State v. Walton

• Decision Date: 02 February 1909
• Citation: 53 Or. 557,99 P. 431
• Parties: STATE v. WALTON.
• Court: Oregon Supreme Court

99 P. 431

53 Or. 557

STATE v. WALTON.

Supreme Court of Oregon

February 2, 1909

Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge.

Charles W. Walton was convicted of assault with a dangerous weapon and he appeals. Affirmed.

See also, 91 P. 495.

On September 12, 1904, an information was filed in the circuit court for Multnomah county, signed "John Manning District Attorney, by G.C. Moser, Deputy," charging defendant with the crime of assault with a dangerous weapon. On the next day he was duly arraigned and took time to plead. On the 16th he demurred to the information, which demurrer was overruled on the 5th of October. On the 21st of October he was put on trial, without having pleaded to the indictment, and was convicted and sentenced to the penitentiary. From this judgment he appealed, and in August 1907, it was reversed, because no plea to the information had been entered by defendant, and the cause was remanded to the court below for a new trial. The mandate was entered in the lower court on January 6, 1908, and on the 11th of April defendant moved to quash the information because: (1) It was not indorsed, signed, presented, or filed by the district attorney, but by G.C. Moser, assuming to act as deputy district attorney, and Moser was not the duly or regularly appointed deputy and had no power or authority under the Constitution to indorse, sign, present, or file the information; (2) that the effect of the reversal of the former judgment was to place defendant in the situation he was in before the information was filed, and that he could not be further arraigned and required to plead to or be tried thereunder. This motion was overruled, and defendant pleaded "That he has already been tried and convicted of the alleged crime charged in the information in this case by the verdict of a jury impaneled and sworn therein, returned, filed, and entered in this court on the 24th day of October, 1904; that he was thereby put in jeopardy for the alleged offense charged in said information; and that under the Constitution and laws of this state he cannot be legally retried for said alleged offense, and pleads the same in bar of further trial thereunder." This plea was overruled and decided by the court without the interposition of a jury, and defendant entered a plea of not guilty.

The cause was subsequently tried before a jury, and the court permitted Clara M. Badgley, the official reporter, to read the testimony of Emanuel Johnson and Stephen Hogeboom, witnesses for the state on the former trial; the state having shown that Hogeboom was dead and Johnson beyond the jurisdiction of the court. On cross-examination, Nelson, a witness for the prosecution, was asked, among other things, whether he had not made certain statements, inconsistent with his present testimony, to one Slover, at a certain time and place, and replied that he had not. Slover was afterwards called by defendant and asked whether Nelson had made the statements imputed to him, and denied that he had. Defendant thereupon asked him if he had not so stated to Mrs. C.K. Smith, and he replied that he had not. Defendant called Mrs. Smith and sought to prove by her that Slover had made such a statement, but the court, upon objection of the state, rejected such testimony. During the examination of defendant, he stated that he was 17 years of age at the time the crime with which he was charged was alleged to have been committed. The state subsequently called Miss Butler, who testified she was a teacher in the Couch School of Portland; that she had in her hand the register of attendance and deportment of the pupils of such school, which was in the handwriting of Miss McKenzie; that the register was made from certain census forms, which were sent out to be filled in by parents or guardians of the pupils, and, when returned, copied into the register. There was no proof as to who furnished the data for such census returns, or that they were correctly copied. Defendant objected to the admission of the testimony on the ground that it was hearsay and immaterial; but the objection was overruled, and the witness permitted to answer that the school register contained a statement that on the 7th of February, 1900, defendant was 15 years, 3 months of age. At the close of the testimony defendant requested the court to instruct the jury: That the crimes of assault and battery and simple assault are included within that charged in the information, and that defendant could be found guilty of either of such offenses if the evidence warrants; that "you are the judges of, and have a right to determine, under the Constitution of this state, the law as well as the facts of this case, and it is your constitutional province and duty to do so in arriving at your verdict and you are to determine whether under the law and the facts in evidence the defendant should be convicted or acquitted of the charges laid in the information." The court gave the first of these instructions, in substance, but refused the second. The defendant was convicted, and, in answer to the question whether he had anything to say as to why the sentence of the court should not be pronounced upon him, replied that he objected for the reason that the information, under which he had been tried and convicted, was invalid because not signed by the district attorney, and that the plea in bar was tried by the court without intervention of the jury. These objections were overruled, and defendant sentenced to the penitentiary, from which judgment he appeals.

Henry St. Rayner and Dan R. Murphy, for appellant.

Thad. W. Vreeland, for the State.

BEAN, J. (after stating the facts as above).

The motion to set aside the information was properly overruled. It was not made until after a demurrer had been interposed and overruled, and therefore came too late. State v. Smith, 33 Or. 483, 55 P. 534; State v. McElvain, 35 Or. 365, 58 P. 525. And, moreover, it was without merit. The office of prosecuting attorney is provided for, and its duties defined, in part, by the Constitution. Section 17, art. 7. The office therefore cannot be abolished or the constitutional duties thereof abridged by the Legislature; but there is nothing in the Constitution which restricts the Legislature or lawmaking power from providing that such officer may have deputies to act in his name and stead. Nesbit v. People, 19 Colo. 441, 36 P. 221. The Legislature made such a provision by the laws of 1903 (Gen.Laws 1903, Sp.Sess. p. 32), and the act of the deputy in signing and filing the information was the act of his principal, and therefore satisfies the requirements of section 9, art. 1, of the Constitution, which declares that no warrant shall issue but upon probable cause supported by oath or affirmation. State v. Guglielmo, 46 Or. 261, 79 P. 577, 80 P. 103, 69 L.R.A. 466.

Upon the former appeal the judgment was reversed, and a new trial ordered. From the entry of judgment of the record in the court below the action was pending in that court for trial notwithstanding the former verdict and judgment. B. & C. Comp. § 1489. The plea of a former conviction was not in form or substance as required by the statute (section 1367) and was not sufficient to constitute such a plea at common law. Mr. Bishop says the substantial allegations at common law are: "That heretofore, at a court which is mentioned, an indictment whose terms are fully recited was found against the defendant under a name stated, which may be that in the present indictment or not according to the fact; that he pleaded thereto, and was convicted or acquitted as the fact was; and the sentence thereon is set out. The plea then avers that the defendant in the former indictment was...