State v. Vawter

• Decision Date: 27 November 1963
• Citation: 386 P.2d 915,236 Or. 85
• Parties: STATE of Oregon, Respondent, v. Frank Eugene VAWTER, Appellant.
• Court: Oregon Supreme Court

Page 915

386 P.2d 915

236 Or. 85

STATE of Oregon, Respondent, v. Frank Eugene VAWTER, Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted Oct. 3, 1963.

Decided Nov. 27, 1963.

Irvin D. Smith, Portland, argued the cause and filed briefs for appellant.

George E. Juba, Deputy Dist. Atty., Portland, argued the cause for respondent. On the brief were George Van Hoomissen, Dist. Atty., and David Robinson, Jr., Chief Deputy Dist. Atty., Criminal Dept.

Before McALLISTER, C. J., and PERRY, O'CONNELL, DENECKE, and LUSK, JJ.

LUSK, Justice.

The defendant has appealed from an order of the circuit court denying his motion to dismiss an indictment which charged him with the offense of converting intrusted property in violation of ORS 165.030. The basis of the motion was delay in bringing the defendant to trial.

The record before us discloses the following: The defendant was arrested on July 12, 1962, on the charge above stated. On July 17 he was brought before the municipal court for the city of Portland, waived examination, was held to answer, and committed to the Multnomah County Jail. On August third he was returned to the Oregon State Penitentiary as a parole violator. He was indicted by the grand jury on September 11, 1962. A detainer was filed by the district attorney for Multnomah county with the penitentiary on or about September 12, and on January 31, 1963, the defendant wrote to the district attorney from the penitentiary requesting that his detainer be 'withdrawn on a probationary period.' On February 21, 1963, the court ordered the defendant returned to Multnomah county for further proceedings and on February 26 he was arraigned on the indictment. He requested the court to appoint counsel for him and the court did so and continued the matter until March 5, 1963. On that day the defendant filed his motion to dismiss the indictment and after a hearing the motion was denied on March 15.

The right of the defendant in a criminal case to a speedy trial is guaranteed by Article I, section 10, of the Constitution of Oregon, which reads in part: 'No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay * * *.' An implementing statute, ORS 134.120, reads:

'If a defendant indicted for a crime, whose trial has not been postponed upon his application or by his consent, is not brought to trial within a reasonable period of time, the court shall order the indictment to be dismissed.'

Contrary to the rule in most of the jurisdictions of the country, this court has consistently held that it is not incumbent upon the accused to demand a trial or take affirmative action to enforce his right to a speedy trial. State v. Dodson, 226 Or. 458, 466, 360 P.2d 782, and authorities there cited. But in 1955 the legislative assembly adopted a different rule for a defendant who is imprisoned in the Oregon State Penitentiary or the Oregon State Correctional Institution for another offense, Oregon Laws 1955, Chapter 387, codified as sections 134.510, 134.520, and 134.530, Oregon Revised Statutes. ¹

Under this statute an accused confined in one of the penal institutions on another charge may give written notice to the district attorney to bring him to trial and if this is not done within 90 days after receipt of the notice the criminal proceeding must be dismissed. In Bevel v. Gladden, 232 Or. 578, 583, 376 P.2d 117, we held that when a criminal defendant, represented by counsel, chooses not to avail himself of this procedure, he waives the right to secure dismissal of the indictment because of undue delay. The dictum in State v. Gardner, Or., 377 P.2d 919, 923, so far as it seems to be in conflict with this holding in the Bevel case, should be disregarded. Our statute appears to have been patterned after a similar statute of California and the construction given it in the Bevel case is in harmony with the construction of the California statute by the courts of that state. People v. Godlewski, 22 Cal.2d 677, 140 P.2d 381 (1943); People v. Ragsdale, 177 Cal.App.2d 676, 2 Cal.Rptr. 640; Osmulski v. Superior Court of Placer County, 169 Cal.App.2d 444, 337 P.2d 520. It so happened that in the Bevel case the prisoner was represented by counsel, but the reference to that fact in the opinion cannot be taken as a decision that the statute is not applicable to a prisoner who is without counsel. That question is left open.

Relying upon the Bevel case, the state contends that the defendant has waived his right to a trial without delay by failing to demand a trial. The state further contends that in any case, the record does not support the defendant's claim of undue delay.

