author: BESSEY, J. BESSEY, J.

text:
    TOM COLLINS v. STATE.
    No. A-3835.
    Opinion Filed Feb. 17, 1923.
    On Rehearing, Sept. 17, 1923
    (212 Pac. 477, 218 Pac. 183.)
    (Syllabus.)
    1. Larceny — Evidence Sustaining Conviction for Larceny of Automobile. The evidence in support of the charge of automobile larceny examined, and held sufficient.
    2. New Trial — Overruling Motion for Newly Discovered Evidence not Erroneous. The court committed no error in overruling the motion for a new trial on the ground of newly discovered evidence, where such evidence was of doubtful probative force, and the showing of diligence to. produce it is wanting or inadequate.
    Appeal from District Court, Tulsa County; Redmond S. Cole, Judge.
    Tom! Collins was convicted of larceny of an automobile, and be appeals.
    Modified and affirmed on rebearing.
    Harvey C. Goodloe, Crossland & Smith, John L. Ward, and D. B. Welty, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for tbe State.
   BESSEY, J.

Tom Collins, plaintiff in error, was on February 9, 1920, by a verdict of a jury, convicted of the theft of an automobile, and Ms punishment fixed at eight years’ imprisonment in the state penitentiary. From the judgment rendered on the verdict, he appeals. For convenience the plaintiff in error will be designated the defendant.

The defendant urges but two reasons why the conviction should be set aside and a new trial granted; First, that the evidence is insufficient to support the verdict; second, that the court erred in overruling defendant’s motion for a new trial on the ground'of newly discovered evidence.

The evidence on the part of the state shows that the car in question was a practically new Cadillac car, of the probable value of $3,500; that this car was stolen from the garage of the owner in Tulsa on’ the night of September 12, 1919; that the car was discovered the next day in an abandoned barn adjacent to a roadhouse some distance from Tulsa; that after the discovery of the car in this barn two officers, in company with persons who knew the car, started to go to this place for the purpose of identifying it; as they were on their way out to the barn another car with three persons in it passed them, going at a high rate of speed; the searching party followed this other car as rapidly as possible, and saw it turn in towards the barn in question; just before it reached the barn a man with union-alls on, ¿afterwards identified as the defendant, came out from hiding in some weeds near by, and got in this car, which immediately turned and started back towards town. The officers stopped the car, took the defendant in charge, and took him into the barn, where they found the ear in question, it being easily identified as the stolen car by its brown color and the monogram T. H. C. painted on it. The starting mechanism was found locked, and the wiring to the switch had been tampered with and eon-necied in such a way that the ear had probably been run to the place where it was found under its own power. The hood had been removed, and some tools were lying about. Hanging near the side of the car was a top shirt, containing gold cuff links, a size 15*4 lay-down collar, and a black four-in-hand tie. The defendant when apprehended did not have on a top shirt, but was wearing working men’s union-alls.

At the time of his arrest the defendant denied knowing anything about the car, and stated to the officers and others present that he was just out there hunting for a roadhouse; defendant also denied that the shirt and hollar belonged to him. At the trial the defendant took the stand in his own behalf, and testified that on that day he by accident met a man he knew by the name of Pete Prince, who asked him if he could do some wiring on a car; that he replied, in substance, that he thought he could; that Prince then told him where the car was, and the defendant said he would go and see it, and that he was on his way out to see the car for the purpose of doing this wiring when he was arrested. He stated that after making this arrangement with Prince he went to his hotel, and took off his collar and shirt, put on this pair of union-alls over his underclothing, then rode out towards where he was told he would find this car on a jitney as far’ as it went, and walked the rest of the distance. It appears that this man Prince was one of the occupants of the car from which the defendant was taken when arrested. This is all we know about Prince; he was not produced as a witness to corroborate or explain any of the circumstances related.

After the defendant was incarcerated in jail the underclothing that he was wearing, with a blurred laundry mark thereon, was deposited in the sheriff’s office to be kept as evidence; it was claimed that at least one letter, the letter “C,” found on the collar corresponded to the mark on the underwear, but that the other parts of the mark were so blurred that they could not be positively described. When the case came on for trial this suit of underwear could not he found, and persons in charge of the sheriff’s office were unable to state what had become of it.

The testimony at the close of the state’s ease might have been insufficient to sustain a verdict of conviction, but that testimony, supplemented by the testimony of the defendant and his witnesses, we think was sufficient. The story told by the defendant was in many respects incredible, and could not be reconciled with his statements and conduct at the time of his arrest. In all probability others were implicated with him, but that makes no difference so far as the defendant’s case is concerned. Viewing the testimony in all of its aspects, we think the jury were justified in reaching the verdict rendered.

One of the affidavits in support of the defendant’s motion for a new trial on the ground of newly discovered evidence was made by a man by the name of Nicholson, who was a prisoner in the county jail, under sentence of conviction for stealing an automobile; in this affidavit he stated that he stole the automobile in question, and that the defendant had nothing to do with the theft; after making this affidavit this witness made his escape from jail, and his whereabouts were unknown at the time of the hearing of the motion for a new trial. Two other inmates of the jail made affidavits concerning statements made by Nicholson in which Nicholson assumed all responsibility for stealing the automobile in question. Considering this alleged newly discovered evidence in connection with the statement of the defendant that he was to alter the wiring on the stolen car for a man by the name of Prince, a man whose whereabouts was also unexplained, we think the court did not abuse his discretion in overruling the motion for a new trial on the ground of newly discovered evidence. The trial court in the first instance'must determine whether the alleged newly discovered evidence is competent, and probably founded in fact; where it appears that it is based on fabricated ex parte affidavits of criminals and fugitives from justice, the court might well hesitate to grant a new trial upon a motion supported by that kind of foundation. Furthermore, there was no sufficient showing that due diligence had been exercised to obtain this testimony before the trial.

The judgment of the trial court is affirmed.

MATSON, P. J., and DOYLE, J., concur.

BESSEY, J.

Upon consideration of the petition for rehearing in the above entitled and numbered cause, on this the 15th day of September, 1923, the judgment of the trial court is modified, fixing the punishment of the plaintiff in error at confinement in the penitentiary at McAlester for a period of five years, and the judgment of the trial court is in all other respects ratified and affirmed.


source: Caselaw Access Project

author: MATSON, P. J.

license: Public Domain

text:
    ARTHUR WELCH v. STATE.
    No. A-3950.
    Opinion Filed Feb. 17, 1923.
    (212 Pac. 449.)
    (Syllabus.)
    Rape — Repudiated (Complaint by Prosecuting Witness to Third Person Insufficient to Establish Corpus Delicti, Where the prosecuting witness in assault with intent to commit rape denies in toto the alleged assault, the particulars of a complaint made by her tó a third person, or persons, shortly after the alleged assault was supposed to have been committed, and not part of the res gestae of the assault itself, do not amount to legal proof of the corpus delicti.
    Appeal from District Court, Texas County; Arthur G. Sutton, Judge.
    Arthur Welch was convicted of the crime’ of assault with intent to commit rape, and he appeals.
    Reversed.
    John L. Gilson, for plaintiff in error.
    The Attorney General and E. L. Pulton, Asst. Atty Gen., for tEe State.
   MATSON, P. J.

This is an appeal from the district court of Texas county wherein on, the 20th day of November,, 1920, Arthur Welch was convicted of the crime of assault with intent to commit rape and sentenced to serve a term of five years’ imprisonment in the state reformatory at Granite.

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

“Plaintiff in error was charged by information and convicted in the district court of Texas county of assault with intent to commit rape. The assault is alleged to have been made upon his sister, Tressie Welch. She was introduced as a witness on behalf of the state, but denied the assault in toto. The state then for conviction relied solely upon statements which, it is claimed, were made soon after the alleged assault. Plaintiff in error and his sister were working for Mr. and Mrs. Joe Trent at the time of the trouble. Mrs. Trent testified, over the objection of counsel for plaintiff in error, that at the time the sister came to work for her her mother told her not to let the brother and sister be together. This witness also testified that on the day of the alleged assault she and plaintiff in error were working in the field; that he claimed to be sick and went to the house for some medicine; that she does-n’t know how long it was, but that it was in the neighborhood of half an hour, before she started back to the house and met the sister of plaintiff in error with the young daughter of witness coming to the field; that witness asked the girl Tres-sie if her brother was sick, and she said, no, he wasn’t sick; that witness thereupon told the girl Tressie what her mother had told her about her being with her brother, and thereupon, the witness stated, the girl said plaintiff in error had made an assault upon her. Later that evening the sheriff and a Mr. Smith, together, with the county attorney talked with the girl Tressie, and the court permitted them to testify to the fact that she told them plaintiff in error had made the assault. We are convinced that this was prejudicial error.
“The authorities all seem to hold that a prosecutrix in cases of this kind may be permitted to testify that she did make complaint, but that the details of the eomplaint cannot be given in evidence unless they form part of the res gestae. This rule is laid down by this court in the ease of Bouie v. State, 9 Okla. Cr. 345, 131 Pac. 955; and it is also the holding of all the authorities on this question. 33 Cyc. 1463. Under these authorities the testimony of Leeman and Smith, as to what plaintiff in error’s sister told them the evening after the assault is alleged to have occurred, was clearly incompetent and, of course, prejudicial. It was also, in our opinion, prejudicial error to permit the witness Mrs. Trent to testify what the mother of plaintiff in error and the sister had told her. We also very seriously doubt if the statement which Mrs. Trent testified the girl made to her was part of the res gestae. It seems to us that this statement does not come within the rule laid down by this court in the case of Price v. State, 1 Okla. Cr. 358, 98 Pac. 447, which has been followed in all recent cases. Plaintiff in error denied in toto the charge made against him, so the only evidence upon which the verdict and judgment could be based was the alleged admissions made by the girl. We recommend therefore that the judgment of the trial court be reversed.”

