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a plea of former conviction or acquittal, in a case where a discretion is conferred upon the court as to the extent of the punishment, the court, upon the suggestion of either party that there are circumstances which may be properly taken into view, either in aggravation or mitigation of the punishment, may, in its discretion, hear the same summarily at a specified time, and upon such notice to the adverse party as it may direct. [L. 1864; D. Cd. § 184; D. & L. § 204; H. C. § 1403.]

After judgment has been rendered against a prisoner, and he has been committed thereunder, the court has no power, even during the same term, to revise such judgment and increase the sentence imposed: State v. Cannon, 11 Or. 312, 2 Pac. 191.

§ 1439. Testimony as to Circumstances, how Made.

The circumstances must be presented by the testimony of witnesses examined in open court, except that when a witness is so sick or infirm as to be unable to attend, his deposition may be taken out of court before such person authorized to take depositions, and at such time and place, and upon such notice to the adverse party, as the court may direct. [L. 1864; D. Cd. § 185; D. & L. § 205; H. C. § 1404.]

§ 1440. Defendant May be Examined, if He Consent.

If the defendant consent thereto, he may be examined as a witness in relation to such circumstances; but if he gives his testimony at his own. request, then he must submit to be examined generally by the adverse party. [L. 1864; D. Cd. § 186 ; D. & L. § 206; H. C. § 1405.]

§ 1441. No Other Testimony or Representation to be Received.

No affidavit or testimony or representation of any kind, verbal or written, can be offered to or received by the court in aggravation or mitigation of the punishment, except as provided in the last three sections; and a violation of this section may be punished as a contempt. [L. 1864; D. Cd. § 187 ; D. & L. § 207; H. C. § 1406.]

§ 1442. On Conviction of Two or More Crimes, Judgment of Imprisonment, how Given.

If the defendant is convicted of two or more crimes, before judgment on either, the judgment must be that the imprisonment upon any one may commence at the expiration of the imprisonment upon any other of such crimes; and if the defendant be in imprisonment upon a previous judgment on a conviction for a crime, the judgment must be that the imprisonment must commence at the expiration of the term limited by such previous judgment. [L. 1864; D. Cd. § 188; D. & L. § 208; H. C. § 1407.]

§ 1443. Judgment to Pay Fine, Duration of Imprisonment On.

A judgment that the defendant pay a fine must also direct that he be imprisoned in the county jail until the fine be satisfied, specifying the extent of the imprisonment, which can not exceed one day for every two dol

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lars of the fine; and in case the entry of judgment should omit to direct the imprisonment and the extent thereof, the judgment to pay the fine shall operate to authorize and require the imprisonment of the defendant until the fine is satisfied at the rate above mentioned. [L. 1864; D. Cd. § 189; D. & L. § 209; H. C. § 1408.]

The imprisonment authorized by this section is not a punishment for the crime, but simply a means of enforcing the payment of the fine for which it is a substitute: State v. Sheppard, 15 Or. 600, 16 Pac. 483.

Under § 2263, giving to a justice of the

peace the same power as to fines and im-
prisonment as is possessed by the circuit
courts, a justice may order a defendant
imprisoned if his fine be not paid: Ex parte
McGee, 33 Or. 167, 54 Pac. 1091; State v.
Sheppard, 15 Or. 598, 16 Pac. 483.

§ 1444. Judgment on Conviction, Entry Of.

When judgment upon a conviction is given, the clerk must enter the same in the journal, stating briefly the crime for which the conviction has been had; such entry may be made at any time during the term, as of the day's proceedings upon which the judgment was given. [L. 1864; D. Cd. § 190; D. & L. § 210; H. C. § 1409.]

§ 1445. Judgment to pay Money, to be Docketed, and Effect Thereof.

A judgment that the defendant pay money, either as a fine or as costs and disbursements of the action, or both, must be docketed as a judgment in a civil action and with like effect, as provided in section 205 of the code of civil procedure. [L. 1864; D. Cd. § 191; D. & L. § 211; H. C. § 1410.]

A judgment in a criminal action, so far as it regards the payment of money, whether the same be a fine, or the costs and disbursements of the action, or both, may be enforced as a judgment in a civil action: Whitley v. Murphy, 5 Or. 332, 20 Am. Rep. 741.

