State v. Swain

• Decision Date: 24 April 1934
• Citation: 147 Or. 207,31 P.2d 745
• Parties: STATE v. SWAIN. [*]
• Court: Oregon Supreme Court

31 P.2d 745

147 Or. 207

STATE v. SWAIN. ^[*]

Supreme Court of Oregon

April 24, 1934

Department 1.

Appeal from Circuit Court, Multnomah County; George R. Bagley Judge.

Allan Swain was convicted of violating Code 1930, § 25-1302, being a part of the Blue Sky Law, and he appeals.

Affirmed.

William B. Murray, of Portland, for appellant.

Lotus L. Langley, Dist. Atty., and Charles S. Cohn, Deputy Dist Atty., both of Portland, for the State.

ROSSMAN Justice.

The portion of the evidence necessary to a consideration of the assignments of error indicate that the Pacific Phosphate &amp Chemical Company, organized in August, 1931, was a corporation engaged in the fertilizer business, with an office at 210 Postal building, Portland. The defendant, who testified that he had resided for twelve years in Oregon, owned 350 shares (par value, $10) of its total capitalization of 1,000 shares, and was the president of the corporation. In the fall of 1931 he desired to sell some of his stock, and, on behalf of the corporation, desired to employ some men who would have a financial interest in the corporation. At that time he authorized a firm entitled Allison & McAtee, brokers, to procure prospects for him. This firm daily inserted advertisements in the classified columns of the daily press, under the caption of "Business Opportunities," stating: "Want active handy man to work in factory. Owner agrees to pay $125 a month; $450; call 401 Dekum Bldg." Ross Richardson, who resided in Portland, observed these advertisements, called upon the defendant at 401 Dekum building, and, as a result of their conference, purchased from the defendant 40 shares of the capital stock of the corporation at a price of $400, and was given a contract to enter its employ as a truck man. The stock certificate was delivered to Richardson, October 22, 1931, in Multnomah county. N. S. Allen, who also lived in Portland, saw one of these advertisements and called upon the defendant at 401 Dekum building. At the conclusion of a conference October 1, 1931, Allen purchased 30 shares of the defendant's stock at a price of $300, and was given a contract to work in the warehouse of the corporation. This contract was made in Portland. Allen testified that the stock certificate was delivered to him by a Mr. Murray, whose office, according to the record, is located in Portland. Karl Nelson, who resides at Aberdeen, Wash., read the aforementioned advertisements, and while in Portland entered into a contract with the defendant on or about August 23, 1931, whereby he agreed to purchase 20 shares of stock in the corporation and was given employment as a salesman. The evidence does not clearly indicate where the purchase price of the stock ($200) was paid, but it is nevertheless readily capable of supporting the conclusion that it was paid in Portland. The stock certificate was handed to Nelson in the state of Washington while he was there on the business of the company, apparently not as the result of a contractual duty, but merely because he and the defendant happened to meet one another there. S. Bernard Passmore, who resides in Portland, saw the aforementioned advertisements, and, in response to them, called upon the defendant. He was taken into the company's employ and while working for it was solicited by the defendant to purchase stock. The defendant, according to Passmore, explained that he had a license from the state authorizing him to sell the securities. When the defendant made these sales he possessed no license from the corporation department to sell stock. On February 17, 1932, an information of felony was filed in the district court of Multnomah county, upon the complaint of the aforementioned Ross Richardson, charging the defendant with unlawfully selling securities. February 17, 1932, the defendant was bound over to the grand jury by the district court. At that time there was on file in the superior court of the state of California, for the county of Sacramento, an information charging the defendant with the crime of issuing a check without sufficient funds. March 5, 1932, the Governor of this state, having received a requisition from the Governor of the state of California for the surrender of the defendant, executed an extradition warrant for his return to California. March 8, 1932, the defendant petitioned the circuit court of this state for a writ of habeas corpus seeking his release from custody under the extradition warrant. March 11, 1932, the circuit court dismissed the petition and remanded the defendant into custody for return to the state of California. March 19, 1932, the defendant pleaded guilty to the charge pending against him in the aforementioned California court, and, on June 7, 1932, was sentenced to confinement in a penitentiary for two and one-half years, the sentence to be suspended, however, after the defendant had served three months in the Sacramento county jail. Before the expiration of the March, 1932, term, the circuit court of Multnomah county made an order reciting that, good cause having been shown, the hearing of the charge against the defendant was continued to the April term; in like manner the charge was continued from the April to the May term, and from the May to the June term. June 24, 1932, the grand jury of Multnomah county returned against the defendant the indictment with which we are now concerned. September 11, 1933, when the defendant returned to our state, he was arrested upon the charge stated in the indictment; September 15, he was arraigned; October 6, he pleaded "not guilty," and, on October 23, the cause was tried.