See, also, Huey v. State, 7 Ga. App. 398, 66 S. E. 1023.

An examination of the transcript of the evidence convinces this court that there was no competent legal evidence introduced by the state to prove the corpus delicti of the crime, and for that reason tbe confession of error by the Attorney General is sustained and the judgment reversed, and the cause remanded to the district court of Texas county for further proceedings not inconsistent with this opinion.

DOYLE and BESSEY, JJ., concur.


author: DOYLE, P. J.

text:
    FOREST POWERS v. STATE.
    No. A-4071.
    Opinion Filed Feb. 17, 1923.
    (212 Pac. 450.)
    (Syllabus.)
    Larceny — Evidence Supporting Conviction of Larceny of Automobile. In a prosecution for the theft of a Ford car, evidence considered and held sufficient to support the verdict and judgment of conviction.
    Appeal from District Court, Custer County; Thos. A. Edwards, Judge.
    Forest Powers was convicted of theft, and he appeals.
    Affirmed.
    Phillips & Mills, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Forest Powers, was convicted in the district court of Custer county on an information charging the theft of one Ford car, the property of Virgil Evans, and his punishment fixed at confinement in the penitentiary for a term of five years. He has appealed from the judgment rendered upon such conviction.

The defendant is not represented by counsel in this court. We have nothing before us but the petition in error and case-made. The errors assigned question the sufficiency of the evidence to sustain the conviction.

The evidence shows: That on the date alleged a Ford car was stolen from the garage of the owner in the town of Wea-therford; the tracks showed that three men had pushed the car out of the garage onto the highway. On the following Tuesday the car was found at Sentinel. Ben Hughes, Jr., and Carl Wilson, residents of Sentinel, were arrested and informed against for the theft of this car. Upon arraignment they pleaded guilty. That plaintiff in error left Sentinel on the •day the other defendants were arrested and was arrested in Arizona.

The evidence shows that the defendants hired a Ford car in Sentinel the day before the ear in question was stolen and returned to Sentinel with the stolen car. There was- evidence tending to show that they were seen together on the road returning to Sentinel.

The defendant did not testify, and no testimony was of:fered on the part of the defense.

After a careful examination of all the evidence, our conclusion is that the testimony, without a doubt, is ample to sustain the conviction. The record shows defendant had a fair trial.

The judgment is therefore affirmed.

MATSON, P. J., and BESSEY, J., concur.


author: PER CURIAM. PER CURIAM.

text:
    SAM WAKEN v. STATE.
    No. A-3945.
    Opinion Filed Feb. 17, 1923.
    On Rehearing, May 15, 1923.
    (212 Pac. 450; 214 Pac. 1096.)
    Appeal from County Court, Garfield County; E. L. Swig-<ert, Judge.

      Sam Waken was convicted of unlawful possession of intoxicating liquor, and he appeals/
    Modified and affirmed on rehearing.
    John L. Gleason, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

Sam Waken was charged by information in the county court of Garfield county with the unlawful possession of intoxicating liquors, and on trial to a jury his punishment was fixed at a fine of $500 and imprisonment in the county jail for six months. The charging part of the information is as follows: That Sam Waken did in Garfield county, state of Oklahoma, on or about the 31st of November, 1920, then and there unlawfully and willfully have in his possession a large quantity of fermented, spirituous, and intoxicating liquor, the same being then and there capable of being used as a beverage, and which contained about 11 per cent, of alcohol, with the intent then and there to sell, give, and furnish to others, in violation of the prohibitory liquor laws of the state of Oklahoma. Counsel for defendant moved to make the information more definite and certain, which motion was overruled, and also demurred to the information on the ground that the information did not state facts sufficient to charge the defendant with any offense against the laws of the state, which demurrer was also overruled and proper exceptions taken of the action of the trial court in both instances. It is here contended that the court erred in not sustaining the motion to make the information more definite and certain, and in overruling the demurrer thereto.

The information is sufficient under the holdings of this court in the following cases: Ex parte Spencer, 7 Okla. Cr. 113, 122 Pac. 557; State v. Feeback, 3 Okla. Cr. 508, 107 Pac. 442; Childers v. State, 4 Okla. Cr. 237, 111 Pac. 958.

It is further contended that the trial court erred in permitting the state to prove the general reputation of the place of business of the defendant, wherein the intoxicating liquor was found, to be that of a place where intoxicating liquors were kept for the purpose of sale. An examination of the record covinces the court that a sufficient predicate was' laid in this case to permit the introduction of such evidence under the holding of this court in Ward v. State, 15 Okla. Cr. 150, 175 Pac. 557. The other assignments of error are such as are either not supported by the record or else wholly without merit. We find no sufficient reason urged for the reversal of this judgment.

The judgment is therefore affirmed.

PER CURIAM.

Counsel for plaintiff in error have filed petition for rehearing, with request that if same be overruled the court again review the evidence and modify the judgment, because it is apparent from the record that the verdict assessing the maximum penalty was probably the result of passion .and prejudice, occasioned by the admission of evidence of .doubtful competency.

In view of the fact that this is the first time that the plaintiff in error has been convicted of an offense against "the laws of this state, and, after again reviewing the evidence, -the court has reached the conclusion that the judgment should be modified to provide a fine of $250 and imprisonment in the county jail for a period of 60 days, and as so modified the judgment be affirmed. It is therefore considered, ordered, and adjudged that the judgment of the trial court assessing .-a fine against plaintiff in error in the sum of $500 and that he be imprisoned in the county jail for a period of 6 months be, and the same is hereby, modified to provide a fine of $250 and imprisonment in the county jail for a period of 60 days.

As so modified, the judgment is affirmed.


author: BESSEY, J.

text:
    HENRY DOLESE v. STATE.
    No. A-3818.
    Opinion Filed Feb. 17, 1923.
    (212 Pac. 610.)
    (Syllabus.)
    1. Highways — Legal Highway not Established by Mere Order for Survey and Subsequent Approval Thereof by County Commissioners. A mere order of the county commissioners directing the county surveyor to make a survey of a road and their subsequent approval of the survey so made, without any compliance with the statutes authorizing the taking of land for road purposes and without any effort to compensate the owner of land sought to be taken, in no sense establishes a legal highway.
    2. Same — Insufficient Evidence to Convict of Obstructing Legal Highway. Where the accused erected houses on private land for private use at a place where they obstructed a road, but there is no evidence tending to show the establishment of a legal highway at that place, either by authority of law or by prescription, the accused should be acquitted of a charge of obstructing a public highway, based on section 2226, Comp. St. 1921.
    Appeal from District Court, Murray County; F. B. Swank, Judge.
    Henry Dolese was convicted of obstructing a public highway, and he appeals.
    Reversed.
    Wilson, Tomerlin & Threlkeld, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

Henry Dolese, plaintiff in error, was on April 6, 1920, found guilty of the offense of obstructing a public highway, contrary to the provisions of section 2226, Comp. Statutes 1921. His punishment was assessed at a fine of $1. From this judgment he appeals. In this opinion the plaintiff in error will be referred to as the defendant.

On May 23, 1918, the defendant was tried before a justice of the peace in Murray county, upon complaint in which he was charged with having knowingly and willfully obstructed, and caused to be obstructed, a certain highway in said county, by placing and causing to be placed in and on said highway four certain houses. The justice of the peace, without the intervention of a jury, found the defendant guilty as charged, and assessed a fine against him of $25 and costs. From this judgment defendant appealed ¡to, the district court. The case on appeal was tried in the district court, with the result above stated.

The provisions of section 2226, Comp. Stat. 1921, under which section this prosecution was instituted, are as follows:

“Any person who shall knowingly and willfully obstruct or plow up, or cause to be obstructed or plowed up, any public highway or public street of any town, except by order of the road supervisors for the purpose of working the same, or injure any bridge on the public highway, shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by a fine not exceeding one hundred dollars, and shall be liable for all damages to person or property by reason of the same.”

