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$ 1375. Issue of Fact, Definition Of.

An issue of fact arises,

1. Upon a plea of not guilty; or,

2. Upon a plea of a former conviction or acquittal of the same crime. [L. 1864; D. Cd. § 141; H. C. § 1340.]

Quaere: Whether, when a defendant former acquittal or conviction will support pleads not guilty, and also a former convic- a judgment of conviction: State v. Chil

tion or acquittal, a general verdict of ders, 32 Or. 128, 49 Pac. 801. guilty and a failure to find on the issue of

$ 1376. Issue of Law, Definition Of.

An issue of law arises upon a demurrer to the indictment. [L. 1864; D. Cd. § 142 ; H. C. § 1341.]

§ 1377. Issue of Law or Fact, How Tried.

An issue of law must be tried by the court, and an issue of fact by a jury, of the county in which the action is triable. [L. 1864; D. Cd. § 143; H. C. § 1342.]

§ 1378. Defendant, When Must Appear in Person on Trial.

If the indictment be for a misdemeanor, the trial may be had in the absence of the defendant, if he appear by counsel; but if it be for a felony, he must be present in person. [L. 1864; D. Cd. § 144; H. C. § 1343.]

Setting the time for defendant's trial receive the verdict in his absence: State during his absence is not error: State v. v. Spores, 4 Or. 198. Abrams, 11 Or. 169, 8 Pac. 327.

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Where there is no apparent necessity for so doing, it is held to be error to keep the prisoner in fetters during his trial: State v. Smith, 11 Or. 205, 8 Pac. 343.

§ 1379. Postponement of Trial, When and How Allowed.

When an indictment is at issue upon a question of fact, and before the same is called for trial, the court may, upon sufficient cause shown by the affidavit of the defendant, or the statement of the district attorney, direct the trial to be postponed to another day in the same term, or to another term; and all affidavits and papers read on either side upon the application. must be first filed with the clerk. [L. 1864; D. Cd. § 145; H. C. § 1344.]

A motion for a continuance is addressed to the sound discretion of the court, and the decision thereon will only be reviewed for abuse: State v. O'Neil, 13 Or. 183, 9 Pac. 284; State v. Hawkins, 18 Or. 478, 23 Pac. 475; State v. Fiester, 32 Or. 260, 50 Pac. 561; State v. Howe, 27 Or. 146.

Where it does not appear what certain absent witnesses were expected to prove, or that their testimony would be material if produced, it was not an abuse of discretion for the court to refuse to postpone

the trial until these witnesses could be obtained: State v. Wong Gee, 35 Or. 275, 57 Pac. 914.

Refusal to grant a continuance to procure a witness who had been subpoenaed. but who had a few minutes before gone from the courtroom, is not error, where no application was made for the arrest of the witness on account of his absence: State v. Birchard, 35 Or. 495. 59 Pac. 468.

An affidavit for continuance on the ground of the absence of a witness is not

sufficient, which simply states a belief that the attendance of such witness can be procured at the next term, but the facts and circumstances upon which such belief is founded must be set out: State V. O'Neil, 13 Or. 185, 9 Pac. 284.

§ 1380.

Where a witness has no fixed residence a clear showing should be made of the circumstances tending to prove the probability of obtaining his evidence: State v. Leonard, 3 Or. 157.

Postponement Refused Unless Party Consents to Take Deposition. When an application is made for the postponement of a trial, the court may, in its discretion and in the furtherance of justice, require as a con dition precedent to granting the same, that the party applying therefor consent that the deposition of a witness or witnesses may be taken and read on the trial of the case, and unless such consent be given, may refuse to allow such postponement for any cause. [L. 1864; D. Cd. § 146; H. C. § 1345.]

Where a defendant has obtained a continuance on the condition that he permit the deposition of a witness to be taken, he is not deprived of his constitutional right of meeting the witnesses face to face. That right simply secures to him the right

§ 1381. Order for Taking Deposition.

at some stage of the proceedings to be confronted with the witness, and be given an opportunity to cross-examine. Such testimony need not necessarily be given in the presence of the jury: State v. Bowker, 26 Or. 313, 38 Pac. 124.

When such consent is given, the court must make an order appointing some proper time and place for taking the deposition of such witness, either by the judge thereof or before some suitable person to be named therein, as commissioner, and upon either written or oral interrogatories. [L. 1864; D. Cd. §14%; H. C. § 1346.]

§ 1382. Deposition to be Filed, and When May be Read.

Upon the making of the order provided in the last section, the deposition must be taken and filed in court, and may be read on the trial of the case, in like manner and with like effect and subject to the same objections as in civil cases. [L. 1864; D. Cd. § 148; H. C. § 1347.]

§ 1383. Indictment Discharged for Want of Prosecution, When.

