State v. Nagel
| Decision Date | 08 February 1949 |
| Citation | 202 P.2d 640,185 Or. 486 |
| Parties | STATE <I>v.</I> NAGEL |
| Court | Oregon Supreme Court |
1. The purpose of statutes providing that judge shall not act as such, and that change of venue may be had in case in which judge is a party or is directly interested or is related to party, is to enable litigant through change of place of trial to secure a trial before a judge who is not disqualified. O.C.L.A §§ 1-404(2, 3), 13-603.
Criminal law — Change of venue — Judge — Related to party — Disqualified himself
2. The statutes providing that judge shall not act as such, and that change of venue may be had in case in which judge is a party or is directly interested or is related to party, do not entitle defendant accused of contributing to delinquency of minor daughter of circuit judge to change of venue, where judge has disqualified himself and another circuit judge is sitting in the case, notwithstanding that daughter may have been a party to the proceeding and that judge may have been interested by virtue of possible pecuniary liability as private prosecutor if prosecution was malicious or without probable cause. O.C.L.A., §§ 1-404(2, 3), 13-603(3), 26-1217, 26-1218, 93-245.
Judges — Regulation of order of business in court — Ministerial act — Judicial act
3. The phrase "regulation of order of business in court", within statute providing that prohibition against judge who is related to party from acting as such is inapplicable to "regulation of order of business in court", includes all ordinary ministerial acts performed by judge in administering business of court, a "ministerial act" being one that is done where law prescribes duty to be performed with such precision as to leave nothing to exercise of discretion or judgment in contrast to "judicial act", which involves exercise of discretion or judgment in determining whether duty exists. O.C.L.A. § 13-603.
See Words and Phrases, Permanent Edition, for other judicial constructions and definitions of "Judicial Act", "Ministerial Act" and "Regulation of Order of Business in Court".
Judges — Ministerial act — Judge's relationship to party
4. The action of circuit judge in receiving indictment charging defendant with contributing to delinquency of judge's minor daughter was "ministerial act" which under statute judge could perform, notwithstanding judge's relationship to party to case. O.C.L.A. § 13-603. Judges — Fixing bail — Judicial act
5. The circuit judge's order fixing bail of defendant accused of contributing to delinquency of judge's minor daughter was "judicial act" involving exercise of discretion and may have been void or voidable but had no bearing on fairness of trial by another circuit judge. O.C.L.A. § 13-603.
Judges — Excusing jurors — Discretion — Routine business of court
6. Circuit judge's orders excusing jurors involved exercise of discretion but were part of routine business of court, and were not made in prosecution against defendant charged with contributing to delinquency of circuit judge's minor daughter, and hence were not prejudicial to rights of defendant who was tried by another circuit judge. O.C.L.A. § 13-603.
Judges — Order that panel be filled — Regulation of order of business in court
7. Circuit judge's order that the panel be filled was "regulation of order of business in court", and was not made in prosecution against defendant charged with contributing to delinquency of judge's minor daughter, and hence was not prejudicial to rights of defendant. O.C.L.A. § 13-603, 14-110, 14-302, 14-304, 14-312.
8. A circuit judge could with judicial propriety testify as witness for prosecution in trial before another judge of defendant accused of contributing to delinquency of minor daughter of circuit judge. O.C.L.A. §§ 3-106, 93-245.
Criminal law — Change of venue
9. Common-law courts have inherent power, particularly in criminal case, to order change of venue for purpose of securing impartial trial.
Jury — Interrogation — State of mind
10. In prosecution against defendant accused of contributing to delinquency of minor daughter of circuit judge who testified for state in trial before another judge, whether particular jurors who had served in trials under circuit judge would be unduly influenced by such fact could be inquired into by defendant's counsel for purpose of determining whether jurors' state of mind disqualified jurors. O.C.L.A. § 5-206, subd. 2.
Jury — Challenge — Acceptance of jurors
11. The act of challenging jurors is not such an acceptance of jurors as waives any of defendant's rights in selection of jurors. O.C.L.A. § 26-919.
Jury — Challenge — Disqualification — Waived — Capital case
12. The right to challenge juror for disqualification is right which may be waived even in capital case. Criminal law — Judge — Witness — Change of venue
13. The fact that circuit judge testified as witness for prosecution in the trial before another judge of defendant accused of contributing to delinquency of minor daughter of circuit judge did not warrant changing place of trial to another county on ground that defendant could not obtain fair trial. O.C.L.A. §§ 1-404(2, 3); Const. Or. art. 1, § 11, U.S.C.A. Const. Amend. 14, § 1.
Criminal law — Supreme Court — Judicial knowledge — Judge — Judicial district — Court — Other judicial districts
14. The Supreme Court judicially knows that present circuit judge of thirteenth judicial district has held court in many other judicial districts.
Criminal law — Change of venue — Respect and confidence — Witness
15. The general respect and confidence reposed in a particular witness, whether on account of official position or for other reasons, is not ground for changing place of trial. O.C.L.A. § 1-404(2, 3).