The houses here in question were constructed by Dolese Bros. Company, a corporation, upon land owned by Peter Dolese, who' had leased the land to the company. The construction of the houses was done under the supervision of Henry Dolese, representing the corporation. Dolese Bros. Company owned and operated a quarry near the road in controversy and near a switch on the Santa Fe Railroad.

J. W. King, the county surveyor, testified that he knew the location of the road in controversy, and that it had been laid out by him as a public road; that he made the survey in September, 1912; that the road was 33 feet wide, according to his survey. On cross-examination he said that the road was not along any section line, and that it was south of the 10-acre line; that he did not know whether any action was taken by the board of county commissioners to acquire a right of way from the owner by purchase or by condemnation. The witness then read from his field notes, and his testimony continues as follows:

“Q. You say this road was 30 feet south of the 10-acre line there? A. I think it was 30 feet wide — maybe 30 steps — I don’t remember.
“Q. Well, have you anything there that will tell us, Mr. King? A. No, sir.
“Q. You don’t know whether it was 30 feet or 30 steps? A. No, sir; it wasn’t my business to make that record.
“Q. This isn’t on the section line? A. OH, I know it ain’t.
“Q. It isn’t on the half section line? A. No, sir. * * *
“Q. How did you get this road? Did the commissioners put up anything for it? A. No; we didn’t pay anybody, but it was a road to go with, and the only road I ever saw to get to this switch and to Ed Cleveland’s store.”

It appears elsewhere in the testimony that the land prior to statehood belonged to the Choctaw and Chickasaw Tribes of Indians, with paramount title in the United States, and that Dorset Carter had owned the land before it was sold to Dolese. It appears from the testimony of a number of witnesses and a plat attached to and made a part of the record that there were a number of meandering roads and trails in this immediate vicinity, leading in various directions; that this particular road in controversy was partly in a creek bed, passing over boulders and benches of rock, and a portion of the way was on the creek bank, next to hills and projecting boulders; that at one time there had been a store near the railway switch, but that floods had carried it away; that the Santa Fe switch near by was not a regular station, and that there were other roads leading to this switch.

The records of the county surveyor did not show the distance of this road 'from any other established surveyor’s line, and the proof of the location of the road, as shown by the survey, was indefinite; it was shown that the land previous to this survey belonged to and was in the possession of Dolese Bros, and that no condemnation proceedings had been had to condemn any of the land for highway purposes; that these four houses had been erected for the use of the employes at the quarry. The evidence is conflicting as to whether or not this particular part of the road had been in general use by the public in years previous; all agreed that it was traveled but little at any time.

There is no contention on the part of the state that the statutes relating to the obtaining of a right of 'way for a public highway and compensating the owner of the land for such right of way had been complied with. For this reason the Attorney General has confessed error. There is no showing that this was indeed a public highway, either by reason of its being acquired from the owner, as the law directs, or by prescription. A mere order by the county commissioners to make a survey of a road and the subsequent approval of the survey, without any effort to compensate the owner of the land sought to be taken, is in no sense a legal establishment of a public highway. In the case of Dudley v. Meggs, 54 Okla. 65, 153 Pac. 1121, it was held:

“While the county commissioners made an order opening up the section line between plaintiff’s lands as a public highway prior to the time this controversy arose, yet the order was ineffective for the reason that they failed to comply with the statutory requirements of first obtaining the right of way either by amicable settlement or by condemnation proceedings. Section 7552, Rev. Laws 1910.”

See, also, Arthur v. Board of County Commissioners, 43 Okla. 174, 141 Pac. 1.

The evidence indicates that there was no well-defined roadway at the place here in controversy, and there was no road whatever there at a period prior to 10 or 11 years before the houses were built, and that the land in question was Indian or public land until the year 1911. To establish a right of way by prescription there must be á user by the general public under a claim of right, adverse to the occupancy of the owner, of some particular or defined way or track, uninterruptedly, without substantial change, for a period of time necessary to bar an action for the recovery of the land (in this state, 15 years). 9 R. C. L. 771, Easements, §§ 32-36; 13 R. C. L. 38, 39; Gihris v. Fuhrman, 68 Neb. 325, 94 N. W. 133.

A public road cannot be established by prescription or limitation while the land over which the road runs belongs to the United States. Smith v. Smith, 34 Kan. 293, 8 Pac. 385. And in the opinion it is stated that a public road cannot be established by prescription or limitation while the land over which the road runs is unimproved and unoccupied prairie land over which the public may travel at their pleasure. McKay v. Town of Reading, 184 Mass. 140, 68 N. E. 43.

The judgment of the trial court is reversed.

MATSON, P. J., and DOYLE, J., concur.


text:
    MELVIN C. TIPTON v. STATE.
    No. A-3803.
    Opinion Filed Feb. 17, 1923.
    (212 Pac. 612.)
    (Syllabus.)
    1. Indictment and Information — Where .Complaint Charged Robbery in First and Second Degrees, Amendment to Information Permissible Charging First Degree Only. Where an original complaint charging robbery is couched in such language as to charge robbery in both the first and second degrees, it is not error for the court to permit the county attorney to amend the information to charge robbery in the first degree only.
    Held, further, that the preliminary hearing was sufficient to support the charge as amended.

      St, Trial — Instructions—Failure to Define Robbery in Second Degree not Error Where no Evidence to Support it.' Where one is charged with robbery in the first degree, the court committed no error in failing to instruct the jury, defining robbery in the second degree, when there was no evidence offered tending to show a lower degree of the offense.
    3. Robbery — Forcing Delivery of Property Through Fear and Duress. Where one points a pistol at another, and with threats and menace of death compels the person assaulted to leave the presence of the one making the assault to procure money and property, which, when procured, is delivered to the person making the assault, while the person assaulted is under' continued fear and duress, this constitutes robbery under the circumstances outlined in the opinion.
    4. Robbery — Taking of Something of Value from Another by Force or Personal Fear, Gist of Robbery — Motives for Robbery Immaterial. The taking of something diTvalue from another by means of force or personal fear is the gist of the offense of robbery. Whether the motives leading up to the robbery grew out of avarice, revenge, or other like motive is immaterial, and the court committed no error in refusing to permit an extended examination touching such motives.
    5. Robbery — Forcibly Collecting Uncertain Unliquidated Damages as Robbery. In a robbery case, where the taking of the property is for the purpose of forcibly collecting uncertain unliquidated-damages as compensation for an alleged felonious assault on the taker’s wife, such forcible taking may constitute robbery and does not come within the rule that the forcible taking and retention of the property of another for the purpose of paying or securing the payment of a debt might not be deemed robbery.

      6. Same — Evidence Sustaining Conviction of Robbery in First Degree. The evidence as a whole, as outlined in the opinion, held sufficient to support the charge of robbery.
    Appeal from District Court, Bryan County; George S. March, Judge.
    Melvin ■ C. Tipton was convicted of robbery in the first degree, and he appeals.
    Affirmed.
    Warren B. Phillips, Hatchett & Ferguson, McPherren & Cochran, and J. A. Shirley, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

Melvin C. Tipton, plaintiff in error, was on April 1, 1920, by verdict of a jury found guilty of the crime of robbery in the first degree, committed on March 1, 1920. His punishment was fixed at confinement in the state penitentiary for a term of 10 years. From the 'Judgment on the verdict he appeals.

The facts in the case, as shown by the state’s evidence, may be summarized as follows:

The accused was a resident of the city of Durant. In the early part of December, 1919, he sold His business in Durant and went to Burkburaett, Tex., where he was temporarily employed, leaving his wife and two children in Durant, at the home of Mrs. Edwards. Some time in February, 1920, he received a letter from his wife, complaining of insulting treatment towards her by their family physician, a Dr. Armstrong. Upon receipt of this letter accuse'd returned home, and his wife informed him more fully concerning the abusive treatment complained of. The accused was not satisfied that his wife had fully disclosed what had occurred between her and the doctor, and after many futile efforts to induce her to make further disclosures, and having for several days worried over what had been disclosed and what he suspected the truth in fact might be, he took his two children, on March 1, 1920, over to the home of his mother, and then went to a neighbor’s house and telephoned Dr. Armstrong to come to his rooms immediately. Soon thereafter Dr. Armstrong arrived at the home of the accused, where he was met at the door by the wife of the accused and invited in; upon stepping inside the door the accused covered the doctor with a pistol, and ordered him to hold up his hands, directing his wife to search the doctor for weapons. Finding no weapons, the doctor with his hands still held aloft was ordered in the face of this pistol pointed towards him to sit down and relate to the accused all of the transactions that had occurred between the doctor and the wife of the accused in the latter’s absence. Mrs. Edwards, in a room adjoining, heard the accused say: “I ought to shoot you like a dog.” Anticipating trouble, Mrs. Edwards went to a neighbor’s house and telephoned the police; a few minutes later a policeman came, and Mrs. Edwards detailed to the policeman what she had heard. The policeman then went inside the room, and was informed by both Dr. Armstrong and the accused that his presence there was unnecessary; that they were just having an argument over a matter of business which they could adjust among themselves. The policeman then stated that he came there as a. police officer, on request, but that if he was .not needed he would leave, and then departed without further action.

