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(193 P.)

EMERSON v. STATE. (No. A-3615.) (Criminal Court of Appeals of Oklahoma. Dec. 11, 1920.)

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The evidence shows that the defendant Emerson, a colored man, conducted a store at the town of Iconium; the complaining witness Hardemon lived nearby; that the difficulty arose in front of the defendant's store, and in the struggle the defendant was shot in the hand. There is a direct conflict in the testimony as to who was the aggressor. The complaining witness testified that the defendant without provocation drew his revolver and shot at him; that during the struggle other shots were fired.

As a witness in his own behalf, the defendant testified that Hardemon, the complaining witness, was the aggressor at all times, and in the struggle shot the defendant through the hand.

In rebuttal the state called Ed. Robertson, sheriff of Logan county, as a witness, who testified that he remembered the occasion when the defendant was charged with having received stolen property, and that witness found said stolen property at the defendant's store in Iconium. This evidence was all admitted against the defendant's objection and exception.

The Attorney General has filed a confession of error, which concludes as follows:

"We cannot help but feel that the admission of this testimony was prejudicial error. The sole and only purpose of the testimony could have been to affect the credibility of plaintiff in error.

It

"It was not proper rebuttal testimony. did not tend to prove or disprove any issue in the case, and it was incompetent upon any theory.

"Considering the closeness of the testimony, we feel that an injustice was done plaintiff in error by the admission of this testimony, and that the judgment of the trial court should be reversed."

Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish a common scheme or plan, embracing the commission of two or more crimes so related to

each other that proof of one tends to establish the other, or to connect the defendant

with the commission of the crime charged. Koontz v. State, 10 Okl. Cr. 553, 139 Pac. 842, Ann. Cas. 1916A, 689.

As a general rule, subject to exceptions, when a defendant is on trial for a crime, his participation in the commission of another crime wholly unconnected with that for which he is on trial cannot be admitted in evidence against him, and the evidence here admitted against defendant's objection and exception does not fall within any exception to the general rule.

For the error noted, the judgment is reversed, and a new trial awarded.

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2. Criminal law 1079, 1081-Notice of appeal or summons in error must be served.

Within the time allowed for taking the appeal, notices of appeal must be served upon the clerk of the trial court and the county attorney (as provided in section 5992, Rev. Laws 1910), or else summons in error must be served upon the Attorney General, or its issuance and service waived by said officer (as provided in section 5997, Rev. Laws 1910), before this court can acquire jurisdiction of an appeal in a criminal cause.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

186 Pac.

Appeal from District Court, Oklahoma | jurisdiction of an appeal in a criminal cause. County; Frank Matthews, Judge. Mann v. State, 16 Okl. Cr. 1098; Robinson v. State, 17 Okl. Cr.

E. S. Sarten was convicted of the crime of maintaining a gambling nuisance and sentenced to pay a fine of $500, and he appeals. Appeal dismissed, and cause remanded with direction to enforce the judgment.

A. F. Decker, of Oklahoma City, for plaintiff in error.

The Attorney General, for the State.

PER CURIAM. This is an attempted appeal from the district court of Oklahoma county, from a judgment rendered in said court on the 17th day of November, 1917, against defendant, E. S. Sarten, on a verdict finding defendant guilty of maintaining a gambling nuisance; the court assessing the punishment at a fine of $500.

Pac. 763.

189

For reasons stated, the appeal is dismissed, and the cause remanded to the trial court, with directions to enforce the judgment. Mandate forthwith.

SMITH et al. v. STATE. (No. A-3633.) (Criminal, Court of Appeals of Oklahoma. Dec. 6, 1920.)

(Syllabus by the Court.) Criminal law 1086 (13)-Where transcript of case-made contains no copy of judgment, the appeal will be dismissed.

Petition in error with transcript of the record attached, and a purported case-made When an appeal is taken from an alleged (which had never been attested by the clerk judgment of conviction and the transcript of the record or case-made contains no copy of the and filed with the papers in the case in the judgment of the trial court, this court does not office of the clerk of the trial court, as re-acquire jurisdiction of the appeal, and such an quired by section 5242, Revised Laws 1910), appeal will be dismissed. were filed in this court on the 27th day of May, 1918. The conviction in this case was for a felony.