Jury — Voir dire examination — Purpose — Challenge for cause — Purpose
16. The purpose of voir dire examination is to ascertain jurors who may be disqualified by virtue of knowing witness or knowing of witness, and purpose of statute allowing challenges for cause is to enable adverse party to remove such jurors from the jury box. O.C.L.A. § 26-919.
Criminal law — Witness — Interest — Credibility
17. The interest which witness has in case does not add to credibility of witness for value of his testimony, but may count against witness.
Criminal law — Motions — Change of venue
18. Motions for change of venue are addressed to discretion of trial court. O.C.L.A. § 1-404(2, 3).
Criminal law — Confession — Voluntary — Burden of proof
19. A purported confession is inadmissible unless voluntarily made, and state has burden of proving that confession was voluntary. O.C.L.A. § 26-937.
Criminal law — Findings — Admissibility of confession — Abuse or error
20. The court's findings on preliminary issue of admissibility of confession where evidence is conflicting will not be disturbed on appeal unless record discloses manifest error or abuse of judicial discretion. O.C.L.A. § 26-937.
Criminal law — Incriminatory statements — Confession — Fear
21. Defendant's incriminatory statements and formal confession made to district attorney after first confession which may have been induced by fear of prosecuting witness, where not inadmissible as being involuntary because of such fear, where prosecuting witness' conduct toward defendant had nothing to do with obtaining confession from defendant but was provoked by defendant's overtures to prosecuting witness for financial settlement. O.C.L.A. § 26-937.
Infants — Conviction — Contributing to delinquency of minor
22. Evidence warranted conviction for contributing to delinquency of minor.
See 22 C.J.S., Criminal Law, § 195
124 A.L.R., 1080
30 Am. Jur., 802
Appeal from Circuit Court, Klamath County.
George Mowry, of Portland, argued the cause for Appellant. With him on the brief was John Mowry, of Portland.
Clarence A. Humble, District Attorney, of Klamath Falls, argued the cause for respondent. With him on the brief was J. Hawkins Napier, Deputy District Attorney, of Klamath Falls.
Before ROSSMAN*, Chief Justice, and LUSK, BELT, KELLY, BAILEY and HAY, Justices.
On May 20, 1947, the grand jury of Klamath County returned an indictment charging the defendant William Henry Nagel with the crime of contributing to the delinquency of a minor. The charging part of the indictment is as follows:
"The said WILLIAM HENRY NAGEL on the 11th day of May A.D. 1947 in the said County of Klamath and State of Oregon, then and there being, and Cecile Vandenberg then and there being an unmarried female child under the age of 18 years, the said William Henry Nagel did then and there unlawfully, and wilfully and feloniously do an act, to-wit: expose and manipulate his private parts in the presence and open view of said Cecile Vandenberg, which said act did manifestly then and there tend to cause said Cecile Vandenberg to become a delinquent child; contrary to the statutes * * *"
Cecile Vandenberg is the daughter of the Hon. David R. Vandenberg, then and now circuit judge of the Thirteenth Judicial District, Klamath County, Oregon. At the time of the commission of the alleged offense, May 11, 1947, Cecile was ten years of age. Upon the indictment being reported to him on May 20, 1947, Judge Vandenberg endorsed upon it an order fixing the defendant's bail at $2,500.00. On the same day he disqualified himself to act as judge in the case and requested the chief justice of this court to assign another circuit judge to act in his place, and the chief justice, on May 21, 1947, designated the Hon. Orval J. Millard, circuit judge for the First Judicial District, to hear the case. Thereafter, all the proceedings in the case were before Judge Millard.
The defendant entered a plea of not guilty on July 12, 1947. His trial commenced on September 17, 1947, at the...
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Espinoza v. Evergreen Helicopters, Inc.
...authority to change the place where a case will be tried even when the venue statutes do not expressly provide for it. In State v. Nagel, 185 Or. 486, 202 P.2d 640, cert. den., 338 U.S. 818, 70 S.Ct. 60, 94 L.Ed. 495 (1949), the defendant appealed his criminal conviction, assigning error to......
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State v. Shipley
...use of his confession offends due process.' Voluntariness is the test which has been consistently applied in this state. State v. Nagel, 185 Or. 486, 518, 202 P.2d 640, cert. denied 338 U.S. 818, 70 S.Ct. 60, 94 L.Ed. 495 (1949); State v. Jordan, 146 Or. 504, 510, 26 P.2d 558, 30 P.2d 751 (......
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State v. Nunn
...E. g., State v. Linn, 179 Or. 499, 507, 173 P.2d 305; State v. Henderson, 182 Or. 147, 172, 184 P.2d 392, 186 P.2d 519; State v. Nagel, 185 Or. 486, 518, 202 P.2d 640, certiorari denied 338 U.S. 818, 70 S.Ct. 60, 94 L.Ed. A confession is not inadmissible merely because the defendant is in c......
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Campbell v. Board of Medical Examiners
...and now being fully apprised in the premises, does hereby enter the following * * *.' A similar issue was presented in State v. Nagel, 185 Or. 486, 202 P.2d 640 (1949), and Creel v. Shadley, 97 Or.Adv.Sh. 1517, 513 P.2d 755 (1973). In Nagel, the presiding judge disqualified himself from a c......