In this connection Dr. Armstrong claims that the accused up to this time had been threatening to kill him; that he kept his pistol pointed towards him, and when the officer approached the accused told the doctor not to divulge tó the officer the nature of the difficulty, that if he did so he could kill him, and that he placed the pistol in his righthand coat pocket and kept his hand in this pocket during the time the officer was in the room, in such a manner as to be able to execute his threat. After the officer left the accused took the pistol out of his pocket, and again pointed it at the doctor. The accused claims that the doctor admitted to him that he had abused, mistreated, and insulted the wife of the accused, and offered a monetary settlement to right the wrong he had done, so far as he was able to do so; that after an extended discussion the doctor offered to pay the accused the sum of $1,000 in cash, to turn over to him a nearly new Dodge automobile, and to give him a note for $5,000, secured by a real estate mortgage. The doctor, on the other hand, testified that the admissions made concerning the treatment of the wife of the accused were made at the point of a pistol, through fear of immediate death, and that the accused with a drawn pistol exacted a monetary settlement; that he, while laboring under this fear and menace, agreed to pay the accused $1,000, to turn over to him the automobile, and to execute the $5,000 note in favor of the accused.

Either by agreement or through imminent fear of his life, Dr. Armstrong left the house and went to the bank for the purpose of securing the $1,000, followed by Tipton some distance in the rear; the doctor went into the bank alone, procured a cashier’s check for $1,000, made payable to himself, and, according to previous agreement met the accused near the bank at the foot of the stairs leading up to a lawyer’s office. In this office the cashier’s check was indorsed and delivered by the doctor to the accused. In the meantime the doctor had telephoned to have his automobile sent down, to be left in front of this office, without disclosing what had occurred. The doctor directed the lawyer to draw a note for $5,000, which was done. The mortgage to secure the same could not be executed at that time, because the doctor did not remember the description of the land, and it was agreed that the note should be" left with the lawyer, and it and the security therefor delivered later. Dr. Armstrong claims that during these transactions in the lawyer’s office the accused kept his right hand in his right coat pocket, and that the money was paid over and the automobile delivered to the accused while he was laboring under imminent fear and duress.

The day following these transactions Dr. Armstrong left Oklahoma to confer with a brother in Texas’ concerning this difficulty. When he returned to Durant he was approached by the sheriff, and asked to sign a complaint charging the accused with robbery. This the doctor refused to do, and gave as his reason for such refusal that he was afraid of the accused. The sheriff then made some further investigation, and himself made the affidavit instituting the prosecution in this case. For the sake of brevity many of the incidents appearing in the testimony are omitted from this narrative of the facts.

A preliminary examining trial was had, and the accused was held to answer to the district court; for the crime of robbery. The proceedings in the examining trial are not incorporated in the record here. Pursuant to the holding of the examining magistrate the county attorney filed an information in the district court, charging the accused with the crime of robbery, in language that might be construed to charge the crime of either robbery in the first degree or robbery in the second degree. Rater on the county attorney secured permission from the court to file an amended information,- specifically charging robbery in the first degree. The accused now contends that he was not accorded a preliminary examining trial supporting the charge of robbery in the first degree.

The language used in the first information filed stated:

* * Did then and there, and in the manner and by the means aforesaid, unlawfully and feloniously put the said Dr. Armstrong in fear of unlawful, immediate and future injury to Ms person, thereby by the force and fear aforesaid did then and there produce in the mind of said Dr. Armstrong such fear of immediate and future injury to his person as was sufficient to and did overcome all resistance,” etc.

Portions of the information as amended are as follows:

“• * * Did then and there, in the manner and by the means aforesaid, unlawfully and feloniously put the said Dr. Armstrong in fear of unlawful and immediate injury to Ms person, thereby, by the force and fear aforesaid, did then and there produce in the mind of the said Dr. Armstrong such fear of unlawful and immediate injury to Ms person as was sufficient to and did overeóme alí resistance of the said Dr. Armstrong; and while the said Dr. Armstrong was under the influence of the fear aforesaid, the said defendant did then and there unlawfully and feloniously rob, take, steal, and carry away from the person and immediate presence of the said Dr. Armstrong, to wit, one easMer’s check for $1,000, of the value of $1,000; one promissory note for $5,000, of the value of $5,000; and one Dodge passenger car of the value of $1,000; and all of the value of $7,000, in good and lawful money of the United States of America, against the will and consent of the said Dr. Armstrong, and with the unlawful and felonious intent on the part of the said defendant then and there to convert and appropriate said property to his own use and benefit, and to deprive the true owner, Dr. Armstrong, thereof, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Oklahoma.”

A demurrer to the amended information was interposed, upon the ground that the facts stated were insufficient to constitute the crime of robbery, and that the transcript of the examining magistrate, including the testimony taken at the preliminary hearing, were insufficient to support the information. The accused contends that in the preliminary hearing he was charged with and held for robbery in the second degree, and that, the court erred in permitting the county at-tbrney to amend the information so as to charge robbery in the first degree without any preliminary hearing as a condition precedent to an information charging robbery in the higher degree.

The proceedings in the preliminary hearing were not made a part of this record. This court has held in a number of eases that, where no specific affirmative record appears, it will be presumed that the accused has had a preliminary hearing as a basis for the information filed. The trial court upon consideration of the demurrer to the amended information in effect decided that the amendment charging robbery in the first degree was proper, and we think by fair inference decided that the findings in the examining trial were sufficient to support the charge. The original information was ambiguous, some of the language used indicating that the offense stated was robbery in the first degree, while other portions of the language used may have been considered to import robbery in the second degree. The amendment was doubtless allowed by the trial court to clarify this issue.

Robbery is defined by section 1784, Comp. Stat. 1921, thus:

“Robbery is a wrongful taking of personal property in the possession of another from his person or immediate presence and against his will, accomplished by means of force or fear.”

By the terms of section 1787 it is provided that the fear which constitutes the crime robbery may be the fear of an unlawful injury, immediate or future, to the person or property of the person robbed. Bearing this last provision in mind, we find the degree of robbery defined by section 1790, Comp. Stat. 1921, thus:

“Robberv, when accomplished by the use of force, or of putting the person robbed in fear of immediate injury to Ms person, is robbery in the first degree. When accomplished in any other manner, it is robbery in the second degree.”

It appears, therefore, that where the taking is accomplished by putting the person robbed in fear of immediate peril it is robbery in the first degree; where it is accomplished by means of fear of future injury to the person or property it would be robbery in the second degree.’ In the absence of any specific record to the contrary, this court will presume, under the conditions here recited, that the testimony taken at the examining trial and the findings of the examining magistrate were sufficient to support an information for robbery in the first degree.

Where an offense is by statute divided into degrees, the jury may find the accused guilty of any offense the commission of which is necessarily included in that with which he is charged. If there was no error in permitting the amendment — and we think there was none — the information as amended was sufficient to cover either degree of robbery. Section 2740, Comp. Stat. 1921. The accused’s punishment was fixed at the minimum for robbery in the first degree, and he now contends that the court erred in failing to submit to the jury the issue raised by the evidence, as he claims, of robbery in the second degree. In other words, it is contended that under the evidence he was entitled to such an instruction, wMch if given might have operated to mitigate his punishment.

All of the testimony on the part of the state, supplemented in part by the testimony of the accused himself, indicates that if Dr. Armstrong surrendered the money and the automobile under fear of personal violence, it was through fear of immediate peril; there is nothing in the record beyond a mere conjecture or suspicion that he handed over this property through fear of future violence. This being true, there was no issue of robbery in tbe second degree, and tbe court committed no error in failing to instruct tbe jury upon an issue not raised by tbe testimony. Tbe accused in tbe court below made no request for sucb an instruction. Tbe case was tried on tbe theory that be was guilty of robbery in tbe first degree, or nothing. Where there is noi evidence offered tending to show a lower degree of tbe crime charged, tbe court will not be required to give an instruction defining such degree. Nail v. State, 18 Okla. Cr. 40, 192 Pac. 592; Leseney v. State, 13 Okla. Cr. 247, 163 Pac. 956; 1 Randall’s Instructions to Juries, § 315.

Tbe accused’s theory of tbe affair was fairly submitted to tbe jury under tbe following instruction:

“However, you are further instructed that, if you find or have a reasonable doubt as to tbe matter, after Dr. Armstrong arrived at tbe borne of tbe defendant in response to bis invitation to do so, at tbe time above mentioned, tbe defendant accused him of having insulted, injured, or wronged bis' wife, Mrs. Eva Tipton, and that tbe defendant threatened to make tbe fact that tbe said Armstrong bad so insulted, injured or wronged bis wife public, or threatened to bring civil action in a court for sucb alleged insult, injury, or wrong to bis wife, which tbe defendant bad a right to do, and that tbe said Armstrong then and there agreed to pay tbe defendant $7,000 in money or property, or any amount of money or property, if tbe defendant would not bring tbe matter into court or give it publicity, and that in pursuance to said promise on tbe part of the said Armstrong tbe said Armstrong and tbe defendant met at tbe office of tbe said Chas. A. Phillips, and that tbe said Armstrong then and there in pursuance to this agreement delivered and paid the defendant said property, then and in that event tbe defendant would not be guilty of robbery, and you should acquit him.”