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The judgment having been rendered on the 17th day of November, 1917, and the attempted appeal not having been lodged in this court until the 27th day of May, 1918, more than six months thereafter, this court never acquired jurisdiction thereof. Bethel v. State, 7 Okl. Cr. 36, 121 Pac. 792; Musick v. State, 5 Okl. Cr. 608, 115 Pac. 377; Self v. State, 8 Okl. Cr. 70, 126 Pac. 582.

[2] The record filed in this court also fails to disclose that plaintiff in error, within the time allowed for taking the appeal, served any notices of appeal either upon the clerk of the trial court or the county attorney of Oklahoma county, as provided in section 5992, Revised Laws 1910; nor does it appear that any summons in error was ever issued in behalf of plaintiff in error and served upon the Attorney General, or that there was any waiver of the issuance and service of a summons in error by such officer, as provided by section 5997, Revised Laws 1910.

Appeal from Superior Court, Tulsa County; L. J. Martin, Judge.

W. N. Smith and another were convicted of contempt, and they appeal. Appeal dismissed.

E. I. Saddler, of Tulsa, and Brown & Stewart, of Muskogee, for plaintiffs in error. The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.

PER CURIAM. The plaintiffs in error were convicted in the superior court of Tulsa county. An appeal was attempted to be taken by filing in this court on September 23, 1919, a petition in error with case-made. No briefs have been filed. When the case was called for final submission, no appearance was made on behalf of the plaintiffs in error. Thereupon the Attorney General moved to dismiss the appeal for failure to prosecute the same.

An examination of the record discloses that the case-made contains no copy of the judgment referred to in the petition in error and does not contain the journal entry of the judgment and sentence appealed from.

When an appeal is taken from an alleged judgment of conviction and the transcript of the record or case-made contains no copy of the judgment of conviction, such record or case-made presents no question to this court for its determination, and the appeal will be dismissed for want of jurisdiction. Harfoe v. State, 14 Okl. Cr. 187, 169 Pac. 659.

Either the method provided in section 5992, supra, must be followed, or else summons in error must be served upon the Attorney General, or its issuance and service waived by said officer, as provided in section 5997, supra, before this court can acquire missed.

For the reason stated, the cause is dis

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(193 P.)

DAVIS v. STATE. (No. A-3473.) (Criminal Court of Appeals of Oklahoma. Dec. 11, 1920.)

(Syllabus by the Court.)

1. Receiving stolen goods 8(1)-State must show guilty knowledge that goods were stolen. In order to establish the crime of receiving stolen property, it is essential that the state, either by direct or circumstantial evidence, prove guilty knowledge on the part of defendant at the time he received such property that the same was stolen.

2. Receiving stolen goods 8(4) Circumstantial evidence to show guilty knowledge must conclusively point to guilt.

Where the state relies wholly on circumstantial evidence to prove guilty knowledge, the circumstances relied upon, when considered together, must point clearly and conclusively to the guilt of defendant and exclude every reasonable hypothesis other than that of guilt.

3. Criminal law 560-Reversal where material element of offense rests on evidence creating only suspicions of guilt.

The appellate court cannot safely permit a judgment of conviction to stand unreversed, where one material element of the offense rests alone upon evidence which amounts merely to suppositions or suspicions of guilt.

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The court has carefully examined the transcript of the evidence in this case, and the conclusion is reached that the confession of error by the Attorney General is well founded.

[1] In order to establish the crime of receiving stolen property, it is essential that the state, by either direct or circumstantial evidence, prove guilty knowledge on the part of defendant, at the time he received such property, that the same was stolen. 17 R. C. L. 85.

The state's case in chief wholly fails to establish any such guilty knowledge on the part of defendant. All that was proved on the part of the state was that the car was stolen, as alleged in the information, and that the same was found in the possession of defendant some 10 days thereafter. The evidence on the part of the state discloses that, on the day after the car was stolen, a person

Appeal from Superior Court, Creek Coun- other than defendant or the true owner was ty; Gaylord R. Wilcox, Judge..