The defendant says in his brief that the statute is not applicable because he did not know of the indictment until he was brought into court to be arraigned on February 21, 1963. There is no evidence in the record, one way or the other, on this subject. In the federal courts the rule obtains that an accused may waive his right to a speedy trial guaranteed by the Sixth Amendment by failing to demand a trial. In two federal cases involving persons confined in the penitentiary for other offenses it has been held that in the absence of evidence as to whether the accused knew of an indictment returned against him while so confined it could not be said that he had thus waived his right. Taylor v. United States, 99 U.S.App.D.C. 183, 238 F.2d 259, 261 (1956); Fouts v. United States, 253 F.2d 215, 218 (6th Cir., 1958). In another federal case it was assumed that the defendant knew of the indictment, but a motion to dismiss was allowed after twenty years had elapsed without bringing the defendant to trial. United States v. Chase, 135 F.Supp. 230 (N.D.Ill.1955). For nineteen years he had been incarcerated in Alcatraz Prison under conditions which, it was said, made it impossible for him to demand a trial.

There certainly should be no room for debate about the proposition that a person who does not know that he has been indicted cannot be expected to demand a trial, although the five-to-four decision in McCandless v. District Court (Polk), 245 Iowa 599, 61 N.W.2d 674, seems to be to the contrary. It may be arguable, however, that, under a statute such as ORS 134.510 through 134.530, the burden of proving ignorance of the indictment is on the defendant, especially where, as in the present case, the defendant has been arrested and bound over to the grand jury. The briefs of counsel are silent upon this question and we shall leave it undecided, as we are of the opinion that, entirely apart from the statute, this court should not disturb the circuit court's exercise of discretion in ruling upon the motion to dismiss the indictment.

We have held that the reasonable period of time mentioned in ORS 134.120 forbids unreasonable delay after indictment found, as the statute expressly refers to 'a defendant indicted for a crime.' State v. Dodson, supra, at 461-462 of 226 Or., at 784 of 360 P.2d. See, also, State v. Jackson, 228 Or. 371, 376, 365 P.2d 294, 89 A.L.R.2d 1225. We think, however, that the requirement of Article I, section 10 of the Constitution that 'justice shall be administered * * * without delay' means that there shall be no unreasonable delay after a formal complaint has been filed against the defendant. This is the construction placed upon the Sixth Amendment by the United States Court of Appeals for the Ninth Circuit, Iva Ikuko Toguri D'Aquino v. United States, 192 F.2d 338, 350 (9th Cir., 1951) and by the Supreme Court of California upon the guarantee of a speedy trial in the constitution of that state, People v. Jordan, 45 Cal.2d 697, 290 P.2d 484; People v. Godlewski, supra. While Article I, section 10, of the Constitution of this state does not contain the word 'accused,' as do the comparable provisions in the Constitutions of the United States ² and of California, ³ still, we think that the same construction should be given to the constitution of this state. No different measure of protection of the rights of persons accused of crime can reasonably be said to have been in the minds of the framers of our constitution.

The defendant did not forfeit his right to a speedy trial because he was incarcerated in the penitentiary under sentence for another offense, State v. D'Autremont, 212 Or. 344, 349, 317 P.2d 932, and authorities there cited. Nevertheless, it was suggested in the leading case of State v. Keefe, 17 Wyo. 227, 98 P. 122, 131, 22 L.R.A.,N.S., 896, 906, that in the case of convicts 'a trial might be longer delayed, in the absence of a statute controlling the question, than in the case of one held in jail merely to await trial without violating the constitutional right, for an acquittal would not necessarily terminate imprisonment.'

The elapsed time from July 16, 1962, when an information of felony was filed against the defendant, until March 5, 1963, the date he filed his motion to dismiss, was seven months and 17 days. An affidavit was filed by the defendant in support of his motion, but it states nothing in addition to the record to which we have previously referred, other than that in the intervening time the defendant had been without counsel. An affidavit of a deputy district attorney adds nothing to the facts already stated. No testimony appears to have been taken at the hearing and the order of the trial judge denying the motion to dismiss recites merely that the court had 'considered affidavits and argument of counsel.'

The motion was addressed to the discretion of the trial judge. State v. Jackson, supra, 228 Or. at 378, 365 P.2d at 297; State v. Dodson, supra, 226 Or. at 465, 360 P.2d at 786; State v. Ellison, 209 Or. 672, 681, 307 P.2d 1050; State v. Kuhnhausen, 201 Or. 478, 513, 266 P.2d 698, 706, 272 P.2d 225. As we have frequently said, '* * * the constitutional right of an accused person to a speedy trial contemplates a trial conducted according to fixed...