If, when the indictment is called for trial, the defendant appear for trial, and the district attorney is not ready and does not show any sufficient cause for postponing the trial, the court must order the indictment to be discharged, unless, being of opinion that the public interests require the indictment to be retained for trial, it direct it to be so retained. [L. 1864; D. Cd. § 149 ; H. C. § 1348.]

§ 1384. Effect of Discharge, When Not a Bar When Equivalent to Acquittal. If the court order the indictment to be discharged, the order is not a bar to another action for the same crime, unless the court so direct; and if the court so direct, judgment of acquittal must be entered. [L. 1864; J. Cd. § 150; H. C. § 1349.]

§ 1385. Proceeding on Discharge as to Custody and Bail.

If, upon the discharge of the indictment, the court give a judgment

of acquittal, the same proceedings must be had thereon, in relation to the custody of the defendant, his bail, or money deposited in lieu thereof, as are prescribed in section 1362. [L. 1864; D. Cd. § 151; H. C. § 1350.]

§ 1386. Trial Jury, How Formed.

In criminal actions, the trial jury is formed in the manner prescribed in chapter II of title II of the code of civil procedure, except as otherwise expressly provided in this chapter. [L. 1864; D. Cd. § 152; H. C. § 1351.]

§ 1387. Challenge for Implied Bias, for What May be Taken.

A challenge for implied bias may be taken for any of the following causes, and for no other:

1. Consanguinity or affinity, within the fourth degree, to the person alleged to be injured by the crime charged in the indictment, or the person indorsed thereon as the prosecutor, or to the defendant;

2. Standing in the relation of guardian and ward, attorney and client, master and servant, or landlord and tenant, with the defendant, or the person alleged to be injured by the crime charged in the indictment, or indorsed thereon as prosecutor, or being a member of the family, a partner in business with, or in the employment on wages for either of such persons, or being surety or bail in the action or otherwise for the defendant;

3. Having served on the grand jury which found the indictment, or on a coroner's jury which inquired into the death of a person whose death is the subject of the indictment;

4. Having been one of a jury formerly sworn in the same action, and whose verdict was set aside, or which was discharged without a verdict, after the cause was submitted to it;

5. Having served as a juror in a civil action, suit, or proceeding brought against the defendant for substantially the same act charged as a crime;

6. If the offense charged be punishable with death, the entertaining of such conscientious opinions as would preclude a person from finding the defendant guilty; in which case he shall neither be permitted nor compelled to serve as a juror. [L. 1864; D. Cd. § 153; H. C. § 1352.]

§ 1388. Challenges, Several Defendants, Either May Challenge, but can not Sever Therein.

All challenges, whether peremptory or for cause, may be taken by the state or defendant, but when several defendants are tried together, they can not sever their challenges, but must join therein. [L. 1864; D. Cd. § 154; H. C. § 1353.]

§ 1389. Peremptory Challenges, Number Of.

If the crime charged in the indictment be punishable with death or imprisonment in the penitentiary for life, the defendant shall be entitled to twelve and the state to six peremptory challenges, and no more; and if

the crime be punishable otherwise, the defendant shall be entitled to six and the state to only three such challenges. [L. 1864; D. Cd. § 155; L. 1865, p. 23, § 3; H. C. § 1354.]

See note to § 122, ante.

§ 1390. Provisions not Applicable in Criminal Actions.

Sections 122 and 125 of the code of civil procedure shall not apply to the formation of the trial jury in criminal actions. [L. 1864; D. Cd. § 156; H. C. § 1355.]

§ 1391. Conduct of Trial.

Chapter III of title II of the code of civil procedure shall apply to and regulate the conduct of the trial of criminal actions. [L. 1864; D. Cd. § 157; H. C. § 1356.]

§ 1392. Presumption of Innocence.

A defendant in a criminal action is presumed to be innocent until the contrary be proven; and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to be acquitted. [L. 1864; D. Cd. § 203; D. & L. § 158; H. C. § 1357.]

As to presumption of innocence, see § 788, ante, and note.

As to definitions and instructions upon reasonable doubt, see State v. Glass, 5 Or. 73; State v. Ah Lee, 7 Or. 237; State v.

$1393. Insanity Must be Proven.

Conally, 3 Or. 73; State v. Morey, 25 Or. 255, 35 Pac. 655; State v. Roberts, 15 Or. 187, 13 Pac. 896; State v. Ching Ling, 16 Or. 427, 18 Pac. 844.

When the commission of the act charged as a crime is proven, and the defense sought to be established is the insanity of the defendant, the same must be proven beyond a reasonable doubt; and no act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his having been in such condition; but whenever the actual existence of any particular motive, purpose, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the defendant was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act. [L. 1864; D. Cd. § 204; D. & L. § 159; H. C. § 1358.]

Drunkenness does not excuse the defendant in a criminal action, but may be considered by the jury in determining the purpose, motive or intent with which he committed the crime, in order to fix the degree of his guilt: State v. Zorn, 22 Or. 600, 30 Pac. 317.