The accused earnestly insists that the facts proved indicate that the offense, if it was an offense, was not robbery; that at most it was a species of blackmail or criminal conspiracy; that the fact that Dr. Armstrong left the home of the accused, unaccompanied by the accused, and went alone to the bank to procure the money, and, after having obtained the money, went to the place where they had agreed to meet, indicates that he was then free to inform others of his plight or to make his escape, and that he was no longer laboring under fear of immediate personal violence.

In an early English case it was held to have been robbery where thieves came to rob a person, and, finding little about him of value, by threats and menace of death compelled this person through fear to promise to and to go away and return with more valuable property, which he delivered to the robbers while still under fear and duress. I Hale, Pleas of the Crown, 532.

The same rule applies where under fear and duress one draws a check or draft for the payment of money, and, acting under imminent fear, delivers the same to the one making the demand. Rex v. Edwards, 6 Carrington & Payne, 521.

These cases are cited and commented upon with approval in I Wharton’s Criminal Law (10th Ed.) 749, and 2 Russell on Crimes, 112.

In the case of Harris v. State, 32 Tex. Cr. R. 279, 22 S. W. 1037, the facts shown were that a policeman accosted two women returning from work after dark, and, at the point of his pistol, placed them under arrest; they protested that they had done nothing; the policeman then offered to release them if they would pay him money. One of the women paid him $1, all of the money she had; the other woman had no money. Both were then compelled to go, at the point of the pistol, to a lonely spot, where he ravished one of the women. In passing along the road and paths to this place they met several persons, hut through fear of personal violence neither of the women made any outcry. Held, that the force and fear shown was sufficient to support a charge of robbery as well as one of rape.

We have been unable to find any recent case involving facts similar to those here related, but on the authority of thé cases cited, and giving a reasonable application to the elements of the crime, we see no reason why a short separation of the accused and the person robbed, who was still laboring under apprehension and fear of personal violence, should make the case any different from one where there was no such separation.

The accused further insists that his rights were prejudiced by the court’s refusal to permit him to prove in greater detail that for 19 days and nights before the commission of the offense charged he was in a worried and disturbed state of mind, culminating in the assault upon the doctor, which the accused claims was made, not for the purpose of robbing him, but for the purpose of ascertaining from the doctor himself whether the statements made by the wife of the accused were true; that he suspected that she had not fully disclosed all that had taken place between her and the doctor; and that the showing of this condition of mind would tend to prove that Ms motive was not robbery.

Ordinarily it is not reversible error for the court to limit the extent and scope of the examination of witnesses toucMng remote details of facts and circumstances leading up to the commission of the offense, where the facts sought amount to nothing more than uncertain or conjectural explanations of the motives of the accused. 10 R. C. L. 926.

The taking of something of value from another, by means of force or fear of injury, is the gist of the offense of robbery; whether the motives leading up to the assault grew out of avarice, revenge, or curiosity is immaterial. None of these motives would justify robbery, or change the degree of the offense, or operate to mitigate the punishment therefor. In homicide cases the state of mind, or the motives of the accused, leading up to the assault, are often material as explanatory of the question of malice or premeditation, but we can see no reason why any motive not explanatory of a design to rob would have any bearing on a robbery ease.

If the doctor made a felonious assault upon the wife of the accused, as accused claims he did, such conduct was indeed reprehensible. Even so, that would not justify the injured husband in collecting unliquidated damages at the point of a pistol to compensate him for such felonious assault. Many courts have luir that the taking and retention of the property of another for the purpose of paying or securing the payment of a debt would not necessarily constitute larceny or robbery. This is argued pro and con in People v. Smith (N. Y.) 5 Parker Cr. R. (N. Y.) 490; Commonwealth v. Stebbins, 8 Gray (Mass.) 492. We refuse, however, to extend this somewhat mooted doctrine so as to cover cases where the taking of the property is for the purpose of forcibly collecting uncertain unliquidated damages for an alleged criminal assault. To hold otherwise would amount to an invitation to those aggrieved by the criminal acts of others to assume the functions of judge, jury, and sheriff to violently and forcibly compensate themselves for the injury or assumed injury inflicted, to any extent deemed adequate by the aggrieved person alone, and that such violence would amount to no more than a mere trespass or simple assault.

By bis own admissions, the accused' by deception arranged for this interview with the doctor, and the doctor at the point of a pistol agreed to compensate the accused for the injury, suspected or real, to the latter’s wife; early in the controversy the cupidity of the accused became apparent. But “the jingling of the guinea helps the hurt that honor feels.” The offer to pay, or the forced agreement to pay, money to right this real or fancied wrong had a very soothing effect on the worried mind of the accused.

We think that all the physical facts shown, and the circumstances surrounding them, justified the jury in finding that the doctor surrendered at least a portion of this property under fear of imminent violence, and that the charge of robbery in the first degree was supported by the evidence.

The judgment of the trial court is therefore affirmed.

MATSON, P. J., and DOYLE, J., concur.


text:
    A. D. MORROW v. STATE.
    No. A-4388.
    Opinion Filed March 10, 1923.
    (212 Pac. 1008.)
    (Syllabus.)
    1. Trial — Instructions on Burglary Sufficient wherei no Request for More Explicit Instructions. Under the circumstances in this case, where no request is made for more explicit instructions to the effect that proof of another larceny or burglary would > not support a conviction of the larceny charged, there was no error in failing to give such an instruction. The instructions given sufficiently apprised the jury that proof of the burglarizing of the premises described in the information was essential to authorize a conviction.
    2, Burglary — Explanation of Possession of Stolen Property — Credibility to Justify Acquittal. Not every explanation, reasonable or unreasonable, of the possession of recently stolen property, or of the possession of property similar to that stolen, -will justify an acquittal. To so operate, the explanation should be both reasonable and worthy of belief.
    Appeal from District Court, Custer County; Thomas A. Edwards, Judge.
    A. D. Morrow was convicted of burglary in the second degree, and he appeals.
    Affirmed.
    A. J. Welch, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

A. D. Morrow, plaintiff in error, here referred to as the defendant, was on April 8, 1922, by a verdict of a jury convicted of the crime of burglary in the second degree, and his punishment fixed at confinement in the state penitentiary for a term of three years. The information charged that the defendant by force, fraud, and stealth broke into a certain granary belonging to R. D. Cole, and took and carried away 6 sacks of wheat belonging to Cole, with the intent on the part of the defendant to permanently deprive the owner of this wheat and tol convert the same to his own use.

The testimony on the part of the state was to the effect that Cole had recently threshed his wheat and had placed the grain in sacks, to the number of 81, in a granary on his premises, under lock and key; that on the night of the 15th of September, 1921, this granary was broken into by some one, and 6 of the sacks of grain were removed and carried away; that a man by the name of Ed Clifft informed Cole the next day that he had met the defendant on the road to Elk City with some sacked wheat in his car on the night previous. Upon inquiry Cole was informed that the defendant sold several sacks of wheat at Elk City early in the morning following the night his granary was broken into; that at this time * there was a county fair in progress at Elk City; while in Elk City on the day following the theft the witness met the defendant and his brother on the street, and charged them with having stolen hi's wheat; that when he made the accusation one of the Morrow boys, Johnnie, offered to pay for the wheat, saying, "We will pay for the wheat, but we’ll get even with you.” Johnnie was a brother of this defendant, and was jointly charged with defendant for the' commission of this offense.

Witness Dan Wilson testified that he saw the defendant and his brother driving into Elk City early on the morning in question, and that they had some sacks of what appeared to be wheat in their car; that he noticed that the sacks were sewed shut with string; that he himself had helped place 81 sacks of wheat in the Cole granary. Oscar Clifft testified that he had also worked for Mr. Cole and that he also had counted the wheat sacks in the granary; that he had sewed the sacks shut with string and binding twine; that after the granary had been broken into there remained but 75 sacks; that the sacks, for the most part, were what are called gunny sacks or tow sacks, and were of a yellowish color, indicating that they had been used for containers of cotton seed meal or cake.

Ed Clifft testified that on this particular night he was driving a Buick car, and that Guy" Eggleston was driving a car right in front of him; that Eggleston had a collision with a ear driven by the defendant and his brother; that they all got out of their respective cars, and witness noticed that the defendant and his brother had 6 sacks on the frame built back of their runabout ear; that the witness felt of one of the sacks and knew it contained wheat; that the place where this accident occurred was between the Cole granary and Elk City. Guy Eg-gleston testified that, when the collision occurred, he and the others got ont to examine the ears,, to see what damage was done, and remained there for some minutes; that he noticed that the defendant and his companion had 6 sacks of something in the rear end of their car or truck; that one of the sacks had fallen off onto the fender of the ear, and one had - fallen to the ground. Witness could not describe the sacks, except to say that he remembered that they were tow sacks.

