State v. Stilwell

• Decision Date: 08 June 1921
• Parties: STATE v. STILWELL.
• Court: Oregon Supreme Court

198 P. 559

100 Or. 637

STATE v. STILWELL.

Supreme Court of Oregon

June 8, 1921

In Banc.

Appeal from Circuit Court, Union County; Dalton Biggs, Judge.

F. E Stilwell was indicted for perjury, and, from an order overruling his motion to dismiss the indictment, he appeals. Affirmed.

This is an appeal from an order overruling defendant's motion to dismiss an indictment against him. The facts are as follows On October 7, 1919, defendant was indicted by the grand jury of Union county for the crime of perjury, and on December 20 was arraigned and entered his plea of not guilty. The case went over until the succeeding term of court, which began on the first Monday in February, 1920, and during that term the case was set for trial on March 22, 1920. On March 10 the defendant filed a motion for continuance, which was denied. On March 18 he filed an affidavit of prejudice under section 45--1, Or. L. (Olson's Comp.), which section is as follows:

"No judge of a circuit court of the state of Oregon shall sit to hear or try any suit, action or proceeding when it shall be established, as hereinafter provided, that such judge is prejudiced against any party or attorney, or the interest of any party or attorney appearing in such cause. In such case the presiding judge shall forthwith transfer the suit or action to another department of the same court, or call in a judge from some other court, or apply to the chief justice of [the] Supreme Court to send a judge to try the case; or, if the convenience of witnesses or the ends of justice will not be interfered with by such course, and the action or suit is of such a character that a change of venue thereof may be ordered, he may send the case for trial to the most convenient court."

The motion requested that some other judge be called in to try the case. The court thereupon made an order granting a change of venue to Umatilla county. On April 28, 1920, the defendant filed a motion in the circuit court of Umatilla county asking that the cause be remanded to Union county for trial, which motion was supported by an affidavit to the effect that the change of venue had not been granted at his request and that he had not consented and did not consent to such change and objected to a trial in any county but Union, where the alleged crime was alleged to have been committed. This motion was denied, and a trial was had in Umatilla county, resulting in a disagreement.

Thereafter and on May 25 the circuit court of Umatilla county made an order reciting the application to remand the case to Union county; that the court, not being fully advised, had denied said motion; and further that on being advised it was without jurisdiction to try the case, it remanded the same to Union county for trial. When the cause was remanded the defendant filed a motion supported by his affidavit, for a dismissal of the cause pursuant to section 1701, Or. L., which section reads thus:

"If a defendant indicted for a crime, whose trial has not been postponed upon his application or by his consent, be not brought to trial at the next term of the court in which the indictment is triable, after it is found, the court must order the indictment to be dismissed, unless good cause to the contrary be shown."

The motion was overruled, and the defendant appeals.

Geo. T Cochran and C. H. Finn, both of La Grande (Cochran &...