State v. Holloway

Opinion by

Mr. Chief Justice Moore.

The defendant, Chester C. Holloway, was convicted of the crime of assault with a dangerous weapon, and appeals from the resultant sentence, assigning as error the action of the court in denying his pleas of former jeopardy. A motion has been interposed by the district attorney to affirm the judgment on the ground that the plea was not suitably made, and that copies thereof are improperly included in the transcript. No bill of exceptions has been secured in this cause, but there was filed with our clerk a transcript on appeal containing a copy of the indictment and of the journal entries made herein, showing the defendant’s arraignment, his plea of not guilty, trial, that after having been out all night and being unable to reach a verdict, the jury were discharged the following noon, that the defendant’s pleas were overruled and exceptions allowed, and that another trial was had resulting in the judgment indicated. The first plea was subscribed and sworn to by the defendant’s attorney and filed February 12, 1909, and the other plea, which was not signed or verified, was filed March 11, 1909, the day the second trial was commenced. As the pleas practically present the same question, the latter only will be set forth, and is as follows:

“The defendant pleads that he has already been acquitted of the crime charged in this indictment by the above-entitled court on the 17th day of November, 1908. This plea is based upon the following specific facts, to-wit: On Friday, the 13th day of November, A. D. 1908, in the above-entitled court, the said defendant was put upon his trial upon the said indictment, and a jury between the State of Oregon and said defendant upon said indictment was in due form of law drawn, impaneled, charged and sworn to well and truly try the said issue, and the said jury, without the consent of the said defendant, have been discharged and separated without rendering any verdict in said cause; that at the time said jury were discharged and separated the said defendant was, by order of the above-entitled court, confined and held in the corridor of the county jail in the city of Portland, Oregon, and that neither said defendant nor his counsel was present in court when said jury was discharged and separated; that said jury when they were discharged as aforesaid had not considered the evidence in said cause a reasonable length of time, and there was, when said jury was discharged, a reasonable probability that said jury would agree upon a verdict, if given further time within which to reach an agreement; that there was no urgent necessity or special cause for the discharge of said jury, and that said jury was irregularly discharged; that said court did not find that said jury could not reach an agreement, and did not enter any order to that effect upon its records, nor did said court enter upon its records any order or finding that there was any necessity for the discharge of said jury. The defendant pleads that the above facts show conclusively that the defendant cannot by the law of the land be again put upon his trial upon the said indictment.”

If a party is formally accused of a misdemeanor and has been held to answer the charge, his personal appearance is unnecessary, and he may be represented by counsel who is authorized to enter a plea for him: Section 1336, B. & C. Comp.; State v. Waymire, 52 Or. 281 (97 Pac. 46: 21 L. R. A. (N. S.) 56) ; State v. Sullivan, 52 Or. 614 (98 Pac. 493) ; Curran v. State, 53 Or. 154 (99 Pac. 420.) In cases of felony, however, our statute regulating the procedure requires every plea to be oral and entered in the journal of the court: Section 1367, B. & C. Comp. The latter enactment is probably a recognition of the ancient rule which demanded that a party accused of treason should plead orally, unless he was found by a jury called for that purpose to be mute by visitation of God, whereupon his trial proceeded, but, if he was found to be mute of malice, he was treated as having pleaded guilty: 1 Stephen, History Criminal Law Eng. 298. This author on the next page of the valuable work to which attention has been directed, in assigning a reason for a prisoner’s declining to say whether or not he was guilty, remarks:

“The object of refusing to plead was that as in that case there was no conviction, no forfeiture took place, and the property of the accused person was thus preserved for his heir.”

1. The practice prevailing in this State, where a plea in bar is interposed in a case of felony, is for counsel for the accused to prepare a written statement of the facts relied upon to defeat the maintenance of the action, which specification the defendant generally reads to the court, but, if it is inconvenient for him to do so, his counsel reads it for him, whereupon the court inquires of the accused if that is his plea, and, upon receiving an affirmative answer, directs the clerk to enter the statement in the journal. If the facts thus alleged are controverted by the State, a jury is impaneled to determine the issue, and, if, under proper instruction, they find for the defendant, he is discharged, but if they determine for the State, a trial on the merits is then had. As indicating the method of putting in such special defenses it is noted in Rex v. Sheen, 2 Car. & P. 634, 636: “To this plea Curwood, for the prosecution, replied ore terms as follows: (Which he read from a note on the back of his brief) ’’ — setting forth a copy of the language employed. Whatever motive prompted the enactment that every plea in a case of felony must be oral and entered in the journal of the court is immaterial, for the law, having been so written, is controlling and must be obeyed. In civil actions no exception need be taken or allowed to any decision upon a matter of law when the ruling is made wholly upon an instrument in writing and on file in the court. Section 172, B. & C. Comp. In criminal causes, however, as the statute has prescribed the manner of submitting a plea, a compliance with the requirement is necessary, and a plea can only become a part of a transcript on appeal by having been entered upon the journal of the lower court. If the plea is in writing and not so recorded, even though it may be incorporated in the transcript, it is ineffectual. Thus under a similar statute of California which demanded that every plea in a criminal action should be oral and entered upon the minutes of the court a party accused of a misdemeanor put in a special plea in writing of which only a mere memorandum was noted in the minutes. The defendant was convicted and appealed, bringing up a transcript that did not include a bill of exceptions. A copy of the plea was included in the transcript, but it was held that since the writing was not made a matter of record in the lower court a copy thereof was improperly incorporated, and for that reason was unavailing: People v. O’Leary, 77 Cal. 30 (18 Pac. 856.)

2. It will be remembered that the transcript shows the pleas in question were “filed,” the use of which word implies that the papers were placed in the official custody of the clerk of the trial court who probably indorsed thereon the word mentioned and the date of receiving the manuscripts, in attestation of which he also wrote his name thereunder and retained the instruments in his office, subject to inspection by persons interested therein. It is customary in Oregon, when a defendant in a criminal action interposes a plea, for the court to order that it be recorded upon the journal. In the case at bar the transcript, referring to the arraignment, contains a statement as follows:

“The defendant * * pleads that he is not guilty of the crime charged in the indictment. It is ordered that the plea of not guilty be and the same is hereby entered of record.”

No order was made herein that the pleas referred to should be recorded. The only allusion to be found in the transcript to these special defenses is the following recital to-wit:

“After hearing the arguments of defendant’s counsel on the plea in bar heretofore duly filed in this cause, and the court, being fully advised in the premises, denies said plea in bar, to which the defendant excepts and the court allows said exception.”

We think it satisfactorily appears from the transcript before us that the pleas were never formally read to the court, and for that reason were not ordered recorded. As the only question presented is a matter founded on the record, the judgment should be affirmed (3 Cyc. 419; Fisher v. Kelly, 26 Or. 249 (38 Pac. 67); Miles v. Swanson, 47 Or. 213 (82 Pac. 954), and it is so ordered.

Motion Allowed: Affirmed.