A. A. Hill testified-that he was in the milling and grain business at Elk City; that while the fair was. in progress he bought 5 or 6 sacks of wheat from two men, and in payment for the wheat made out a check to one who said his name was J. C. MeClung; that the cheek was afterwards cashed and paid; that he examined the wheat in one of the sacks, which was sewed shut with string, and that he cut the string to examine the wheat; that the sacks had a yellowish cast, and looked as though they might have been used for cotton cake sacks; that they were not regular brown sacks, or regular wheat or grain sacks.

The defendant claimed that the sacks in which he had taken the wheat to Mr. Hill’s mill had been purchased by him, and that the wheat he sold had in fact been stolen, but from another place. These sacks were on exhibition in the courtroom, and in connection with their identification witness Hill was asked the following questions:

“Q. You know you took a sample out of one of them? A. Yes, sir.
“Q. You do know it wasn’t like these cotton sacks; that is, these duck sacks here? A. No, sir; the one I opened was-n’t.
“Q. Now, what-do you say as to their general quality, compared to these sacks lying before you here? A. Well, the one I opened didn’t look like these.
“Q. What did it look like? A. It looked something like it had been a cake sack.”

The defendant testified that he did not commit the burglary charged and that he had not at any time recently been at the Cole place. He stated that on the night of September 15, 1921, he and his brother stole about 10 bushels of wheat from an old house located on the farm of N. A. Wells, about 3 or 4 miles from the Cole place; that they took this wheat from a bin and poured it into, '6 sacks, which were carried to Elk City that night and sold the next morning to Mr. Hill. Defendant admitted that he met the state’s witnesses while on the way to Elk City with the wheat that night. Defendant claimed that he bought these sacks, which were the sugar sacks in evidence, in which this wheat was carried to town, at the Bass grocery store in Elk City on Tuesday before he took the wheat. He also admitted that the check for the wheat was made payable to J. C. McClung, a fictitious name. He further admitted that he and his brother, when accused by Cole of having stolen his wheat, paid! Mr. Cole $10, stating that he did this in order that Cole might not make a further investigation,* which would involve him in the theft of the wheat which he claimed he actually did steal.

Mr. Wells testified that he owned a little house on the road between the Cole premises and Elk City, in which he had placed about 30 or 32 bushels of wheat, and that on the Monday after the 15th of September he measured this wheat and came to the conclusion that he had lost about 10 or 12 bushels.

There are but two assignments of error seriously urged in defendant’s brief: First, failure of the court to instruct the jury on the defendant’s theory of the case, to wit, that the wheat stolen was not the wheat described in the information; second, that the evidence was insufficient to support the verdict.

In the trial below no objections were made or exceptions taken to any of the instructions, and no request was made for further instructions.. After defining burglary in the second decree, the court instructed the jury as follows:

“You are instructed that when the fact that a burglary has been committed is shown, and the question is whether or not the defendant committed it, his possession of property contained in said burglarized building, at a time not too long after the burglary, is a circumstance for the jury to consider and weigh in connection with all the other evidence, facts, and circumstances in the case. Its significance will vary with its special facts, and with the other facts in the case, among which are the nearness or remoteness of the proven possession to the burglary; the nature of the property, as passing readily from hand to hand, or not; what explanation he made, if any, of his possession of said property — together with such other facts and circumstances as would reasonably influence the opinion of the jurors as to the guilt or innocence of the defendant.”

Then followed instructions that, if the jury should believe from the evidence, beyond a reasonable doubt, that the defendant broke into and stole property from the “house described in the information” payment for the property stolen was no defense. Other instructions referred to the “house described in the information.” Under the circumstances here, and where no request is made for more explicit instructions to the effect that proof of another larceny or burglary would not support a conviction of the larceny charged, there was no error in failing to give such an instruction. The instructions given sufficiently apprised the jury that proof of the burglarizing of the Cole premises was essential to authorize a conviction.

Not every explanation, reasonable or unreasonable, of the possession of recently stolen property, or of the possession of property similar to that stolen, will justify an acquittal. The jury may not believe, and in this case evidently did not believe, the explanation made. The defendant was a self-confessed thief. His explanation was that he stole the wheat from another man and from another place than that charged. Posssibly he and his brother stole wheat from both places, but we are here concerned only with the wheat taken from the Cole premises. The person who bought the wheat, and. others, said the sacks looked like cotton seed or cake sacks, and were sewed with cord. The defendant said that they were sugar sacks, purchased at a grocery store in Elk City, but no effort was made to verify defendant’s story by the testimony of the person who was claimed to have sold him the sacks. The sugar sacks were in court; the jurors had an opportunity to observe them, and to observe and consider the demeanor and apparent candor of the witnesses, and were better able than we to judge of the truthfulness of the respective stories of the witnesses. From the record here it appears that the jury were justified in concurring in the verdict rendered.

The judgment of the trial court is affirmed.

MATSON, P. J., and DOYLE, J., concur.


text:
    STATE v. JOHN E. THOMASON.
    No. A-4027.
    Opinion Filed March 10, 1923.
    (212 Pac. 1026.)
    (Syllabus.)
    Intoxicating Liquors — Information Sufficient to Charge Attempt to Manufacture Whisky. Information examined, and held sufficient to charge the offense of an attempt to manufacture whisky.

      Appeal from County Court, Payne County; Raymond H. Moore, Judge.
    John B. Thomason was informed against for the offense of an attempt to manufacture whisky, and from an orden sustaining a demurrer to the information, the State appeals on a reserved question of law. Decided in favor of the State.
    On the 5th day of July, 1921, the county attorney of Payne county, Okla., filed in the county court of said county, in a cause therein pending wherein the state of Oklahoma was plaintiff and John E. Thomason defendant, a second amended information in words and figures as follows:
    “Comes now John F. Vaughan, county attorney of Payne county, state of Oklahoma, under and by virtue of the authority vested in him as county attorney, and gives this honorable court to know and be informed, in the name and by the authority of the state of Oklahoma, that at and in the county of Payne and state of Oklahoma, on the 3d day of March, 1921, one John E. Thomason, then and there being, did then and there willfully and unlawfully, at his home and premises, residence, and farm about eight miles northeast of the city of Stillwater, attempt to manufacture spirituous liquor, to wit, whisky, by a method of distillation and by the use of an apparatus commonly known as a still, and did then and there have in his possession a boiler with the lid soldered on, with two places in the top, one to pour in mash and a place to attach a worm; said boiler being so constructed that it was. adapted for the use of boiling mash which was necessary in the manufacture of whisky, and said boiler was then and there a still, also a two-burner gasoline stove, adapted to the use of boiling, heating, and cooking mash, and did then and there manufacture and make about 40 gallons of mash, which said mash was then and there fermented! and ready to be heated, cooked, boiled, and distilled, and used in said still for the manufacture of said whisky, and said John E. Thomason would have completed the manufacture of said whisky, had he not been prevented from doing so in his attempt by the officers taking his still, stove and mash, all of which acts were then and there done by him, the said John B. Thomason, with the unlawful and wrongful intent to manufacture whisky, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Oklahoma.”
    Said information was properly verified
    On the 6th day of July, 1921, the defendant filed a demurrer to the aforesaid amended information, which demurrer is as follows:
    “Comes now the defendant, John B. Thomason, and demurs to the second amended information filed in the above entitled cause by the county attorney of Payne county, Oklahoma, on the 5th day of July, 1921, for the following reasons and upon the following grounds, to wit:
    “First. That said information is defective, and does not conform to the requirements of chapter 62 of the Revised Laws of 1910 and amendments thereof, of the state of Oklahoma.
    “Second. That said information is so indefinite and uncertain that the defendant is not sufficiently informed of the offense with which he is attempted to be charged under said information to enable the defendant to prepare to meet the allegations of such information.
    “Third. That said information is duplicitous, and charges more than one offense, or attempts to charge more than one offense, against the laws of the state of Oklahoma.
    “Fourth. That the facts stated in such information do not constitute a public offense against the laws of the state of Oklahoma.
    “Fifth. That said information does not charge an offense against the laws of the state of Oklahoma.
    “Sixth. That said information fails to charge an overt act by the defendant, or any sufficient act to constitute an attempt to commit any crime, and particularly the crime of manufacturing of whisky or distillation of whisky or any intoxicating, spirituous, vinous, or malt liquor.
    “Seventh. That said information charges only an intent, and does not charge the defendant with any criminal offense against the state of Oklahoma.”
    On the 9th day of July, 1921, the trial court entered an order sustaining the demurrer to the amended information, which said order is as follows:
    “Now, on this 6th day of July, 1921, the above cause came on for hearing upon the demurrer of the defendant to the second amended information filed herein, charging the defendant with the attempt to manufacture whisky, and the court, after being well advised, sustained said demurrer, on the ground that the facts alleged in said information do not constitute an attempt, but merely show a preparation to commit a crime, instead of an attempt, to which order of the court the county attorney then and there excepted, and reserved said question for review by the Criminal Court of Appeals of the state of Oklahoma, and gave notice in open court of his intention to appeal said cause, and asked that said notice be spread upon the trial docket of said court, and asked for an extension of time in which to make and serve a case-made. It was therefore by the court ordered, adjudged, and decreed that the state of Oklahoma be given 30 days in which to serve and make a ease-made, 10 days to suggest amendments, to be settled and signed upon 5 days’ notice, and the question of sufficiency of the information is hereby reserved for appeal.”
    Thereafter the county attorney served written notice of appeal on H. A. Jones, court clerk, also on the attorneys of record for the defendant, and also on the defendant himself.
    The question of law reserved for decision by this court is the alleged error of the trial court in sustaining the demurrer of the defendant to the second amended information.

