“petitioners have not shown * * * facts sufficient to bring them within the statute entitling them to dismissal of the indictment”
How later courts described this case
- “petitioners have not shown * * * facts sufficient to bring them within the statute entitling them to dismissal of the indictment”
Written by the judges who cited it.
The opinion
KELLY, J.
(concurring in the result.) An appeal from the Circuit Court to the Supreme Court having been perfected in the case of
The State of Oregon v. Carl H. Johnston and C. A. De Grace,
in which, among other things, the sufficiency of the indictment is challenged by a demurrer, the Circuit Court is without jurisdiction to try that case or make any valid order therein except to make those orders which are necessary for the presentation of the case in the Supreme
*105
Court:
State v. Sutton,
232 Mo. 251 ( 134 S. W. 664 );
Reed v. State,
10 Okl. Cr. App. 444 ( 137 P. 369 );
France v. Superior Court,
201 Cal. 122 ( 255 P. 815 , 52 A. L. R. 869);
Ex parte Bumbaugh,
106 S. W. 362 ;
Edwards v. State,
125 Ga. 5 ( 53 S. E. 579 );
Ex parte Johannes,
1 P. (2d) 984 , and cases there cited;
Green v. State,
21 Ala. App. 201 ( 106 So. 683 );
Houston v. State,
4 P. (2d) 388 ;
State v. Groom,
89 Mont. 447 ( 300 P. 226 ); Vol. 9, Third Decennial Digest,.subject: Criminal Law, Sec. 1083, and cases there cited.
In Oregon, we have no authorized procedure as in Georgia whereby a defendant may except directly to an adverse ruling upon demurrer, and have the question certified to the appellate court; hence, the doctrine of the courts of Georgia as applied to that procedure is not controlling in the case at bar:
Alumbaugh v. The State,
39 Ga. App. 559 ( 147 S. E. 714 ).
The proposed order vacating the Circuit Court’s order fixing July 12, 1932, as the time for the trial of said case and postponing the trial of said case, is not necessary for the proper presentation of said case on appeal, and, hence, the Circuit Court is without jurisdiction to make such proposed order. For that reason, in the opinion of the writer, the Supreme Court ought not to direct the Circuit Court to make said proposed order.