The lien which the state has upon the property of persons convicted of felonies,

for its costs in the criminal prosecution.
may be enforced by an execution issued
on the judgment of conviction, in any case
where the convict has not disposed of his
property between the date of the commis-
sion of the felony and the date of the
conviction. Where he has so disposed of
it, the lien must be enforced by a suit in
equity: State v. Munds, 7 Or. 81.

$1446. Name of Private Prosecutor to be Entered on Indictment.

The name of every person who voluntarily appears before any justice of the peace or grand jury to prosecute any person in a criminal action, either for a misdemeanor or felony, shall be indorsed upon the complaint, information, or indictment as private prosecutor; and if it shall be found by any justice or court trying said action or hearing said proceeding that the prosecution is malicious or without probable cause, said fact shall be entered upon record in said action or proceeding by said justice or court. [L. 1882, p. 13, § 1; H. C. § 1411.]

§ 1447. Judgment in Case the Prosecution is Malicious.

Upon making the entry prescribed in section 1446, the justice or court must immediately render judgment against the private prosecutor for the cost and disbursements of the action or proceeding, which may be enforced by execution, in the same manner as a judgment in a civil action. [L. 1882, p. 13, §2; H. C. § 1412.]

$ 1448. Judgment Roll, when and how Made.

Immediately after the entry of judgment, the clerk must prepare and annex together the following papers, which constitute the judgment roll:— 1. The indictment and demurrer, if there be one;

2. A copy of the journal entry of the plea, the trial and verdict, and of any order involving the merits and necessarily affecting the judgment; 3. A copy of the journal entry of the judgment;

4. The bill of exceptions, if there be one.

And in all cases the clerk must complete and indorse such judgment roll in the manner prescribed in subdivision 3 of section 208 of the code of civil procedure. [L. 1864; D. Cd. § 192 ; D. & L. § 212; H. C. § 1413.]

The record of the finding of the indictment is not a part of the transcript: State v. Reinhart, 26 Or. 471, 38 Pac. 822; State v. Abrams, 11 Or. 171, 8 Pac. 327.

$1449. Probationary Suspension of Judgment Against Infant Charged with Crime.

That final judgment against any minor under sixteen years of age may be suspended on any conviction, charge, or prosecution for misdemeanor or felony, where, in the opinion of the court in which such proceeding is pending, there is a reasonable ground to believe that such minor may be reformed, and that a commitment to prison would work manifest injury in the premises. Such suspension may be for as long a period as the circumstances of the case may seem to warrant, and subject to the following further provisions: during the period of such suspension, or of any extension thereof, the court or judge may, under such limitations as may seem advisable, commit such minor to the custody of the officers or managers of any strictly nonsectarian charitable corporation conducted for the purpose of reclaiming criminal minors. Such corporation, by its officers or managers, may accept the custody of such minor for a period of two months (to be further extended by the court or judge should it be deemed advisable), and should said minor be found incorrigible and incapable of reformation, he may be returned before the court for final judgment for his misdemeanor or felony. Such charitable corporation shall accept custody of said minor as aforesaid, upon the distinct agreement that it and its officers shall use all reasonable means to effect the reformation of such minor, and provide him with a home and instruction. No application for guardianship of such minor by any person, parent, or friend shall be entertained by any court during the period of such suspension and custody, save upon recommendation of the court before which the criminal proceedings are pending first obtained. [L. 1885, p. 124, § 1; H. C. § 1414.]

§ 1450. Compensation of the Institution Receiving such Infant.

Such court may further, in its discretion, in the order directing a suspension of final judgment and a commitment, in each case direct the payment to the corporation named in such order, out of the treasury of the county where such criminal proceeding is pending, by the treasurer thereof,

of the expenses of the maintenance of such minor named in said order, during such period of two months, not to exceed in the aggregate the sum of twenty-five dollars, which sum shall constitute a legal charge against and shall be paid by such county, out of the treasury thereof, by the treas urer of such county, upon the presentation to him in each case of the order of the court herein above mentioned; or said order may direct an action to be instituted by said corporation to recover the amount thereof out of the estate of such minor named therein, or from his parents, and such order shall be conclusive evidence of the right of such corporation to maintain the action. Such court may also revoke such order of suspension at any time: Provided, that such revocation shall not affect the right of the corporation named therein to receive or recover the amount thereof in any case where it has accepted and retained the custody of such minor for any period of time whatsoever, by virtue of such order. [L. 1885, p. 124, § 2; H. C. § 1415.]

§ 1451. Authority for the Execution of a Judgment, Except of Death.