      John. F. Vaughan, Co. Atty., George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

(after stating the facts as above). This prosecution is based upon section 2297, Compiled Statutes 1921, which provides:

“Any person who attempts to commit any crime, and in such attempt does any act toward the commission of such crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable, where no provision is made by law for the punishment of such attempt, as follows.”

Then follows four subdivisions, providing the punishment for attempted crimes. The intention of the pleader in drawing the foregoing information was to charge an attempt to manufacture a certain intoxicating liquor, to wit, whisky. It is made an offense by both the Constitution and statute of this state to manufacture intoxicating liquor. Section 7002, Compiled Statute 1921; prohibition article (Const.) p. 276, Comp. Stats. 1921.

Courts take judicial notice that whisky is an intoxicating alcoholic beverage. Schlict v. State, 56 Ind. 173; Edgar v. State, 37 Ark. 219; Frese v. State, 23 Fla. 267, 2 South. 1; Fears v. State, 125 Ga. 740, 54 S. E. 661. Also that whisky is made by processes of fermentation and additional distillation. State v. Williamson, 21 Mo. 496; State v. Dengolensky, 82 Mo. 44.

An attempt to commit a crime consists of the following elements: First, the intent to commit the crime; second, the performance of some act towards its commission, commonly called the commission of some overt act; third, the failure to complete or consummate the crime.

It follows, therefore, that the intent to commit a crime, standing alone, does not constitute an attempt towards its commission, and it further follows that an intent to commit a crime, coupled with the overt act, in order to be an attempt, must fail to consummate the crime. In other words, the intent and the overt act combined must fall short of the completed crime, in order to be an attempted crime. Where the intent and the overt act result in the consummation of the crime, there can be no prosecution under the attempt statute.

It is also well settled that the overt act must be something more than mere preparation or planning the crime. It must be something done, some step taken beyond preparation, that directly moves toward the crime and brings the accused nearer to its commission than mere acts of preparation or of planning. It must be such act or acts as will apparently result, in the usual and natural course of events, if not hindered by extraneous causes, in the commission of the crime itself.

Applying the general principles above stated to the information in this case, the following result is obtained: The information alleges that the defendant Thomason, with the unlawful and wrongful intent to manufacture whisky, did the following: Got possession of a boiler with the lid soldered on, with two places in the top, one suitable to pour mash into, and the other suitable to attach) a worm to, and thát he also got possession of a two-burner gasoline stove, adapted to the use of boiling, heating, and cooking mash. Standing alone, the foregoing allegations might amount only to preparation or planning the crime; but the information goes further, and alleges in substance and by necessary inference that the defendant, being in possession of the foregoing ap-parati and implements for manufacturing whisky, "did then and there manufacture and make about 40 gallons of mash, which said mash was then and there fermented and ready ,to be heated, cooked, boiled, and distilled, and used in said still for the manufacture of said whisky.” The latter allegation, in our opinion, sets forth a step taken by the defendant beyond the preparation and planning of the crime. These allegations, considered together, show the unlawful intent of the accused to commit the crime and overt acts of his in direct execution of that intent. Now, it is only necessary to consider whether the information alleges matter which shows the failure of the accused to consummate the crime, and in this connection it is our opinion that the following allegation is sufficient for that purpose:

“And said John E. Thomason) would have completed the manufacture of said whisky, had he not been prevented from doing so in his attempt by the officers taking his still, stove, and mash.”

Such allegation shows the extraneous cause intervening to prevent the completion of the crime itself.. While the information is somewhat inartifieially drawn, we think that these allegations are sufficient, and set forth the essential elements of the crime of attempting to manufacture whisky, and that the trial court was in error in holding that the overt acts alleged only showed preparation. For such reason it is the opinion of this court that the trial court erred in sustaining the defendant’s demurrer to the information.

The trial court m!ade no order authorizing or directing the county attorney to file an additional amended information charging the offense. For a discussion of the proposition as to the finality of the trial court’s judgment sustaining the demurrer to the information, and the right of the state to further) prosecute, in the absence of an express authorization or direction to that effect by the trial court, see opinion in State v. Vaughan, 15 Okla. Cr. 187, 175 Pac. 731.

DOYLE and BESSEY, JJ., concur.


text:
    BEN H. MASON v. STATE.
    No. A-3980.
    Opinion Filed March 10, 1923.
    (212 Pac. 1028.)
    (Syllabus.)
    1. Preliminary Complaint — Technical Rules of Pleading not Applicable. Technical rules of pleading need not be adhered to in the preliminary complaint to the same extent as may be required in the information in the trial court.
    2. Indictment .and Information — Information Charging Substantially Same Offense as Preliminary .Complaint Sufficient. An information is sufficient where it charges substantially the same offense charged in the preliminary complaint.
    3. False Pretenses — Information—Sufficiency of Description of Property Obtained, The rule that the money or thing of value obtained by means of any false pretense should be as particularly described as would be necessary in an information charging larceny held not to apply to section 2146, Comp. Stat. 1921.
    4. Indictment and Information — Words Colnstrued in usual Acceptation Except Where Different Fixed Legal Significance. Words used in an indictment or information must be construed in their usual acceptation in common language, except words and phrases having a different fixed legal significance.
    5. False Pretenses — Definition of “Money” Obtained. In the sense here used, “money” means gold and silver coin, treasury notes, bank notes, and other forms of currency in common use, and every deposit which any person owning the same is entitled to withdraw in money on demand.
    Appeal from District Court, Carter County; Thus. W. Champion, Judge.
    Ben H. Mason was convicted of obtaining money by means of false and bogus instruments, and he appeals.
    Affirmed.

      Bass & Hardy, J. R Mathers, J. B. Champion, and H. H. Brown, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

Ben H. Mason, plaintiff in error, by a verdict of a jury rendered November 19, 1920, was fonnd guilty of passing bogus instruments, as charged in the information, and his punishment was fixed at confinement in the state penitentiary for a period of one year. From the judgment rendered on this verdict he appeals.

A preliminary complaint in this case was filed October 11, 1919, in the county court of Carter county, sitting as an examining magistrate, in which the charging part of such complaint was as follows:

“He, the said Ben H. Mason, did then and there willfully, unlawfully, fraudulently and feloniously, with the intent then and there to cheat and defraud, and by means of a certain false and bogus instrument, to wit, claim against the city of Ardmore, Okla., a municipal corporation, obtain and receive of and from the said city of Ardmore the sum of $6,362.45 good and lawful money of the United States of America, with the willful and unlawful and fraudulent and felonious intent to convert the same to his own use and benefit, and to deprive the true owner of the use thereof, contrary to the form of the statutes in such case made and provided, and against the peace and dignity of the state.”

On the 5th day of May, 1920, there was filed in the district court of Carter county in this case an information the material parts of which are as follows:

“That on or about the 21st day of January, 1919, one Ben H. Mason did then and there willfully, unlawfully, fraudulently, and feloniously, with the fraudulent and felonious intent then and there to cheat and defraud, and by means and use of certain false and bogus instruments in print and writing, which he, the said Ben H. Mason, then and there well knew to be false andl bogus, in the said county and state of Oklahoma, receive and obtain money from the city of Ardmore, Okla., a municipal corporation duly authorized and existing under and by virtue of the laws of the state of Oklahoma, the sum of $6,362.45 good and lawful money of the United States of America, and of the value of $6,362.45, which said instruments aforesaid are in words and figures as follows:

(Followed by a minute description of the several instruments, consisting of drafts, bills of lading, and certificates of account, alleged to be false and bogus, all of which was concluded as follows:)

“City of Ardmore, Ardmore, Oklahoma. Accounts Payable, to First National Bank, Dr. Charge for 1918, Additional Water Supply Fund.
Month. Day. Year For
Jan. 21 1919 Car No. Soo ........................40363 $1,590.81
Car No. PER___________88965 1,590.51
Car No. MC____48907 1,590.62
Car No. NYC_________________261707 1,590.51
$6,362.45
“Contrary to the form of the statutes in such case made and provided and against the peace and dignity of the state.”