Charles Davis was convicted of the crime of receiving stolen property, and he appeals. Reversed and cause remanded for a new trial.

in possession thereof, and made some repairs or alterations on the car; but the state's evidence fails in any way to connect defendant with such person who was presumably the thief. The state's evidence further discloses that defendant was found in the possession

L. J. Marks, of Ranger, Tex., and Cress & of the car at Topeka, Kan., where he was arSt. Clair, of Perry, for plaintiff in error.

S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.

MATSON, J. Charles Davis was convicted of the crime of receiving stolen property in the superior court of Creek county, and sentenced to serve a term of one year's imprisonment in the state penitentiary. From a judgment of conviction rendered against him on the 16th day of May, 1918, defendant has appealed to this court, and in his petition in error assigns several grounds of alleged error for reversal of said judgment, mainly relying upon the insufficiency of the evidence to sustain the conviction.

The defendant was convicted of buying and receiving a certain Ford automobile, of the value of $300, which had previously been stolen in Lincoln county, Okl., from one Bryan Robinson; defendant knowing at the time he purchased and received said automobile that the same had been stolen.

The Attorney General has filed a confession in error, the substance of which is as follows:

rested, waived a requisition, and drove the car back with certain officers of Washington county, Okl., to the city of Bartlesville, Okl., where the car was afterwards identified by Bryan Robinson and returned to him.

The defendant took the witness stand in his own behalf, and the evidence is undisputed that defendant purchased the car in the town of Oilton, Okl., at least 10 days after the same was proven to have been stolen; that the purchase was made in a public street in the town of Oilton from a person who gave his name as George Miller, and who said that he was expecting to have to join the army and would have no further use for the car and wanted to return before joining the army to visit his relatives in the state of Pennsylvania; that, after having agreed upon $350 as the purchase price for said car, defendant and the said Miller drove the car to defendant's residence in the south part of Drumright, Okl., where defendant procured additional money with which to pay for same and then proceeded to the office of a justice of the peace in the city of Drumright, where the said justice, at the re

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quest of defendant, indited a bill of sale for [ [2] In this case, the state relied wholly on said car, which was duly signed and wit- circumstantial evidence to prove guilty nessed in the presence of said justice, and knowledge on the part of defendant, and it is certain money was paid by defendant to the a well-established rule of law that, where said Miller in the presence of the justice; circumstantial evidence alone is relied upon, that, after purchasing the car, defendant the circumstances when considered together drove it to his home, and there kept it for a must point clearly and conclusively to the period of 2 or 3 days in full view of the pub- guilt of defendant and exclude every realic highway, and during that time defend- sonable hypothesis other than that of guilt. ant drove said car upon the public streets of Sies v. State, 6 Okl. Cr. 142, 117 Pac. 504; Drumright, and made no effort whatever to Nash v. State, 8 Okl. Cr. 1, 126 Pac. 260. conceal same; that, on the Monday following Friday on which defendant purchased said alleged stolen car, defendant and his wife started on a trip to Emmett, Kan., to visit some relatives of his wife, and in going to said place defendant drove over the public highways of the states of Oklahoma and Kansas, until he reached the city of Topeka where he stopped to spend a short time with his wife's brother, and where he was arrested and the car taken from him. Defendant testified that he did not know the car had been stolen; that he paid $350 therefor, which was all the car was worth; and that there was no conduct on the part of the said Miller which led defendant to believe that at the time he purchased said car the same had been previously stolen.

The cross-examination of defendant elicited certain suspicious circumstances showing that, had defendant made a more thorough examination into the ownership of the car, he could have in time discovered, perhaps, that the person who gave his name as Miller was not the true owner of the car.

[3] In this case, the inferences properly arising from defendant's lack of precaution in investigating whether or not the seller was the true owner of the car, considered together with defendant's conduct immediately after he purchased the car, cannot be said to point unerringly and conclusively to the guilt of defendant and to exclude every other reasonable hypothesis than that of guilt; and for such reasons it is the opinion of this court that the state has failed to establish guilty knowledge on the part of defendant by evidence sufficient to sustain the verdict and judgment.

