State v. Reinhart

• Citation: 26 Or. 466,38 P. 822
• Parties: STATE v. REINHART.
• Decision Date: 14 January 1895
• Court: Supreme Court of Oregon

38 P. 822

26 Or. 466

STATE v. REINHART.

Supreme Court of Oregon

January 14, 1895

Appeal from circuit court, Multnomah county; M.G. Munly, Judge.

Herman Reinhart was convicted of larceny by embezzlement, and appeals. Affirmed.

M.L. Pipes and Alex. Bernstein, for appellant.

W.T Hume, Dist. Atty., and H.E. McGinn, for the State.

BEAN C.J.

The defendant was tried, convicted, and by the judgment of the court sentenced to the penitentiary for the crime of larceny by embezzlement, from which judgment he brings this appeal. The indictment on which he was convicted was returned by the grand jury on December 23, 1893, and charges that on the 7th day of the preceding September, while the defendant was cashier and bookkeeper for the firm of Dittenhoefer, Haas & Co., he feloniously embezzled and fraudulently converted to his own use, of the moneys of said firm which came into his possession and under his care by virtue of his employment, the sum of $9,000. Prior to the finding of this indictment, the grand jury had returned into court three other indictments against defendant charging him with the crime of larceny by embezzlement from the same parties and under the same employment. The first of these indictments was returned on September 30, 1893, and charged the crime to have been committed by the embezzlement of $1,500 between the 1st day of April and the 12th day of August of that year. On October 12th the court dismissed this indictment,--on motion of the district attorney,--without assigning any reason therefor, that the record discloses; the entry in the journal being that it was done "upon good and sufficient reason shown the court." The second indictment was returned on October 9, 1893, and charged the crime to have been committed by the embezzlement of $8,867.68 between the 17th day of October, 1877, and the 12th day of August, 1893. To this indictment the defendant demurred, on the ground among other things, that it charged more than one crime, and also that it did not state facts sufficient to constitute a crime; and, his demurrer being overruled, he entered a plea of not guilty. Thereafter, and while the indictment was pending and undisposed of, the grand jury returned the indictment upon which defendant was finally tried and convicted. The third indictment was also returned on the said 9th day of October, 1893, and charged the crime to have been committed by the embezzlement of $4,753.06 between the 15th day of February, 1892, and the 12th day of August, 1893. To this indictment the defendant entered a plea of not guilty, and the cause was tried and submitted to a jury, who failed to agree, after being together eight hours; and the court, deeming that a sufficient time for deliberation, and being about to adjourn, had the jury brought into court by the officer having them in charge, and it satisfactorily appearing to the court that there was no probability of an agreement, and such finding being entered in the journal, they were discharged from further consideration of the case, the defendant and his counsel being present, and making no objection thereto. Afterwards the indictment on which the judgment is based from which this appeal is taken was returned by the grand jury, whereupon the court, on motion of the district attorney, dismissed the two former indictments then pending against the defendant, and discharged him from custody thereunder; the reason for dismissing them, as entered in the journal, being that they were partly for the same offense charged in the indictment last returned, and that justice required that the defendant should not be held upon and put to the trouble and expense of preparing for trial on all the indictments. The defendant, being called upon to plead to the indictment still pending against him, filed a demurrer, which being overruled, he offered to file what counsel calls a "written plea of former jeopardy." In this alleged plea he sets forth, with much particularity, copies of the former indictments against him, the order of the court dismissing the same, and a detailed history of the trial which resulted in a disagreement and discharge of the jury, and alleges that such jury did not have a reasonable time in which to deliberate upon their verdict before being discharged by the court. This plea the court refused to receive or consider, and defendant thereupon entered a plea of not guilty and former acquittal, and upon these issues the cause was tried, and defendant convicted. Almost every step of the prosecution, from the finding of the indictment to the judgment, seems to have been met with objections and exceptions; but we shall only notice those that were pressed by counsel for defendant at the hearing, and such as we deem of sufficient importance to require particular mention.

