to go on his recognizance, and his cash bail be remitted in all cases except that of indictment for larceny of one mule; that in the last-mentioned case a personal bond for $1,000.00 may be at any time substituted for the cash bond of $500.00."

At that time the terms of the circuit court were held on the first Monday in April and the first Monday in October. On October 7, 1918, the defendant, through his attorneys, W. Lair Thompson and P.J. Gallagher, filed a motion to dismiss the charges against him, "for the reason that the said indictments were not called for trial at the next term of the court following the filing of the said indictments, and that the said trial thereof was not postponed on the application of the said defendant." On the same day the court made an order setting the hearing of the motion for 1:30 p. m. At that time the defendant, through his attorneys, P.J Gallagher and George S. Sizemore, appeared, and the court then made the following order:

"Now at this time this matter coming on to be heard upon the motion of the defendant, filed this morning, asking that the indictments be dismissed, for the reason that the said indictments were not called for trial at the next term of the court following the filing of the said indictments, the said defendant appearing in person, as well as by P.J Gallagher and Geo. S. Sizemore, his attorneys, said defendant, at this time, asks leave to withdraw the said motion to dismiss, and, leave to withdraw being granted, the said defendant, through his said attorneys, stated in open court that he was ready for trial, and asked that the said cases be set for trial.

"Whereupon, at the application of the defendant and with his consent, the said cases, and each thereof, were set for trial Monday, October 14, 1918, at the hour of 10:00 o'clock in the forenoon."

On October 15, 1918, the defendant, through W. Lair Thompson, his attorney, filed another motion with the latter's supporting affidavit to dismiss, for the reason that--

"Said indictment was found on the 27th day of September, 1917; that the trial hereof was continued upon the condition that said indictment would be dismissed in April, 1918, and there was no further continuance of said cause, and the trial thereof was not postponed at the April, 1918, term of this court with the consent of or upon the application of this defendant, nor was any order passed by the above-entitled court continuing said cause at the April, 1918, term of this court, and this defendant was not brought to trial at the April, 1918, term of this court upon said indictment.

"This motion is based upon the records and files in this cause, and upon the affidavit of W. Lair Thompson filed herein to-day."

To this motion counter affidavits were filed by M. A. Biggs, district attorney, and W. A. Goodman, sheriff of Harney county.

It appears from the affidavit of Mr. Thompson that, after the trial and acquittal on the indictment for the larceny of the steer belonging to Pacific Live Stock Company, the district attorney sought an interview at the Hotel Levens at Burns, and the following conversation took place:

"The district attorney * * * said to affiant, 'What do you want to do with the other Moss indictments?' to which affiant replied, 'I want to either try them immediately or have them dismissed, and, of course, I would rather have them dismissed.' The said district attorney then said: 'I know when I am licked, and if you insist upon trying those cases now I will have to dismiss them, but that would subject me to criticism because of the large expense the people of Harney county have been put to in these matters, and I would like to protect myself; it would let me down easier if the cases were continued until next spring, and then dismissed, when people generally were not discussing (or had forgotten) the matter. If you will agree to a continuance for the term, I will dismiss all of the Moss cases (and certain other cases not here involved) when court convenes in April, except the mule case, which I want to try.' Thereupon affiant said: 'And in the meantime how about Moss' bonds? He has a large amount of cash bail on deposit; would you be willing to release this and let Moss go on his own recognizance?' To which the district attorney answered: 'Yes; I would be willing to release all bail money except in the mule case, and in that case I would be willing to recommend either $500.00 cash bail or a $1,000.00 personal bond."'

After further discussion, the conversation was as follows:

" 'Now, let us have no misunderstanding about this matter; this is a gentlemen's agreement made off the record to protect you. The Moss bail money is to be released, and he is to go on his own recognizance in all except the mule case, and in that case he may leave on deposit $500.00 cash bail, or substitute a $1,000.00 personal bond. When court convenes next April to make up the trial docket, you will move to dismiss all indictments, except in the mule case, without the necessity of my coming to Burns. I would not consent to a continuance if it would necessitate another expensive trip out here.' Thereupon said district attorney said: 'Yes, that is the understanding, and I will dismiss the cattle indictments next spring; you can tell the judge about it in the morning."'

The affidavit continues as follows:

"On Monday, October 8, 1917, before court convened, this affiant did relate to Hon. Dalton Biggs, judge of the above-entitled court, the substance of said agreement; and when court convened the district attorney and affiant in open court stated that an agreement had been reached to continue all of said indictments, and for the reduction of bail in certain cases which were involved in said agreement, but to which said defendant Moss was not a party, and for said defendant Moss to go on his own recognizance under all indictments except that involving the mule hereinabove mentioned, and for $500.00 cash bail or $1,000.00 personal bond in the mule case. Orders were so passed by this court, and defendant's cash bail under all of said cattle indictments was returned to him. This affiant would never have agreed to a continuance of the above-entitled case except upon condition that the same be dismissed in the spring of 1918, as agreed upon as hereinabove set forth, and did not agree to said continuance except upon said condition that the same be so dismissed."

In his counter affidavit the district attorney says:

"That on the first day of April term of the circuit court of Harney county, Oregon, for the year of 1918, the cases of the state of Oregon v. W. Z. Moss were called on the docket by the court, and the said Moss appearing in person and by his attorney, P.J. Gallagher, and at said time some remarks were made and some discussion had as to what disposition would be made of said indictments, and at said time the affiant herein, as the district attorney for Harney county, Oregon stated to the court, in the presence of the defendant and his attorney, P.J. Gallagher, that attorney L. R. Webster, of Portland, Oregon, was associated with the district attorney in both of said cases, and that the said affiant herein would not care to make any disposition of said cases until the said L. R. Webster should be in court. The affiant further stated at said time that he expected said L. R. Webster to be in attendance upon the court within a day or two. That during the first week of said term of court the said L. R. Webster arrived in the city of Burns, Oregon, from Portland, Oregon, and was for several days in attendance upon court; but that, before the arrival of the said L. R. Webster,...