dissenting.
The result reached by the majority is so shocking that I am impelled to dissent.
The facts are simple. On December 6, 1966, the defendant was served at Ontario, in Malheur county, with a subpoena commanding him to appear in the circuit court for Baker county at Baker, the county seat of said county, at 9:30 a.m., on December 12, 1966. On the following day, December 7, 1966, defendant was served with a second subpoena which commanded him to appear in the circuit court for Malheur county at Vale, the county seat of said county, also at 9:30 a.m., on December 12, 1966. Defendant re*611sponded to the command of the first subpoena served on him and appeared at Baker, where he was required to remain in attendance on the court for nearly a week.
Yale and Baker are 90 miles apart. Yale is in the Mountain Time zone and Baker in the Pacific Time zone. In spite of this time differential, defendant could not have been in both courts at the same time. This is not a case in which defendant must prove his inability to comply with a subpoena. Defendant’s inability to comply with one subpoena or the other was conceded in the court below, and is taken for granted by this court. The findings in the court below contain not the slightest suggestion that defendant responded to the wrong subpoena. Neither does this court criticize defendant’s choice to respond to the first subpoena served on him.
The citation served on the defendant in the court below commanded him to appear to show cause why he should not be held in contempt,
“in failing to comply with the command to appear issued from the above-entitled court [Malheur] on the 7th day of December, 1966.”
Since it is conceded that defendant was unable to obey the command to appear in Malheur county, the contempt proceeding should have been dismissed without further ado. All courts hold that inability of the alleged contemnor without fault on his part to obey a court order is a complete defense to a charge of contempt for such failure to obey. State ex rel v. Blackwell, 181 Or 157, 179 P2d 278, 179 P2d 1023 (1947); Anno. 120 ALR 703, and prior annotations listed therein.
Since defendant was not convicted of the contempt with which he was charged, let us see of what charge *612he has beén convicted. The defendant has been found guilty of failing to give notice in advance that he was unable to comply with the Malheur county subpoena. There is not a word about this crime in the order to show cause, or in the citation served on defendant. The first time the defendant heard of the crime of failing to give notice was when he heard his guilt proclaimed in the court below. It is passing strange that this court, which turned loose a man who had stolen a steer because he was charged with stealing a heifer,① should' now send a man to jail for a crime not even mentioned in the charge against him.
The real shocker is the lack of any law, statutory or judicial, making it a crime to fail to give notice in advance of inability to comply with a subpoena. The subpoena itself did not request or direct defendant to notify the court if he was unable to comply with its command. No statute requires a citizen to notify the court that he is unable to comply with a subpoena served on him. And neither this court, nor any other court of which I am aware, has ever laid down a rule that a citizen served with a subpoena must give notice in advance if he is unable to attend at the appointed time and place. There are no common law crimes in Oregon. Mult. Co. Fair Ass’n v. Langley, 140 Or 172, 175, 13 P2d 354 (1932); State v. Gaunt, 13 Or 115, 120, 9 P 55 (1885); State v. Vowels, 4 Or 324, 326 (1873). Since conduct is criminal only when declared so by statute, this court has no power, inherent or otherwise, to declare that failure to give notice in advance of inability to comply with a subpoena is criminal conduct.
Neither may a circuit judge punish as an indirect contempt a failure to give notice in advance of inability to obey a subpoena. We recently held that the *613legislature may limit the power of a non-constitutional court to punish for indirect contempt.② The circuit court is a statutory court. The legislature has limited the power of a statutory court to punish for indirect contempt to the cases and in the manner “provided by statute.” ORS 1.250. The acts or omissions which constitute contempts are listed in detail in ORS 33.010,③ and include disobedience of a subpoena. The list does not include the failure to notify in advance of inability to obey a subpoena. If the legislature added that act to the list and attempted to apply the statute retroactively to defendant, this court would strike it down as an ex post facto law. Ex post facto laws are forbidden by our constitution.④
This court is now adopting a rule making it a crime, punishable by fine or imprisonment, to fail to give notice in advance of inability to comply with a subpoena, and is applying the rule ex post facto to the conduct of the defendant. Why should this court do what it would not permit the legislature to do?
The courts were created to protect the citizens from oppression. If a citizen is oppressed by the courts, to whom can he turn for help.
I dissent.
Perry, C. J., and O’Connell, J., join in this dissent.State v. Russell, 231 Or 317, 372 P2d 770 (1962).
State ex rel Oregon State Bar v. Lenske, 243 Or 477, 493-496, 405 P2d 510, 407 P2d 250, cert. den. 884 US 943, 86 S Ct 1460, 16 LEd2d '541, reh. den. 384 US 1028, 86 S Ct 1920, 16 LEd2d 1047 (1966).
ORS 33.010. “(1) The following acts or omissions, in respect to a court of justice, or proceedings therein, are contempts of the authority of the court:
"* * * * *
“(j) Disobedience of a subpoena duly served, * * *."
Art. I § 21. “No ex-post facto law, * * * shall ever be passed, * * *."