“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
BAND, J.
(concurring). I concur in the result of the decision written by the Chief Justice for the following reasons:
It appears from the records and files of the criminal case that no plea to the indictment was entered by the petitioners herein, the defendants therein, until June 20,1932, for the reason that dilatory motions had been
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filed by the defendants and were under consideration by the court up to that time. Until that date, the criminal case was not at issue and could not be tried and, therefore, did not come within the provisions of section 13-1602, Oregon Code 1930.
Under those circumstances, and petitioners dispute none of said facts, the trial of defendants under said indictment has not been postponed without their consent in violation of the statute. The appeal, therefore, if said facts are true, and they are not disputed in this proceeding, was taken without any authority of law whatsoever and is entitled to no consideration in this or any other court. The matter presented here is a petition for mandamus to compel the trial court to postpone the trial of defendants until their so-called appeal has been disposed of. Under the conditions disclosed, no court would be authorized to exercise the extraordinary power of issuing a mandamus requiring the trial court to postpone the trial of the cause until said so-called appeal has been disposed of in this court.
For these reasons, I was in favor of denying the application without the writing of any opinion but since it was thought proper that the matter should be disposed of by an opinion, I am stating my reasons for concurring in the result.
Rossman and Campbell, JJ., concur.