Opinion
Submitted on motion to dismiss appeal November 6, 1945
Appeal dismissed December 12, 1945
Appeal from Circuit Court, Marion County, GEORGE R. DUNCAN, Judge.
Herbert Carter, of Salem, for the motion.
Miller B. Hayden, District Attorney, and Lawrence Osterman, Deputy District Attorney, both of Salem, opposed.
IN BANC.
Cornelius Price Long was convicted of the crime of escaping from a state institution and was thereafter charged with being an habitual criminal. The trial court held as a matter of law that the identity of the defendant had not been established. Thereafter the State filed its notice of appeal from "certain order and verdict" and "the whole thereof" and the defendant moved to dismiss the appeal.
APPEAL DISMISSED.
On March 6, 1945, the defendant was convicted of the crime of Escaping from a State Institution and was sentenced to serve a term in the penitentiary. On May 5, 1945, the District Attorney for Marion County filed an information charging that the defendant was an habitual criminal in that he had previously been convicted in this State of four felonies. On trial in this separate and supplemental proceeding, the court directed the jury to answer, in response to special interrogatories submitted, that the defendant was not the same person named in the records of previous convictions offered in evidence. In other words, the court held as a matter of law that the identity of the defendant had not been established. The record of appeal fails to disclose any judgment or order of dismissal based upon the directed verdict of the jury.
The State of Oregon filed its notice of appeal from that "certain order and verdict", and "the whole thereof" — rendered in the above cause. The defendant has moved to dismiss the appeal.
It is so well established in this jurisdiction, and elsewhere, that appeals are not permitted unless expressly authorized by statute that citation of authorities is deemed unnecessary. There is no statute authorizing an appeal by the State in this kind of proceeding. The charge of being an habitual criminal is a criminal proceeding and is a part of our Penal Code. §§ 26-2801 to 26-2804 O.C.L.A., inclusive. See State v. Durham, Post 574, 164 P.2d 448, involving same question, this day decided. Also see State v. Valdez, 48 Ariz. 145, 59 P.2d 328, wherein the court dismissed an attempted appeal by the State in an habitual criminal proceeding.
Appeal dismissed.