Where the existence of a particular motive, purpose, or intent is necessary to constitute a particular species or degree of crime, and intoxication is an element of the defense, the intent is the test of criminal liability, regardless of motive or purpose: State v. Hansen, 25 Or. 405, 35 Pac. 976.

The omission of the word "intent" in a charge otherwise substantially in the language of the statute. is not reversible error, where the defendant was charged with assault with intent to kill, and was convicted only of assault with a deadly weapon; a conviction of such degree eliminating the

VOL. I.-36.

question of intent to kill: State v. Lavery, 35 Or. 408, 58 Pac. 107.

In determining whether a killing was done with deliberation or premeditation the jury may consider voluntary intoxication of defendant in connection with the facts generally, but voluntarily intoxication can not reduce a killing to manslaughter: State v. Weaver. 35 Or. 417, 58 Pac. 109.

The defense of insanity must fail, if it appear that the accused had reason sufficient to enable him to distinguish right and wrong, and it appear that he knew the act was wrong and criminal, and that he would suffer punishment therefor: State v. Murray, 11 Ór. 413, 5 Pac. 55.

Where a defense is insanity, the burden of proof is always with the defendant to establish such insanity: State v. Hansen, 25 Or. 411, 35 Pac. 976, 36 Pac. 296.

When the jury finds on a defense of insanity, its findings can not be disturbed: State v. Hansen, 25 Or. 410, 35 Pac. 976.

§ 1394. In Case of Doubt, Conviction for Lowest Degree.

When it appears that the defendant has committed a crime, and there is reasonable ground of doubt in which of two or more degrees he is guilty, he can be convicted of the lowest of those degrees only. [L. 1864; D. Cd. § 205; D. & L. § 160; H. C. § 1359.]

A person charged with murder in the first degree may be convicted under such indictment of murder in the second degree, or of manslaughter. On the trial of such case, the degree of guilt as well as the guilt itself should be left to the determination of the jury, and not assumed by the court: State v. Grant, 7 Or. 422.

It is the duty of the trial court to instruct the jury in a criminal prosecution where the offense charged necessarily includes a lesser offense, that they have the right to find the accused guilty of the latter where there is a doubt of his guilt of the former, and where it appears from the record that the instruction was not given in such a case, it is held to be error which the accused could take advantage of upon appeal without having interposed an exception. Such an instruction is the duty of the trial court of its own motion, and

the defendant does not waive his objection by failing to call the court's attention to it at the time: State v. Cody, 18 Or. 519, 23 Pac. 891.

Defendant may be convicted of petty larceny under an indictment for larceny from a store, where the value of the property is alleged, and under such circumstances it is the duty of the court to instruct the jury to that effect: State v. Hanlon, 32 Or. 102, 48 Pac. 353.

One charged with murder in the first degree by poisoning is not entitled as a matter of law to have the jury instructed to convict as charged or acquit. If there is any evidence tending to raise a doubt as to the intent with which the act was committed, the conviction should be for the lower degree only, and evidence of good reputation is sufficient for that purpose: State v. Ellsworth, 30 Or. 161, 47 Pac. 199.

§ 1395. Separate Trials, Defendants Entitled to, When.

When two or more defendants are jointly indicted for a felony, any defendant requiring it must be tried separately; but in other cases, defendants jointly indicted may be tried separately or jointly, in the discretion of the court. [L. 1864; D. Cd. § 206; D. & L. § 161; H. C. § 1360.]

§ 1396. Discharge of One Defendant for Witness, when Ordered.

When two or more persons are charged in the same indictment, the court may, at any time before the defendant has gone into his defense, on the application of the district attorney, direct any defendant to be discharged from the indictment, so that he may be a witness for the state. D. Cd. § 207 ; D. & L. § 162 ; H. C. § 1361.]

One who is jointly indicted with the defendant on trial, but who has entered a plea of guilty, is a competent witness for the state, nor is he rendered incompetent by promise of a mitigation of his punishment, or a pardon; such fact affects merely

[L. 1864;

the weight of his testimony: State v. Magone, 32 Or. 206, 51 Pac. 453.

An objection that a codefendant is not a competent witness is waived unless made at the trial; it can not be urged for the first time on appeal: State v. Steeves, 29 Or. 98, 43 Pac. 947.

§ 1397. Discharge of a Defendant to Testify for Codefendant, when Ordered. When two or more persons are charged in the same indictment, and the court is of opinion that, in regard to a particular defendant, there is not sufficient evidence to put him on his defense, it must, if requested by another defendant then on trial, order him to be discharged from the indictment, before the evidence is closed, that he may be a witness for his codefendant. {L. 1864; D. Cd. § 208; D. & L. §163; H. C. § 1362.]

Where several are jointly indicted, one is not a competent witness for the other until acquitted, or convicted, or discharged, under this section: Latshaw v. Territory, 1 Or. 141.

§ 1398. Effect of Such Discharge, and Order Therefor.

The order provided for in the last two sections, when made, must state

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