State v. Walton

• Decision Date: 01 June 1909
• Citation: 102 P. 173,53 Or. 557
• Parties: STATE v. WALTON.
• Court: Oregon Supreme Court

102 P. 173

53 Or. 557

STATE v. WALTON.

Supreme Court of Oregon

June 1, 1909

Dissenting opinion.

For majority opinion, see 101 P. 389.

KING, J. (dissenting).

I find it impossible, after a careful re-examination into the merits of the above action on petition for rehearing, to agree with my Associates in the conclusion reached denying the petition. As reluctant as I am to dissent from the views of the majority, yet, owing to the resultant evil effects that must follow the precedents to be established thereby, I feel it my duty to place on record my dissent from the conclusion announced.

Under the holding of this court in State v. Walton, 50 Or 142, 91 P. 490, 13 L.R.A. (N.S.) 811, the defendant not having entered a plea, no issue was tried, and without an issue I am of the opinion that perjury could not, under any circumstances, be predicated upon false testimony given at such trial, from which it follows that it was error to permit the typewritten copy of the testimony at the former trial to be read in evidence. Section 11, art. 1, of the Oregon

Constitution guarantees to the accused the right to meet the witness face to face. However, in a case where the court acquires jurisdiction of the cause, and an issue is tried, even though it be for some cause declared a mistrial, for the reasons stated in the main opinion, I think such course is permissible. But, where no issue was before the court, the evidence must necessarily be immaterial, of no binding effect, and the reading of which, in any subsequent proceedings, should not be permitted, except under such circumstances as the admission of any statement not given under oath might be deemed proper. It was held in State v. Lewis, 10 Kan. 157, relied upon, that perjury could be predicated upon false testimony given under such circumstances. This was upon the theory that, if the defendant had been acquitted at a trial without an issue, a plea of former jeopardy could have been pleaded. In the case under consideration we have held, and, I think, wisely, that the plea of former jeopardy was not well taken, and it would have been incumbent upon us to so hold in the event the defendant had been acquitted and again tried after the entry of a plea. The error in the case of State v. Lewis, 10 Kan. 157, evidently occurred by erroneously assuming that a plea of former jeopardy, under such circumstances, could have been successfully pleaded. It might also be well to note that Mr. Justice Brewer, who wrote the opinion in State v. Lewis, 10 Kan. 157, also wrote an opinion which was subsequently overruled (as indicated in State v. Walton, 50 Or. 142, 151, 91 P. 490, 13 L.R.A. [ N.S.] 811), holding that the failure to enter a plea of guilty, or not guilty, was a matter of form, and not of substance ( State v. Cassady, 12 Kan. 550), and that his views were not only disapproved by a subsequent decision of that court, but by the Supreme Court of the United States as well ( Crain v. U.S., 162 U.S. 625, 16 Sup.Ct 952, 40 L.Ed. 1097), in which the same eminent jurist, then a member of that court, dissented. His preconceived, but subsequently disapproved, views along these lines doubtless had much to do with the conclusion reached in State v Lewis, 10 Kan. 157, on this question, the fallacy of which consisted in assuming a premise which had no foundation in law. While I believe that under some circumstances the reading of testimony taken in one trial should be permitted in a retrial of the same cause, I think in the case at bar where there was no issue, it cannot be said that there was in law, a trial of any kind, for which reason the testimony complained of was inadmissible. A trial, under such circumstances, is a mere nullity, and any evidence adduced thereat hearsay only. No one will question--in fact it is...