The plaintiff in error, herein designated the defendant, moved to quash the information filed in the district court on¡ the grounds:

First. That the allegations are insufficient to constitute a crime.

Second. That the defendant was held in the examining magistrate’s court for one offense and placed on trial in the district court for another offense, and that he was not accorded a preliminary examination, nor did he waive such examination, as a condition precedent to being put upon trial as charged in the district court. This motion was by the court overruled.

Before the introduction of any testimony the defendant objected to the introduction of evidence for the reason that the information filed in the district court stated a different offense than that contained in the charge filed, and upon which the trial was had in the examining magistrate’s court. This objection was likewise overruled.

To us it seems manifest that the preliminary complaint was based upon what is commonly known as the “bogus check statute” (section 2146, Comp. St. 1921). The language “with the intent then and there to cheat and defraud by means of a certain false and bogus instrument” indicates such purpose on the part of the prosecutor. The information'filed in the district court pleads the facts more definitely and in greater detail, by setting, out copies of the instruments at length and in detail. The complaint in the examining magistrate’s court we think was sufficient; the technical rules of pleading need not be adhered to in the preliminary complaint to the same extent as may be required in the information in the trial court. We conclude that the objections based on the insufficiency of the preliminary complaint are therefore without merit. It has been frequently held by this court that an information is sufficient where it charges substantially the same offense charged in the preliminary complaint. Sayres v. State, 10 Okla. Cr. 195, 135 Pac. 944; Tucker v. State, 9 Okla. Cr. 587, 132 Pac. 825; Ponosky v. State, 8 Okla. Cr. 116, 126 Pac. 451; Agent v. State, 18 Okla. Cr. 281, 194 Pac. 237; 16 Corpus Juris, “Criminal Law,”' § 505 et seq.

The proof in support of the information shows that the defendant by deception obtained from the city of Ardmore a city warrant in the sum of $6,362.45 by means of a false, bogus, and duplicate claim against that city for material that had been previously paid for by the city, material used in the construction of its municipal water system. The defendant, by his agent, deposited this warrant, so fraudulently obtained, in the First National Bank of Ardmore, whose cashier was the city treasurer. The sum of money represented by the warrant was by agreement with the city treasurer deposited to the credit of the defendant in this bank, and the funds so deposited were checked upon by the defendant, and from time to time -drawn out for his use and benefit.

The defendant contends that there was a fatal variance between the proof offered and the allegations of the information, in that the proof shows that the property received by the defendant was a city warrant, deposited in the bank to the credit of the corporation of which defendant was the fiscal manager, and that the information charges defendant with obtaining “money”; that credit in a bank, through the medium of a city warrant, is not “money” within the meaning of the statute or the averments in the information. The statute (section 2146, Comp. St. 1921) under which this prosecution was maintained is as follows:

“Every person who, with intent to cheat and defraud, shall obtain, or attempt to obtain, from any other person or persons, any money, property, or valuable thing, by means or by the use of any trick or deception, or false or fraudulent representation, or statement or pretense, or by any other means or instrument or device, commonly called the ‘confidence game,’ or by means or by use of any false or bogus check or by any other written or printed or engraved instrument or spurious coin or metal, shall be deemed guilty of a felony, and, upon conviction, be punished by imprisonment in the penitentiary for a term not exceeding 7 years.”

A reading of this statute and the other sections of the “false pretense”, chapter of our Criminal Code makes it manifest that if was the intention of the lawmakers by the enactment of this particular section to cover all manner of fraudulent schemes to extract property belonging to others from them by means- of tricks or deceptions, including all subtle, genteel methods, however perpetrated, equivalent to larceny by fraud. The blanket provisions of this statute indicate that it was not the intention of the lawmakers to limit its application to any refined technical construction of the words or terms used. The gist of the inquiry is: Did this defendant, by fraud and deception, take from the city of Ardmore, without any right, its funds or property for his own use ?

The record shows that the defendant was the fiscal agent for the construction company, and the only person authorized to draw on its bank account, and that the proceeds of this fraudulent warrant were deposited' in the bank and from time to time checked out by the defendant. In construing an embezzlement statute and the information based upon it, Judge Matson, in the case of Fulkerson v. State, 17 Okla. Cr. 103, 189 Pac. 1092, quoting with approval from 9 R. C. L. 1297, said:

“Nor is there a variance between an allegation of embezzlement of public moneys of a county and! proof that the defendant, without obtaining possession of the actual money, drew checks against the account to which the moneys were deposited, which were duly presented and paid. The reasons advanced for this holding are (1) that when a check is drawn there is a segregation of money from the , general funds of the bank, and for a space of time, however short, the money of the depositor is being dealt with, and (2) that the word ‘money’ in embezzlement statutes relating to public funds is used in a generic and not in a specific sense, that is, that it includes all actual moneys, credits, and funds of every kind belonging to the public.”

In tbe Fulkerson Case tbe accused acted in a dual capacity of cashier of a bank and treasurer of tbe school board from whom tbe funds were diverted. Here tbe treasurer of tbe city of Ardmore was cashier of tbe First National Bank of Ardmore, and, as cashier, passed tbe proceeds of tbe warrant here involved to tbe credit of tbe defendant as a deposit, and later tbe defendant drew checks on this deposit. ' Quoting further from tbe Fulkerson Case, an excerpt taken from tbe opinion in Territory v. Hale, 13 N. M. 181, 81 Pac. 583, 13 Ann. Cas. 551, citing Bank v. Millard, 10 Wall. 152, 19 L. Ed. 899:

“But when a check is drawn there is a segregation of that much money from tbe general funds of tbe bank, which becomes tbe property of tbe depositor. This may be placed to tbe credit of tbe payee of tbe cheek, or it may be banded him in money, or otherwise disposed of as tbe parties may elect. But for a space of time, however short, tbe money of tbe depositor is being dealt with. And so it has been held under statutes against embezzlement of money that such embezzlement is accomplished by tbe drawing of a check upon a bank where such money is deposited.”

Construing an embezzlement statute, the court in Territory v. Hale, 13 N. M. 181, 81 Pac. 583, 13 Ann. Cas. 551, used tbe following language:

“Another view has been advanced for tbe same bolding to the effect that tbe word ‘money’ in embezzlement statutes relating to public funds is used in a generic and not a specific sense, that is to say, that it includes all actual moneys, all credits and funds of every kind belonging to tbe public. We can see no impropriety in such view. Tbe result must be salutary, and can in no way impair tbe rights of 'defendants. Tbe holding in this ease that tbe facts support a conviction of embezzlement of money may well rest upon either view above suggested.”

It has been held by many of the appellate courts that the money or thing of value obtained by means of any false pretense should be as particularly described as would be necessary in an information charging larceny. Ordinarily that may be true; but we think this rule should not apply strictly, as it relates to this particular section of our statutes, considered separately and in conjunction with the other provisions relating to false pretense. Section 2561, Comp. Stat. 1921, a part of our Code of Criminal Procedure, provides that the words used in an indictment or information must be construed in their usual .acceptation in common language, except words or phrases having a different fixed legal significance. As an indication of what is meant by the word “money” in common language reference may be made to the standard dictionaries in common use. Our own statutes, in the chapter relating to revenue, give a good- definition of the word as commonly used and understood:

. “ ‘Money’ * * * shan mean gold and silver coin, treasury notes, bank notes and other forms of currency in common use, and every deposit which any person owning the same * * * is entitled to withdraw in money on demand. ’ ’ Comp. St. 1921, § 9584.

The reasons given for such a construction as applied in cases charging embezzlement it seems to us apply with equal force in construing this statute relating to false pretense, and there are authorities supporting this view. People v. Whalen, 154 Cal. 472, 98 Pac. 194; 11 R. C. L. 861; People v. Clark, 256 Ill. 14, 99 N. E. 866, Ann. Cas. 1913E, 214, with citations, notes, and annotations. Be this as it may, the most common practice of drawing upon a deposit in a bank is to draw a check on the deposit and receive the amount named in the cheek in currency. The testimony in this ease shows that defendant drew checks against this deposit, and the presumption is that be received “money” of tbe amount designated in tbe several checks.

We recognize that tbe rules of construction as above announced and applied have not been everywhere followed in all eases; but, considering tbe purpose of this particular statute, express and implied, we are impelled to bold, upon sound reason and respectable authority, that tbe word “money” in this instance should be construed in a generic sense, so as to include coin, currency, drafts, warrants, and other things equivalent to money by means of which the person injured was deprived of money. We think it would be an outrageous injustice to the taxpayers of the city of Ardmore to hold otherwise on the flimsy pretext that the defendant obtained credit, but, strictly speaking, no money, at the time the warrant was deposited to defendant’s credit. By this false pretense the taxpayers lost this money or its equivalent, and that is sufficient.

The judgment of the trial court is affirmed.

MATSON, P. J., and DOYLE, J., concur.