State v. Lewis , 19 Or. 478 ( 1890 )

Stkahan, C. J.,

delivered the opinion of the court.

The only question presented by this appeal arises upon the refusal of the court to give the instructions requested by the defendant and in giving the one to which an exception was taken. They are all resolvable into a single question, and that is, whether or not it was competent for the State to rely for conviction upon the evidence given by the witness Brown in relation to other emheLzloEaents than the particular one which was attempted to be proven by the introduction of the Clemens receipt for 804, and we are all of the opinion that it was not. For the purposes of this ea.o, it may be conceded, without deciding that other acts of embezzlement from the same parties anight be shown for the purpose of proving guilty knowledge or intent, still such evidence, if received, must be confined strictly to the purposes of its introduction and cannot be used to prove a substantive or independent crime. Wharton’s Cr. Ev., § 46; Mayer v. People, 80 N. Y. 364; Shipply v. People, 86 id. 375; 40 Am. Rep. 551; Pinckard v. State, 13 Tex. App. 468; Com. v. Shepard, 1 Allen, 575.

In Commonwealth v. Shepard, supra, it was expressly held that another act of embezzlement committed by a defendant in the same week with one charged against him in an indictment, is competent only for the purpose of proving a guilty intent on his part in the commission of the principal act; and the admission of such evidence in a case which, after a verdict of guilty is reported by a judge of the superior court for the determination of this court, is sufficient ground for a new trial, if it does not appear that it was limited to its legitimate effect by instructions to the jury. The sole object of the instructions asked by the appellant was to limit the effect of Brown’s testimony to the very purpose for which it was admitted by the court; but instead of limiting the effect of such evidence, the court thought proper to give an instruction broad enough to allow the jury to convict on evidence admissible solely for the purpose of proving guilty knowledge.

Such an instruction was manifestly erroneous and requires the reversal of the judgment and that the cause be remanded to the court below for a new trial, and it is so ordered.