State v. Walton

• Decision Date: 27 August 1907
• Parties: STATE v. WALTON.
• Court: Oregon Supreme Court

91 P. 495

51 Or. 574

STATE v. WALTON.

Supreme Court of Oregon

August 27, 1907

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

Charles W. Walton was convicted of an assault with a dangerous weapon, and appeals. Reversed, and new trial ordered.

Henry St. Rayner, for appellant.

G.C Moser, Deputy Dist. Atty., for the State.

KING C.

An information was filed September 12, 1904, against defendant under B. & C. Comp. § 1771, charging him with an assault with a dangerous weapon by shooting one O. Nelson, for which defendant was tried, convicted, and sentenced to imprisonment in the penitentiary for a term of five years. The defendant here is the same person charged with the crime of assault and robbery of one Emmanuel Johnson, in which case an opinion is filed at this time. Both cases were tried at the same term of the circuit court, resulting in conviction in each case and in appeals to this court.

The two cases were submitted together, similar errors being relied upon in each, consisting of the alleged erroneous order of the court below in overruling objections made to imposing sentence, which were there interposed on the ground that defendant was tried and convicted without being called upon to enter a plea as to his guilt or innocence. The only difference between the two proceedings, as disclosed by the record thereof, is that in this case the defendant, through his counsel in open court, by written motion, asked for a postponement of the trial, while in the action charging him with assault and robbery no continuance was requested. In both actions it is maintained that defendant was not injured by his failure to enter a plea; but in the case before us it is specially insisted by the state that since under B. & C Comp. § 1379, defendant was not entitled to move for a continuance until the case was at issue on a question of fact, and as such issue could have been formed only by a plea of not guilty, or by refusal to plead (B. & C. Comp. § 1375) it will be presumed that defendant either pleaded or refused to do so, and that, if such presumption cannot follow, it must then be held that defendant, by asking a postponement of the trial, and thereafter submitting to the proceedings without calling attention or in any manner objecting to the irregularity until after verdict, waived his rights to be called upon to enter a plea. All questions suggested here except as to the effect of the motion for postponement, are considered and determined in our opinion filed at this time in State v. Walton, above adverted to.

That it cannot be presumed a plea was entered by reason of any proceedings noted in the record, from which an inference to that effect may be drawn, is clearly settled adversely to the position maintained by plaintiff in the following: State v. Gilbert (Or.) decided May 14, 1883 (unreported); People v. Corbett, 28 Cal. 328; Hopt v. People of Utah, 110 U.S. 574, 4 Sup.Ct. 202 28 L.Ed. 262; Crain v. United States, 162 U.S. 625, 16 Sup.Ct. 952, 40 L.Ed. 1097. ...