When a judgment, except of death, has been pronounced, a certified copy of the entry thereof upon the journal must be forthwith furnished by the clerk to the officer whose duty it is to execute the judgment; and no other warrant or authority is necessary to justify or require its execution. [L. 1864; D. Cd. § 193; D. & L. § 213; H. C. § 1416.]

§ 1452. Judgment of Imprisonment, or for a Fine, how Executed.

When the judgment is imprisonment in the penitentiary, the sheriff must deliver the body of the defendant, together with a copy of the entry of judgment, to the keeper of such prison; and when the judgment is imprisonment in the county jail or a fine, and that the defendant be imprisoned until it be paid, the judgment must be executed by the sheriff of the county. [L. 1864; D. Cd. § 194; D. & L. § 214; H. C. § 1417.]

§ 1453. Court May Order Defendant Imprisoned in Jail of Another County. Whenever it shall appear to the court, at the time of giving judgment of imprisonment in the county jail, that there is no sufficient jail in the proper county suitable for the safe confinement of the defendant, the court may order the judgment to be executed in the jail of any county in the state, and the expense thereof shall be refunded to such county by the county in which the defendant should have been imprisoned. [L. 1864; D. Cd. § 195; D. & L. § 215; H. C. § 1418.]

§ 1454. Judgment of Imprisonment in County Jail, Where Executed.

Except as provided in the last section, a judgment of imprisonment in the county jail must be executed by confinement in the jail of the county where the judgment is given, unless where the place of trial has been changed, in which case the confinement must take place in the jail of the county where the action was commenced. [L. 1864; D. Cd. § 196; D. & L. § 216; H. C. § 1419.]

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$ 1455. Power of Sheriff to Require Assistance in Conveying Defendant to Prison.

The sheriff or his deputy, while conveying the defendant to the proper prison, in execution of a judgment of imprisonment, has the same authority to require the assistance of any inhabitant of this state, in securing the defendant, and in retaking him if he escape, as if the sheriff were in his own county; and every person who refuses or neglects to assist the sheriff, when so required, is punishable as if the sheriff were in his own county. [L. 1864; D. Cd. § 197; D. & L. §217; H. C. § 1420.]

§ 1456. Warrant to Enforce Judgment of Death.

When judgment of death is pronounced, a warrant signed by the judge of the court, and attested by the clerk with the seal of the court affixed, must be drawn and delivered to the sheriff of the county; the warrant shall state the conviction and judgment, and appoint a day on which the judgment is to be executed, which must not be less than thirty nor more than sixty days from the time of judgment. [L. 1864; D. Cd. § 198; D. & L. 218; H. C. § 1421.]

Where a judgment provided that a defendant be hanged at a date more than sixty days from the entry of such judgment, and the warrant of execution issued appointed a day within the sixty days, but on a day different from that recited in the judgment, it was held, that this was an irregularity, but not such as would warrant granting a new trial, and that the judgment should be modified so as to adjudge

in effect that defendant be detained until
such day as shall be named in the war-
rant of execution to be thereafter desig
nated by the court from which the appeal
was taken; that the first warrant be set
aside, and the case remanded, with direc-
tions to carry out the judgment of death
in accordance with the verdict of the jury:
State v. Marple, 15 Or. 205, 14 Pac. 521.

$ 1457. Death Sentence, How and Where Executed.

The punishment of death must be inflicted by hanging the defendant by the neck until he be dead, and the judgment must be executed by the sheriff, or his deputy, of the county in which it is given, unless where the place of trial has been changed, in which case it must be executed in the county where the action was commenced; and all executions shall take place within the inclosure of the jail or jail yard where the defendant is confined, and in the presence of twelve bona fide electors of the county, to be selected by the sheriff of said county; and the fact of faithful performance of the sheriff or his deputy in carrying out the sentence of the court shall be certified by the said twelve electors, and filed in the office of the county clerk. [L. 1864; D. Cd. § 199 ; D. & L. § 219; L. 1874, p. 115, §1; H. C. § 1422]

§ 1458. Warrant to Issue to Sheriff of County Where Action Commenced.

In case the place of trial has been changed, the death warrant provided for in section 1456 shall be directed to the sheriff of the county where the action was commenced, and the judge of the court, by an indorsement thereon, signed by him, and directed to the sheriff of the county where judg ment was given, shall require such sheriff to convey and deliver the defendant, together with the warrant, to the sheriff of the county where the

VOL. I.-37.

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