The first assignment of error submits that the circuit court erred when it denied the defendant's motion to dismiss the indictment which was based upon the following contentions: (1) The defendant was denied a speedy trial, as provided by Amendment 6 to the Federal Constitution; (2) the indictment was not found at the next term of court after the entry of the district court's order holding the defendant to the grand jury, as provided by section 13-1601, Oregon Code 1930; (3) the defendant was not tried at the next term of court after the indictment was found, as provided by section 13-1602, Oregon Code 1930; (4) the prosecution of the cause was discontinued; and (5) the state "waived its right and is barred from prosecuting the defendant in the above entitled case and cause."

Let us consider the merits of these contentions. The first assumes that the Sixth Amendment to the Federal Constitution which guarantees an accused "the right to a speedy and public trial" has application to trials in the Oregon courts. The contrary has been twice held by this court. We quote from State v. Bailey, 115 Or. 428, 236 P. 1053, 1054: "Among his alleged reasons for attacking the statute is his assertion that it violates the Fifth and Sixth Amendments of the United States Constitution. This contention may be dismissed with the observation that these provisions contain no restriction on the powers of the state to legislate. State v. Laundy, 103 Or. 443, 204 P. 958, 206 P. 290, and authorities there cited." In State v. Gaetano, 96 Conn. 306, 114 A. 82, 15 A. L. R. 458, the court expressly held that the Sixth Amendment has no application to proceedings in state courts. We dismiss this contention as lacking merit.

The second contention is based upon section 13-1601, Oregon Code 1930, which provides: "When a person has been held to answer for a crime, if an indictment be not found against him at the next term of the court at which he is held to answer, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown." It will be recalled that February 17, 1932, the defendant was held by the district court to answer to the grand jury, and that during the March, April, and May terms of the circuit court the court entered orders which, after stating that good cause had been shown, continued the charge against the defendant to the next term. These orders sufficed to supply the "good cause" required by this section of our laws to prevent dismissal of the prosecution, and are not subject to collateral attack. State v. Moltzner, 140 Or. 128, 13 P.2d 347. We find no merit in this contention.

The third proposition submits that section 13-1602, Oregon Code 1930, was violated when the defendant was not tried at the term of court immediately following the one in which the indictment was found. This section of our laws provides "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." It will be recalled that the indictment was returned against the defendant June 24, 1932, and that on June 7, 1932, the superior court of the state of California for the county of Sacramento had sentenced him to incarceration in a California penitentiary for two and one-half years, the penitentiary sentence to be suspended, however, after the defendant had been confined for three months in the county jail of Sacramento county. Section 25-1320 authorizes courts to impose a five-year penitentiary penalty as punishment for the crime charged against this defendant. Hence, the crime of which he was accused was a felony, and such being its nature, section 13-904, Oregon Code 1930, required his personal appearance at the trial. The purpose of section 13-1602 is to carry into effect the guaranty embodied in article 1, § 10, Oregon Constitution, that "justice shall be administered *** without delay. ***" State v. Lee, 110 Or. 682, 224 P. 627, 628; State v. Putney, 110...