State v. Rosser
| Decision Date | 07 March 1939 |
| Parties | STATE v. ROSSER et al. |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Polk County; Arlie G. Walker, Judge.
On rehearing.
Former order dismissing appeal set aside, and appeal reinstated.
For prior opinion, see 86 P.2d 441.
George F. Vanderveer, of Seattle, Wash., and Charles W. Robison, Leland B. Shaw, George Mowry, and John Mowry, all of Portland, for appellant.
Bruce Spaulding, Dist. Atty., of Dallas, Ralph Moody, of Salem, and Oscar Hayter, of Dallas, for the State.
This court on January 17, 1939, by written opinion, 86 P.2d 441 held that the first appeal attempted to be taken by the defendant, Albert Earl Rosser, by serving and filing notice of appeal on August 23, 1938, had been abandoned by failure of the appellant to file in this court a transcript of the record in the case within thirty days after August 23 or within any extension of time granted during said thirty days; that by such failure the defendant's right to take an appeal to the supreme court had been exhausted and terminated; and that the second notice of appeal, which was served and filed October 4, 1938, was without force or effect.
The correctness of that ruling is questioned by the appellant who has filed a petition for rehearing of the motion of the respondent, state of Oregon, to dismiss his appeal. Accompanying the petition is a motion by the appellant for the dismissal of his first appeal without prejudice and for an order permitting him to rely and stand upon his second notice of appeal.
In his brief filed with the said petition and motion the defendant presses upon us that he should not be deprived of the right to have his case determined upon its merits, in view of the fact that the second notice of appeal was served and filed within sixty days after the entry of judgment-the statutory period in which he could take an appeal-and that the entire transcript of the proceedings and evidence, together with exhibits, has been filed in the supreme court within the time allowed by law if the second appeal be determined to be valid. In view of the importance of this question, careful consideration has been given to our prior ruling and to the additional arguments advanced and authorities submitted by the appellant and the respondent.
It is appropriate here to review briefly the history of the proceedings had in the circuit court relative to this appeal. Rosser was convicted in Polk county, Oregon, of the crime of arson, and on August 12, 1938, was sentenced to imprisonment in the Oregon state penitentiary for a term of twelve years. Thereafter, on August 23, 1938, he served and filed with the clerk of the circuit court a notice of appeal from the said judgment to the supreme court. On the same day the trial judge signed a certificate to the effect that in his opinion there was probable cause for the appeal, and ordered stay of execution pending such appeal.
On the day that notice of appeal was given, one of the attorneys for the defendant ordered from the official court reporter a complete transcript of the evidence, testimony and proceedings in the said cause. This order was given in the presence of the district attorney and assistant district attorney of Polk county. At the time the transcript was ordered, the attorney for the defendant and the attorneys representing the state of Oregon in this proceeding were advised by the court reporter that it would be impossible for her to prepare the transcript before the first day of October and that she would probably not be able to have it completed before the fifteenth of that month. Later, on October 4, 1938, the defendant by his attorney served on the district attorney and filed with the clerk a motion for an order granting him to and including the fifteenth day of November, 1938, within which to serve and file his bill of exceptions, and extending the time to file his transcript in the supreme court to and including the twenty-fifth day of that month. Attached to this motion was the affidavit of one of the defendant's attorneys setting forth the fact that the court reporter had been unable to prepare the transcript of testimony and would probably not have the same completed before November 1, and that after receiving the transcript the said attorney would require ten days in which to prepare the bill of exceptions. An order was made by the circuit court on October 4 granting the said motion, without any resistance made by the state's attorneys.
The defendant on October 4, 1938, also served and filed with the clerk of Polk county another notice of appeal from the judgment sentencing him, which notice was identical with the former notice of appeal served and filed August 23, 1938, with the exception that the first notice of appeal did not state the date in August on which the judgment was entered, which date was set forth in the second notice. There was also procured from the trial judge on October 4 another certificate of probable cause.
