People v. Van Buren

herewith are that heretofore under one count of an information filed against defendant he was convicted of the crime of grand theft, and, at the same time, under a separate count of the same information, he was acquitted of the offense of driving an automobile without the consent of the owner thereof. His appeal from the ensuing judgment resulted in an affirmance thereof. Some time thereafter, defendant presented a motion to the superior court to vacate the judgment which theretofore had been rendered against him, which motion was by said court denied. His appeal from that order was dismissed by order of this court;

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following which, defendant presented a second motion to the superior court to vacate the said judgment. That motion also having been denied, the defendant appealed from such order to this court; whereupon the respondent has moved for a dismissal of said last appeal.

An inspection of the opening brief by appellant reveals the fact that the point urged by him as a sufficient reason for an order by which the said judgment would be vacated is that, since the evidence showed that the two crimes of which he was separately charged arose out of the same transaction, and since on the trial of the action he was acquitted by the jury of the offense of driving an automobile without the consent of the owner thereof, necessarily the legal effect was that he could not have been guilty of theft of the automobile.

It is apparent that the merits of appellant’s contention cannot be considered on the hearing of the instant motion. The point here at issue is whether, considering the facts hereinbefore set forth, appellant is entitled to have his contention considered by this court. Not only is it clear that on the original appeal from the judgment appellant might have presented for decision by this court the identical point which he now urges, but also (assuming, but not deciding, the propriety of his first motion to vacate the said judgment) that he might have done so on his appeal from the order by which his motion to vacate the said judgment was denied. In other words, appellant heretofore has had at least one opportunity, and possibly two separate opportunities, to have determined the very point which on his third appeal he now seeks to have decided. If such a course of procedure is in accordance with the law and the practice of the several interested courts, it is manifest that by presenting a single point on his appeal from the judgment against him, in the event that such judgment should be affirmed, the defendant thereafter by successive motions to vacate the judgment, each for a reason differing from either of the others, followed by an appeal from the order in each case by which his said motion was denied, would occupy the attention of the trial court and this tribunal indefinitely. In that regard the authorities of this state appear to be against the position assumed by appellant.