State v. Hanlon

• Decision Date: 05 April 1897
• Citation: 32 Or. 95,48 P. 353
• Parties: STATE v. HANLON.
• Court: Oregon Supreme Court

48 P. 353

32 Or. 95

STATE v. HANLON.

Supreme Court of Oregon

April 5, 1897

Appeal from circuit court, Multnomah county; T.A. Stephens, Judge.

George Hanlon was convicted of larceny in a shop, and appeals. Reversed.

John L. McGinn and John F. Logan, for appellant.

C.M Idleman, Atty. Gen., W.T. Hume, Dist. Atty., and D.J Malarkey, for the State.

MOORE C.J.

The defendant, George Hanlon, having been indicted, tried, and convicted of the crime of larceny in a shop by stealing a watch therefrom, was sentenced to imprisonment in the penitentiary for the term of four years, from which judgment he appeals, assigning as error of the trial court its failure to charge the jury as requested. At the threshold of this cause we are confronted with a motion to dismiss the appeal counsel for the state contending that the notice thereof does not identify the judgment complained of, and therefore no jurisdiction is conferred by its service. The transcript containing a copy of this process, has the following recital: "And afterwards, on the 22d day of September, 1894, the defendant filed his notice of appeal in words and figures as follows: 'To W.T. Hume, district attorney of the Fourth judicial district, and attorney for the state of Oregon, in the above-entitled criminal action, and to Dan J. Moore, clerk of the above- entitled court: Notice is hereby given that the above-named defendant, George Hanlon, appeals to the supreme court of Oregon from the proceedings and judgment had in the above-entitled criminal action, and from the sentence therein pronounced against him; said sentence being that said George Hanlon be confined in the penitentiary of the state of Oregon for the period of four years. McGinn & Logan, attorneys for defendant.' " A summary of the objections urged against this notice is as follows: (1) There are no parties named in the notice of appeal; (2) the notice does not specify the county from which the appeal is taken; (3) it does not designate the time when the judgment was rendered; and (4) it does not show that any court having jurisdiction of the cause or person pronounced the judgment. The title of the court and cause is stated in the first paper set out in the transcript, and a comparison of the foregoing notice of appeal with the form prescribed in rule 2 of this court (see Rules of the Supreme Court, 24 Or. 591, 37 P. vi.) shows that the manner of setting out a copy of this process has been strictly followed. In a note to said rule 2 it is said: "The title of the court and cause, unless otherwise directed, may be omitted from all papers except the first paper in the cause, but the word 'title' shall be used, the character of the paper, whether complaint, summons, answer, etc., shall be designated." The word "title" does not immediately precede the notice of appeal, to show its omission therefrom, but it is manifest that this is a mere clerical error in making up the transcript, and that the title of the court and cause is understood to be prefixed to every separate paper, a copy of which is set out in the record, and that the notice of appeal showed the court in which, and the party against whom, the judgment was rendered. The rule above referred to was framed with a view to saving expense to parties litigant in the preparation of transcripts on appeal, and the note thereto from which the extract is taken amounts to a suggestion only in explanation of the rule; but, if the note had the effect of a positive enactment on the subject, the alleged error in the record would not be fatal to the appeal, because it could be rectified by obtaining from the clerk of the trial court a certified copy of the notice of appeal, which, in our judgment, would clearly show that the title of the court and cause was prefixed to the process relied upon to give this court jurisdiction. Believing, as we do, that the omission of the word "title," preceding the notice of appeal, in the record, was immaterial, this disposes of all the objections to this part of the transcript except that the notice of appeal does not designate the time when the judgment was rendered. If the notice of appeal informs the adverse party that a party to the judgment intends to appeal therefrom to the supreme court, and is so specific in its description of the judgment complained of as to acquaint a stranger to the record of the judgment alluded to in the notice, it is sufficient to confer jurisdiction; and this object may be accomplished without alluding to the time when the judgment was rendered. The notice of appeal states the nature of the action, the names of the parties, the title of the court rendering the judgment, and specifies the sentence pronounced by it upon the defendant; and under the liberal rule announced by this court in Crawford v. Wist, 26 Or. 596. 39 P. 218, we deem it sufficient to advise a stranger to the record what judgment was thereby intended, and adequate to confer jurisdiction.

2. Turning now to the evidence contained in the bill of exceptions, it shows that on July 2, 1894, one Andrew Armstrong was the engineer in charge of the boiler and engine situate in a building known as the "pumping station of the East Side Water Company," a corporation, then engaged in pumping water and supplying it to the citizens of Portland; that no business was transacted, nor were any goods, wares, or merchandise...