Immediately upon completing the transcript of testimony, on October 26, 1938, the court reporter sent it by express to the defendant's attorney in Portland, carrying charge and reporter's charge collect, the latter being $694.25. This amount was paid within a few days by the defendant's counsel, and on November 14, 1938, the defendant's counsel served upon the district attorney the proposed bill of exceptions, containing 166 pages. Attached thereto was the transcript of testimony, consisting of 925 pages. On the following day the circuit court entered an order granting to the attorneys representing the state of Oregon, at their request, until the thirtieth day of that month in which to object to the proposed bill of exceptions, and extending the time within which the bill of exceptions should be filed in the circuit court to and including December 5, 1938, and further granting to the defendant to and including December 15, 1938, in which to file his transcript in the supreme court. No objections were made on behalf of the state of Oregon to the granting of these extensions of time to the defendant.
Thereafter, under date of December 2, 1938, the proposed bill of exceptions, with numerous changes made therein apparently at the suggestion of the attorneys for the state, was approved, settled and allowed by the trial judge. The entire record in the case, including the different notices of appeal, testimony and exhibits, was filed in this court by the defendant December 9, 1938. Prior thereto, however, on November 23, the state served by mail on attorneys for the defendant, and on November 25 filed in this court, a motion to dismiss the defendant's appeal "for the reason that no transcript of said cause was filed in this court [the supreme court] either within a period of thirty days from the date of the filing of notice of appeal in said cause or within any extension of time granted within thirty days from the date of filing of said notice of appeal." The defendant, in support of his petition and motion, directs our attention for the first time to the case of State v. Tucker, 57 Or. 59, 110 P. 392. In that case the defendant was convicted of the crime of participating in a riot. He served notice of appeal, procured a certificate of probable cause and was admitted to bail. Notice of appeal was filed November 15, 1909, but the transcript was not transmitted to this court within the statutory period, and, in the language of the court, "his attempted appeal" was "therefore void". As the law then existed, the defendant had five days after the filing of the notice of appeal within which to file the transcript in the supreme court. The defendant on July 6, 1910, moved "to dismiss the appeal without prejudice, indicating his desire to take a second appeal."
On January 11, 1910, the defendant Tucker by his attorneys filed with the clerk of the circuit court for Wallowa county, wherein the case had been tried, a motion for an extension of time within which to file a bill of exceptions until February 21, 1910. The affidavit in support of this motion stated that the transcript of testimony was not received by defendant's attorneys until December 23, 1909, and that due to the fact that the affiant had no office help he had been unable to prepare a bill of exceptions in said cause; that he was also engaged in the circuit court for Umatilla county and was too busy in his office to prepare the bill of exceptions; and that he would be busy in court for some time to come. The transcript on appeal was filed in the supreme court May 7, 1910.
In the brief in support of the motion to dismiss the appeal in the Tucker case it was stated that the failure to file the transcript within five days after the notice of appeal had been filed was due to oversight on the part of attorneys for the appellant, "due to the fact that further time had been obtained for filing a bill of exceptions, and it was thought that the time for filing a transcript herein was thereby extended"; that the attorneys desired to assure the court that the appeal had been taken in good faith and not for the purpose of delay; and that the effort of the defendant to take a second appeal was "in good faith and not for the purpose of delay".
The record does not contain any motion or order allowing an extension of time for filing the bill of exceptions other than the motion hereinbefore mentioned. There does not appear to have been any further extension of time for preparing serving and filing the bill of exceptions. The transcript was not filed until two and one-half months after the expiration of the extension of time granted by the circuit court for filing the bill of exceptions, and fiveve...
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...1939, 160 Or. 445, 86 P. 2d 413; State v. Estabrook, 1939, 162 Or. 476, 91 P.2d 838; State v. Rosser, 1939, 162 Or. 293, 86 P.2d 441, 87 P.2d 783, 91 P.2d 295. Many like cases in which the court proceedings have not been reported were prosecuted in the state courts during this period. As a ......
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...at 137-38, 523 P.2d 1009; State v. Caldwell, supra; State v. Rosser, 162 Or. 293, 341-42, 86 P.2d 441, order vacated on reh'g 162 Or. 293, 87 P.2d 783 (1939). Nor is it necessary that there be independent corroborating evidence with respect to every material fact necessary to be established......
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