State of Oregon v. Kuhnhausen

PERRY, J.,

dissenting.

I am unable to agree with the reasoning, and, therefore, the result, of the prevailing opinion and the specially concurring opinion, and in dissenting therefrom I wish to set forth some of my reasons why I still adhere to the views of this court as expressed in our former opinion.

As I view the prevailing and specially concurring opinions, in order that those opinions may have any foundation at all upon which to build, they must rely entirely upon the general order of continuance made and entered by the trial court on June 30, 1952.

The prevailing opinion attempts to breathe validity into the order by making it discretionary with the trial court on his own motion to continue criminal cases beyond the next term of court in which the indictment *597 is found, and the specially concurring opinion makes sueh an order of the court nonreviewable in this court because an appeal is not a direct attack upon the order, but is collateral thereto.

It seems to me that the statute is clear and unambiguous. It reads as follows: “If a defendant indicted for a crime, whose trial has not been postponed upon his application or by his consent, be not brought to trial at the next term of the court in which the indictment is triable, after it is found, the court must order the indictment to be dismissed, unless good cause to the contrary be shown”. §26-2002, OCLA, (OES 134.120). This statute sets not the minimum time, but the maximum time in which a defendant may be held before being tried, or the cause dismissed. It does not say that the court “may” dismiss, it uses the positive term “must”, and is mandatory as a rule of law, ordering dismissal unless any one of three conditions exist, to-wit: (1) the defendant has requested a postponement beyond the period of time under the terms of the statute, (2) the defendant has consented to a postponement beyond the time limited by the terms of the statute, or (3) when, although the time limit of the statute has expired, the court can say that a good cause existed for not trying the defendant within the time limited and prescribed by the statute. In this matter we are concerned only with the last, or third, proposition.

The people of this state enacted § 26-2002, OCT;A, (OES 134.120) as a positive rule of law to govern criminal proceedings. Since this law is mandatory, no discretion vests in the trial court. “Where there is a clearly defined and well-settled applicable rule of law the courts are bound to enforce the rule and discretion is at an end”. State v. Lewis, 113 Or 359, *598 364 , 230 P 543 , 232 P 1013 ; Long v. George, 296 Mass 574, 7 NE2d 149 ; Wilson v. Michigan State Board of Registration in Medicine, 228 Mich 25 , 199 NW 643 ; Graham v. Yakima Stock Brokers, 192 Wash 121, 72 P2d 1041 .

In the case of In re Von Klein, 67 Or 298 , 135 P 870 , where the defendant sought release by mandamus for delay in bringing him to trial, Mr. Chief Justice McBride on page 301 of the opinion said:

“It is contended upon the argument that the remedy by appeal would not be adequate, for the reason that upon appeal the decision of the lower court could, be reversed only for an abuse of discretion ; but the argument is fallacious. Either the defendant had an absolute right to a dismissal upon the facts presented, or the court, had an absolute right to refuse.”

It is, therefore, not a matter of judicial discretion where there is no dispute on the facts, but a matter of judicial judgment upon a question of law as to whether or not there has been a showing made of good cause for refusing the defendant’s application for a dismissal.

In my opinion “good cause” must be such a cause as is capable of being recognized in the law as a lawful excuse for the violation of the defendant’s right to a speedy trial under the constitution as defined by the terms of the statute. Under the statute, the burden rests upon the State to show lawful excuse. State v. Bateham, 94 Or 524 , 186 P 5 . The very terms of the statute do not permit the making of an order governing the future; it provides for the determination of facts in retrospect. The right of the defendant to a dismissal accrues when the statutory time for trial has expired, and not before; it is at this time that *599 the trial court must determine whether or not there existed in the past good cause why the defendant was not given a speedy trial as prescribed.

A general order such as was issued in this case at the end of the January term that the court did not have time to dispose of such cases during that term, may be of some effect where the continuance is from the term in which the indictment is returned to the term immediately following, as such a continuance postpones the hearing only within the maximum terms of a speedy trial as provided by the statute, and the reasoning of the ease of State v. Abrams, 11 Or 169 , 8 P 327 , cited in the prevailing opinion, would apply. But in the matter before us, the continuance of the case was beyond the terms of the statute, and the trial court’s action on its own motion, in the absence of the defendant and her counsel, is to deny the defendant her constitutional and statutory right (for it is conceded that the defendant had a constitutional and statutory right to be tried at the April term of the court) without an opportunity to be heard.

