State v. Goldstein, 224 P. 1087

224 P. 1087 | Or. | 1924

MoBRIDE, C. J.

The first error alleged was the refusal of the court to dismiss the indictment for the reason that the case had not been brought to trial at the next term of court in which the indictment was found. This objection is predicated upon Section 1701, Or. L., which reads as follows:

“§1701. Dismissal of the Action When not Brought to Trial at Next Term After Indictment Found. 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.”

It appears from the record that at the close of the term of court in which defendants were indicted the court made an entry continuing all cases, civil and criminal, until the next term of court; stating as a reason that the criminal docket was so congested that it was impossible to try further cases at the instant term. That portion of the order which applies to the matter in controversy is as follows:

“Now at this time it is ordered by the court that all unfinished business, including all cases not tried and disposed of, * * be continued until the next regular term of court, because of the lack of time on the part of the court to hear and dispose of the same, and that the court stand adjourned without day.”

In the absence of any showing to the contrary, and there is none, we assume that this record, made by a court of general jurisdiction, is a verity; and such entry has been held to be sufficient: State v. Bertschinger, 93 Or. 404 (177 Pac. 63).

The next objection is that the court unlawfully admitted in evidence the goods alleged to have been stolen and other goods taken from other parties; the ground of this objection being that there was an unlawful seizure of the goods without a search-warrant. The officers, as they had a right to do under the ordinances of the city, entered the second-hand shop of the defendant Alex Goldstein, took possession of the goods, arrested the defendant and took him before the police court. There is a great deal of discussion going around-about what constitutes an unlawful search and seizure, but, as applied to a case of this kind, it is wholly irrelevant. Search of a person taken and of the place where he is captured for incriminating evidence are lawful incidents of an arrest and, even if the officers had seized the property without a search-warrant and unlawfully, it is clear from the testimony in this case that the goods so seized were stolen and not the property of the defendant; and the court, under such circumstances, will not turn aside and inquire into the manner in which the evidence was obtained. This case presents an entirely different proposition from those cases cited by counsel, where, in the absence of the defendant and without any search-warrant, his premises had been searched and his own books and papers seized for the purpose of being used in evidence against him; and even in these cases the courts have not been inclined to exclude the papers and property so seized from being used as evidence unless timely application for their return has been made before the trial, or, in one extreme case, at the trial where the defendant had no previous knowledge of their having been unlawfully taken. But the general rule is as before stated and is supported by the following, among other authorities: State v. Ware, 79 Or. 367 (154 Pac. 905, 155 Pac. 364); People v. Kalnin, 189 N. Y. Supp. 359; Smith v. Jerome, 47 Misc. Rep. 22 (93 N. Y. Supp. 202); Weeks v. United States, 232 U. S. 383 (Ann. Cas. 1915C, 1177, L. R. A. 1915B, 834, 58 L. Ed. 652, 34 Sup. Ct. Rep. 341, see, also, Rose’s U. S. Notes).

The application for the return of the goods was not made until the jury had been impaneled in the case, and under the circumstances, even if otherwise proper, it came too late, as the defendant was evidently aware of their seizure several weeks before the trial occurred.

The next assignments of error are directed to the refusal of the court to strike out the testimony of several witnesses who identified other goods stolen by the same parties and sold by them to this defendant. The two thieves who sold the goods to the defendant testified to having stolen these goods from the various parties who identified them, and to having sold them to Alex Goldstein under a general arrangement that he would take whatever they brought to him and act as a fence for them in case there was any trouble. While evidence of other crimes, as a rule, is not admissible, there is an exception in the case of persons indicted for receiving stolen property; the rule being that such testimony is admissible as bearing upon the question of intent in purchasing the property. This is especially true where the evidence tends to support the contention that there was a fixed plan to receive stolen property with knowledge that it had been feloniously obtained. See the following authorities: State v. Start, 65 Or. 178, 184 (132 Pac. 512, 46 L. R. A. (N. S.) 266); People v. Doty, 175 N. Y. 164 (67 N. E. 303); Copperman v. People, 56 N. Y. 591; State v. Feuerhaken, 96 Iowa, 299 (65 N. W. 299); State v. Ward, 49 Conn. 429; Shriedley v. State, 23 Ohio St. 130; Devoto v. Commonwealth, 3 Met. (Ky.) 417; State v. Habib, 18 R. I. 558 (30 Atl. 462); Harwell v. State, 22 Tex. App. 251 (2 S. W. 606); Kilrow v. Commonwealth, 89 Pa. St. 480.

Examining the whole case, we find no reversible error, and the conviction is therefore affirmed.

Affirmed. Rehearing Denied.

Bean and Brown, JJ., concur. McCourt, J., sat but took no part in the decision of this case.