This case was not tried as closely as it should have been on the part of the state. Apparently, other witnesses were available to the prosecution had their attendance been sought, who, perhaps, were in possession of evidence which, if defendant is guilty of the crime charged, could more clearly establish that fact. For such reason, it is the opinion of this court that this cause should not be dismissed, but that the judgment should be reversed and the cause remanded to the trial court, with directions to grant defendant a new trial, upon which trial the state may be in position to produce other evidence than that adduced at this trial, such as will fully meet the requirements of law regarding circumstantial evidence and establish the element of guilty knowledge on the part of defendant to that extent required by the law. This court cannot safely permit a judgment of conviction to stand unreversed, where one material element of the offense rests alone

However, the court does not deem the inferences alone arising from lack of precaution to determine ownership sufficient by themselves to establish guilty knowledge on defendant's part at the time the car was received by him. In purchasing and taking possession of the car in question, defendant acted openly and publicly, without any attempt at concealment, so far as this record discloses, and there is no fact or circumstance, other than inferences arising from such lack of precaution, shown which in any way directly tends to establish that defend-upon evidence which amounts merely to supant knew at the time that he was purchasing a stolen car. It is incumbent upon the state to prove every essential element of the crime by evidence beyond a reasonable doubt, and a conviction based upon circumstances which raise merely suspicions of guilt should not be allowed to stand.

positions or suspicions of guilt.

Judgment reversed, and the cause remanded for a new trial.

DOYLE, P. J., and ARMSTRONG, J., con

cur.

(98 Or. 490)

NEALAN v. RING.

(193 P.)

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this had been done, until he saw the opinion of Mr. Justice Burnett in this case. He now asks leave to have the case reheard upon the merits.

This application comes too late. Had it been made before the hearing, we would have been inclined to permit the transcript to be amended; but to allow a party after having tried his case upon the transcript he has presented, and after defeat, to procure an amendment of it and a rehearing upon the transcript as amended, would lead to intolerable delays in the administration of justice. This is especially the case in instances like the present, where the defect was pointed out brief the following: in the respondent's brief. We quote from that

"There is another feature in this case, that we are to presume that the transcript contains all of the evidence and exhibits. There was no official reporter appointed by the court to rethe same does not bear the file mark of the

W. C. Winslow, of Salem, and V. A. port or transcribe the evidence in the case and Goode, of Stayton, for appellant.

Weatherford & Wyatt, of Albany, for re- clerk of the court, nor is it identified in his cerspondent.

tificate or by the certificate of the trial judge."

This brief was filed November 8, 1919, and the hearing was had on October 6, 1920, so that appellant had nearly a year prior to the hearing in which to procure the certificate of the trial judge, had he deemed it material

MCBRIDE, J. This cause was argued and submitted on October 6, 1920, and an opinion written by Mr. Justice Burnett affirming the decree of the circuit court was handed down on November 9, 1920. In that opinion we declined to consider the testimony in the case for the reason that such testimony had not been filed with the clerk of the circuit court or authenticated by the circuit judge as required by law. After this opinion had been rendered, the appellant procured the transcript of testimony to be certified by the circuit judge, and now moves for a rehearing on the merits. The affidavit of one of appellant's attorneys is substantially to the effect that he seasonably had the testimony extended and showed it to the attorneys for respondent, who assented to its accuracy; that he has no knowledge or recollection as to how it found its way into the office of the clerk of the circuit court; and that the failure to have it certified was due to the excusable oversight of appellant's attorney, who supposed that JOHNS, JJ., concur.

Neither the affidavit nor the transcript of testimony shows any such controlling equities as should induce this court to disregard the salutary rule announced in State v. Jennings, 48 Or. 483, 494, 87 Pac. 524, 89 Pac. 421, which is substantially to the effect that amendments to the transcript will not be permitted after a cause has been argued and submitted and an opinion handed down. See also, McCann v. | Burns, 73 Or. 167, 172, 136 Pac. 659, 143 Pac 916, 1099, 1100; Noble v. Watrous, 84 Or. 418, 426, 163 Pac. 310, 165 Pac. 349; Malloy v. Marshall-Wells Hardware Co., 90 Or. 303, 359, 173 Pac, 267, 175 Pac. 659, 176 Pac. 589. The petition for rehearing is denied.

BURNETT, C. J., and HARRIS

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