The prevailing opinion and the specially concurring opinion by approving the action of the trial court and giving a legal status to a general order of continuance in criminal cases that will extend the time of trial beyond the terms of the statute, done in the absence of and without notice given to either the defendant or her counsel, entirely destroys the statute and sets a dangerous course. This, not because of the fact that a defendant is given the right to be present at every stage of the trial, but rather upon the proposition that the court cannot, by its actions in entering such an order, waive a defendant’s right to a speedy trial as defined by the statute (State v. Clark, 86 Or 464 , 168 P 944 ) without giving him an opportunity to *600 be heard in person or by counsel, because such action would be in direct violation of § 11, Art I of our Constitution. It is true that the setting of the time of trial, motions upon the law, and, ordinarily, continuances granted on application or motion before the impaneling of the jury, are not a part of the trial (State v. Moore, 124 Or 61, 66 , 262 P 859 ), and the presence of a defendant is not ordinarily required, the rights of a defendant being protected if his counsel alone is present. The rule that the defendant need not be present at all proceedings affecting his rights is based upon the proposition that when a question of law is being determined, not a question of fact, then he is relying solely upon the status of the law, a matter within the knowledge of his counsel, “for where no fact in pais is involved, and all is of law, there is nothing which a lay prisoner can do or suggest in the case; his interests are then wholly in the keeping of his counsel. ’ ’ 1 Bishop’s New Criminal Procedure, 2d ed, 235, § 269. But in this case the court, in violation of the defendant’s right to be represented by counsel at all stages of the proceedings, determined adversely to the defendant’s rights the question of fact, to-wit: that the court did not have time to dispose of this case within the time prescribed by statute. It is undeniable that this is a finding of fact that directly affected the constitutional and statutory right of the defendant.

The prevailing opinion admits that the order of the court is subject to attack, but sustains the decision of the trial court on the basis that the setting of civil cases on May 1, 1952, for a period of 71 days in advance [the defendant’s case had long been at issue and the State had requested a trial date within the term] and refusing to continue a civil ease so as to grant the defendant her constitutional and statutory *601 right to a ‘‘speedy trial”, constitutes “good cause”. The fallacy of this argument is quickly noted, for if such an excuse is “good cause”, then, wherever there is a congested civil docket, the trial court by setting civil cases in advance' of criminal cases may hold a defendant in prison on a nonbailable offense until released by death, and thus deny our own definition of a “ speedy trial ’ ’ under the constitution. ‘ ‘ A speedy trial is one conducted according to fixed rules, regulations, and proceedings of law free from vexatious, capricious, and oppressive delay created by the ministers of justice”. Johnston v. Circuit Court, Mult. Co., 140 Or 100, 103 , 12 P2d 1027 . [Italics added].

My reasons for adhering to the views of this court as expressed in our former opinion may be summarized by quoting an excerpt from State v. Kuhn, 154 Ind 450, 453, 57 NE 106, 107 , which reads as follows:

“# * * The question of discharge is not a matter of discretion with the court, beyond the bounds fixed by section 1853. When the prisoner brings his case within the limits of the statute, his right to a discharge becomes absolute. The courts seem united upon this point. In People v. Morino, 85 Cal. 515 , 24 Pac. 892 , under a similar statute, it is said: £A party charged with a crime has the constitutional right to a speedy trial, and the court has no discretionary power to deny him a right so important, or to prolong his imprisonment without such trial beyond the time provided by law. The statute is imperative. It was enough for the defendant to show that the time fixed by statute, after information filed, has expired, and that the case had not been postponed on his application.’ To the same effect, see In re McMicken, 39 Kan. 406 , 18 Pac. 473 ; Walker v. State, 89 Ga. 482 , 15 S.E. 553 ; In re Garvey, 7 Colo. 502 , 4 Pac. 758 ; Ochs v. People, 124 Ill. 399 , 16 N.E. 662 .

*602 “There is no pretense here that the case was postponed beyond three terms, or at any term, to procure the attendance of witnesses, and no claim that the evidence was not at all times available; but the appellant grounds its appeal upon the fact that there was not time sufficient at the November term to try the case, ‘on account of the crowded condition of the docket.’ The November term ran for 5 weeks,—30 judicial days. The evidence shows that 1 or 2 days were occupied with probate business, 9 or 10 days with the trial of prisoners in jail under criminal charges, and about 10 days in the trial of criminal cases against persons on bail, and that the balance of the term was occupied in the trial of civil causes.

a* * # # *

“In aid to the constitutional guaranty, it is made the duty of the trial judge to give preference to criminal over civil cases, and a failure of the judge to do so cannot be made to operate against the right of a defendant to trial within the limits of the statute.”

Rossman and Tooze, JJ., concur in this opinion.