State v. Smith

• Decision Date: 03 January 1899
• Parties: STATE v. SMITH.
• Court: Oregon Supreme Court

55 P. 534

33 Or. 483

STATE v. SMITH.

Supreme Court of Oregon

January 3, 1899

Appeal from circuit court, Jackson county; H.K. Hanna, Judge.

Frank Lawrence Smith was convicted of murder, and he appeals. Affirmed.

The defendant was indicted and convicted of the crime of murder in the first degree. The case was three times resubmitted to the grand jury. The fourth indictment, and the one upon which the trial and conviction was had, was returned into court on the 8th day of April, 1898, at which time the defendant was arraigned, and at his request the time to plead was extended until the next day at 1 o'clock p.m. On the day fixed he filed a demurrer to said indictment, which, after argument by counsel, was overruled by the court, and thereupon, and upon the same day, he filed a motion to dismiss the indictment assigning as grounds therefor that C.O. Ramsey and J.B. Wait were witnesses before the grand jury, and that their names were neither inserted at the foot of nor indorsed thereon. After a hearing, this motion was denied. Two days later, and after the jury had been impaneled, and the trial had proceeded somewhat, it appeared by the testimony of Dr. E Kerschgressner, coroner of Jackson county, that he had testified in the case before the grand jury, whereupon defendant again moved the court to set aside the indictment for the reason that said witness' name had not been inserted at the foot of, nor indorsed upon, the said indictment, which was likewise overruled, and the trial proceeded, resulting as above stated. The action of the court in overruling these motions is assigned as error, and this presents the only question relied upon for reversal of the judgment below.

C.M Idleman, Atty. Gen., and J.A. Jeffrey, for the State.

WOLVERTON C.J. (after stating the facts).

The two motions and the action of the trial court respecting them present but one question, which is one of practice in no way affecting the merits, and, in our opinion is regulated wholly by statute. The defendant in a criminal action is entitled to have the indictment set aside when the names of the witnesses examined before the grand jury are not inserted at the foot of the indictment or indorsed thereon. Hill's Ann.Laws Or. § 1314, subd. 2. But the motion for the purpose must be made and heard at the time of the arraignment, unless for good cause the court postpone the hearing to a future time; and, if not so made, the defendant...