State v. Swanson
| Decision Date | 03 November 1926 |
| Citation | 119 Or. 522,250 P. 216 |
| Parties | STATE v. SWANSON. |
| Court | Oregon Supreme Court |
Department 1.
Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.
R. B Swanson was convicted of assault and battery, and he appeals. Reversed and remanded.
James W. Mott, of Astoria, for appellant.
The defendant was convicted in the circuit court of the crime of assault and battery and has appealed.
In substance, the controversy involved is as follows: The defendant was standing on one of the streets of Astoria talking to an acquaintance, there being other parties to the number of 15 or 20, according to some of the testimony, standing about, but there was no disturbance going on. A police officer came up and ordered the crowd to move on. They accordingly got upon the sidewalk and there is testimony to the effect that the defendant engaged in an altercation with the officer, when the latter seized him informing him he was under arrest, and dragged him into a soft drink establishment adjacent, for the purpose of telephoning to the police headquarters for a wagon to take him to the city jail. There is a dispute in the testimony about whether the officer informed the defendant of the cause of his arrest, although the defendant demanded to know the same. A mêlée ensued between the two, during which the defendant undertook to escape and get away from the officer resulting in the defendant's clothing being torn. In resisting the attempt to escape, it is said the officer struck the defendant with his club. Other witnesses declared that the defendant, after demanding his release, struck the officer in the face. From then on a scuffle ensued in which the officer undertook to use his club and the two of them, in their struggle, fell through a glass door or window of the establishment, and some witnesses said that the defendant was on top of the officer, striking him repeatedly in the back of his head. The officer was fighting back with his club, which the defendant succeeded in taking from him. Then the officer managed to draw his pistol and fired several shots while the defendant was lying upon him in the scuffle, without any taking effect. A bystander came up and took away the pistol, when the defendant escaped but was arrested the next morning.
On this appeal by the defendant, it is assigned as error that the court erred in refusing to allow the defendant's motion for a change of venue. He made affidavit of the publication of sundry prejudicial articles in the newspapers. There were no opposing affidavits filed. This, however, does not make the showing of the defendant conclusive. A change of venue, when allowable at all, is within the discretion of the trial judge which cannot be gainsaid unless an abuse of that prerogative is shown. Moreover, a change of venue may not be had except in cases where the crime charged is a felony. Or. L. §§ 1390, 1391. That assignment is without merit.
There is evidence to the effect that, during the scuffle between the officer and the defendant, some of the bystanders, not in any way engaged in the contest, shouted to the defendant encouraging him to beat the officer and otherwise injure him, the details of which are not necessary to state. This was error, as there is no testimony to indicate that the defendant authorized the statements to be made. They were not binding upon him in this litigation. Bradshaw v. Commonwealth, 10 Bush. (73 Ky.) 576.
The court refused to permit the defendant to prove, by the introduction of the bond of the officer, that the latter was not a...
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State v. Crane
...to defend himself against an illegal arrest, "using no more force than reasonably necessary" to prevent the arrest. State v. Swanson, 119 Or. 522, 527, 250 P. 216 (1926); State v. Linville, 127 Or. 565, 273 P. 338 (1928); State v. Meyers, 57 Or. 50, 110 P. 407 (1910). The Oregon legislature......
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State ex rel. Ricco v. Biggs
...motion on the ground and for the reason that 'under the provisions of Sections 26-311 and 26-312, O.C.L.A., and the case of State v. Swanson, 119 Ore. 522, 250 P. 216, this Court does not have jurisdiction and authority to change the place of trial to another County in a cause involving a m......
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State v. Hansen
...harm is a condition precedent to the assertion of self-defense in a prosecution for assault. 114 A.L.R. 634, 637 (1938). State v. Swanson, 119 Or. 522, 250 P. 216 (1926), supports the view that 'bodily harm' should be the criteria in misdemeanor assault cases. In that case the defendant was......