State v. Roden
Decision Date | 13 May 1959 |
Citation | 216 Or. 369,339 P.2d 438 |
Parties | STATE of Oregon, Respondent, v. Patrick L. RODEN, Appellant. |
Court | Oregon Supreme Court |
Wm. D. Miller, Salem, argued the cause and filed a brief for appellant.
Thomas W. Hansen, Deputy Dist. Atty. for Marion County, Salem, argued the cause and filed a brief for respondent.
Before McALLISTER, C. J., and ROSSMAN, O'CONNELL and CRAWFORD, Justices.
The defendant, Patrick L. Roden, was accused in the circuit court for Marion county of the crime of unlawfully obtaining public assistance (ORS 411.630) and entered a plea of not guilty. The jury returned a unanimous verdict of guilty and defendant was sentenced to imprisonment in the penitentiary for a term not exceeding three years, from which judgment he appeals.
The only error assigned by defendant is the denial of his motion for a mistrial based on the alleged misconduct of a juror.
The trial commenced on March 24, 1958 and the case was submitted to the jury before noon on the following day. It appears from the bill of exceptions that at 1:30 p. m. on March 25th, while the jury was still deliberating, counsel for defendant moved for a mistrial in chambers, as follows:
'Mr. Miller: I will file a written motion, supported by my affidavit, if the jury comes in with a guilty verdict.
'The Court: Very well.'
We could well dispose of this case on the ground that the motion for a mistrial was not made promptly. It appears that the juror and a witness carried on some conversation as they left the courthouse after court adjourned for the day on March 24, 1958. This conduct was observed by defendant and his counsel. Defendant did not call the matter to the attention of the court the following morning, but without objection allowed the trial to proceed and the issue of his guilt or innocence to be submitted to the jury. It is well settled that a party who learns of the misconduct of a juror during the trial may not keep silent and take advantage of it in the event of an adverse verdict. See Tucker v. Salem Flouring Mills Co., 13 Or. 28, 34, 7 P. 53; Osmun v. Winters, 30 Or. 177, 190, 46 P. 580; Hooton v. Jarman Chevrolet Co., 135 Or. 269, 278, 293 P. 604, 296 P. 36; and Mitchell v. Bruening, 139 Or. 244, 254, 9 P.2d 811.
After the jury brought in a verdict of guilty, the defendant filed a written motion for a mistrial supported by the affidavit of his counsel. This motion and affidavit were not made a part of the bill of exceptions and are not properly before us. See Tellkamp v. McIlvaine, 184 Or. 474, 199 P.2d 246 and Edvalson v. Swick, 190 Or. 473, 227 P.2d 183.
Assuming in favorem libertatis that the question is properly before us, we are satisfied that the trial court did not err in denying the motion for a mistrial. The record indicates that the juror and witness came together without design and that the conversation took place as they walked out of the courthouse to the street corner where they separated and went their respective ways. After the...
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State v. Williams
...If such objection is not raised when the defendant or his counsel first become aware of the publicity, it is waived. See State v. Roden, 216 Or. 369, 339 P.2d 438 (1959); State v. Hulet, 159 Wash. 72, 292 P. 107 (1930). Similarly, we do not think that a defendant should be permitted to refu......
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Reese v. State
...1266 (Mo.1963); State v. McFerran, 80 N.M. 622, 459 P.2d 148 (1969); Hayes v. State, 397 P.2d 524 (Okl.Crim.App. 1964); State v. Roden, 216 Or. 369, 339 P.2d 438 (1959); Annot., 9 A.L.R.3d 1275 Appellant's conviction must must be affirmed. No reversible error has been demonstrated with rega......
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Johnson v. Kolovos
...the nature of it, the physical conditions in the courthouse, and the effect of the conversation upon the case. See State v. Roden, 216 Or. 369, 339 P.2d 438, and the cases cited therein. The judgment of the trial court is ...
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State v. Goodale
...the attorney, had talked to Mr. Ideker on this matter. Officer Ideker testified on behalf of the state in the action. In State v. Roden, 1959, 216 Ore. 369, 339 P.2d 438, where a motion for a mistrial was made 'on the ground that one of the chief witnesses for the State, Mrs. Fowler, was co......