It is contended, in the first place, that the judgment should be reversed because it does not appear from the transcript that the indictment upon which the defendant was tried and convicted was found and returned by the grand jury in the manner provided in chapter 7 of the Criminal Code. This chapter provides that an indictment, when found by the grand jury, must be presented by the foreman in their presence, filed with the clerk, and remain in his office as a public record. But it is also provided that an objection on account of a failure to comply with this chapter must be taken advantage of by motion to set aside the indictment, and, if not so made, the defendant is precluded from afterwards taking the objection. Hill's Code, § 1315. No such motion was made in this case, and hence the objection was waived. And, besides, the statute governing appeals in criminal cases provides what the transcript shall contain (sections 1444, 1413); and the record of the finding of an indictment is not made a part thereof. Hence the question here suggested is not properly before us, and, in the absence of an affirmative showing to the contrary, we will assume that all proceedings in a criminal case preliminary to the matters required to be shown by the transcript were regularly had and taken.

It is contended that the dismissal by the court of the first three indictments against the defendant is a bar to this prosecution, because, as defendant claims, the orders of dismissal do not set forth any legal reason therefor, and do not show that the indictments were dismissed in furtherance of justice. The statute provides that a criminal action, after indictment, can only be dismissed by the court either on its own motion or on the application of the district attorney, and in furtherance of justice, and that the reason of the dismissal must be set forth in the journal; but such a dismissal is not a bar to another prosecution for the same offense, if the crime charged be a felony. Hill's Ann.Laws, §§ 1527-1529. From these provisions of the statute, it is apparent that an order dismissing an indictment for felony does not bar another prosecution for the same offense, when made in the manner and for the reason provided by the statute, and certainly no greater force or effect can be successfully claimed for a dismissal not authorized by law. By all the authorities, the mere commencement of a criminal proceeding does not put the defendant in jeopardy while there is no jury to decide the question of guilt, and therefore the dismissal or discontinuance of such a proceeding before jeopardy attaches cannot be pleaded in bar of another prosecution for the same offense, unless by the provisions of some statute to that effect. Bish.Cr.Law (5th Ed.) § 1014; Whart. Cr.Pl. § 517. Nor, in our opinion, does any different rule obtain, although the indictment may be dismissed after the overruling of a demurrer, or after a mistrial because of the inability of the jury to agree upon a verdict. If, therefore, it be conceded that the indictments were improperly dismissed,--a question we pass without deciding,--such dismissals did not, in our opinion, bar a further prosecution for the same offense on a new indictment.

It is also claimed that the power of the grand jury is at an end when it returns an indictment into court, and that it cannot afterwards return another indictment against the same defendant for the same offense, unless, by order of the court, the case is resubmitted to them. But we can find no warrant in law for this contention. By their oaths, grand jurors are bound to true presentment or indictment make of all crimes committed or triable within their county that shall come to their knowledge (Hill's Code, § 1236); and in discharge of this obligation they not only have the right, but it is their duty, to return a new indictment against a defendant, if, in their opinion, the former indictment, which is still pending and undisposed of, is defective or insufficient, unless some proceeding has been had on such indictment which amounts to a bar to further prosecution. This is said to be the better and more usual practice ( Perkins v. State, 66 Ala. 457; Stuart v. Com., 28 Grat. 950); and the power of the grand jury in this respect is not dependent upon the order of the court resubmitting the cause to them. State v. Collis, 73 Iowa, 542, 35 N.W. 625.

It is next contended that the discharge of the jury impaneled on the trial of the third indictment is a bar to this prosecution, because, under the facts as stated in the plea of the defendant, it is claimed they did not deliberate upon their verdict a reasonable or sufficient length of time before they were discharged by the court. It must be conceded that in this state the inability of a jury in a criminal action to agree upon a verdict after mature deliberation is a sufficient reason for their discharge by the court, and that such a discharge is not a bar to a further prosecution for the...