text:
    MARTIN M. FULKERSON v. STATE.
    No. A-3182.
    Opinion Filed Jan. 31, 1920.
    (189 Pac. 1092.)
    1. INDICTMENT AND INFORMATION — Requisites—Statutory Language. Words used in a statute to define a public offense need not be strictly pursued in the indictment or information, but other words conveying the same meaning may be used.
    2. EMBEZZLEMENT — Information—Sufficiency—Duplicity. Por reasons holding the information in this ease not duplicitous, and sufficient to charge the crime of embezzlement, as defined by section 7437, Revised Laws 1910, see body of opinion.
    3. EMBEZZLEMENT — Proof of Exact Amount as Alleged. Under an indictment for embezzlement the state is not required to prove the embezzlement of the exact amount as alleged in the indictment or information.
    4. .. EMBEZZLEMENT — Embezzlement by School District Treasurer —'Variance. Where the defendant, as treasurer of a school district, is charged with the embezzlement of a certain sum of money belonging to .-the said district, and the proof adduced upon the trial shows that the defendant received as treasurer of said school district, a certain warrant, issued to said school district by the county treasurer and deposited the same to his personal credit in a bank and afterwards Cheeked against said fund for his personal use, held, there is no fatal variance between the allegations of tbe information and -the proof. For discussion of tbe reasons for so holding, see body of opinion.
    5. , STATUTES — Effective Date of Embezzlement Statute. Section 7437, Revised Laws 1910, became effective on the 16th day of May, 1913.
    6. EVIDENCE — Hearsay Evidence. It is not error to excluue proffered evidence where the same is clearly hearsay as to the witnesses by which the alleged facts are attempted to be proven.
    7. EMBEZZLEMENT — Evidence-^-Offer of Restitution — Purpose. A proffer of evidence that the defendant was anxious and willing to restore the funds alleged to have been embezzled was properly excluded. Such evidence would not constitute a defense to the charge, nor be proper to be considered in mitigation of the punishment; but restoration of the • funds, or tendered restoration thereof, or of any part thereof, before the commencement of the prosecution, is proper to be considered in mitigation of the punishment.
    8. APPEAL AND ERROR — Harmless Error — Instructions. Where the trial court instructs the jury along certain lines requested by counsel for the defendant, although not in the identical language requested, and it is contended on appeal that certain language used in the instruction given amounts to a comment upon the weight of the evidence, and an examination of the record discloses that the language complained of is almost identical with the language used by defendant’s counsel in the requested instruction, the alleged error complained of 'cannot be considered reversible.
    9. SAME — Rulings on Evidence. Before this court can reverse a conviction upon the ground that the trial court erred in the admission or rejection of evidence or in its instructions to the jury, we must first find from an inspection o,f the entire record that appellant was injured thereby, and to determine this issue the court must consider the question of whether appellant is guilty or innocent of the offense charged.
    10. SAME — Instructions—Em' ezzlement. For reasons holding that the trial court’s instructions in not limiting the jury to one par- , ticular act of embezzlement as a basis for conviction was not reversible error in this case, see body of opinion.

      Appeal from District Court, Woods County; W. C. Crow, Judge.

      Martin M. Fulkerson was convicted of embezzlement, and .he appeals.
    Affirmed.

      Wm. M. Bickel, H. A. Noah, an,d J. W. Barry, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall,. Asst, Atty. Gen., for the State.
   MATSON, J.

The defendant, Martin M. Fulkerson, who was treasurer of the board of education of the city of Alva, Okla., was convicted of the crime of embezzling the funds of said school district, and sentenced to serve a term of seven years’ imprisonment in the state penitentiary and to pay a fine of $5,531.42.

The prosecution is based on section 7437, Revised Laws 1910, which provides:

“If any county treasurer, or other officer or person charged with the collection, receipt, safe-keeping, transfer or disbursement of the public money, or any part thereof, belonging to the state or to any county, precinct, district, city, town or school district of the state, shall convert to his own use or to the use of any other person, body corporate or other association, in any way whatever, any of such public money, or any other funds, property, bonds, securities, assets or effects of any kind received, controlled or held by such officer or person by virtue of such office or public trust for safe-keeping, transfer or disbursement, or in any other way or manner, or for any other purpose; or shall use the same by way of investment in any kind of security, stocks, loan property, land or merchandise, or in any other manner or form whatever; or shall loan the same, with or without interest, to any person, firm or corporation, except when authorized by law; or if any person shall advise, aid, or in any manner knowingly participate in such act, such county treasurer, or other officer or person shall be deemed guilty of an embezzlement of so much of said 'money or other property, as aforesaid, as shall be converted, used, invested, loaned or paid out as aforesaid; and upon conviction thereof, such county treasurer or other officer or person shall be sentenced to imprisonment in the penitentiary at hard labor for a term of not less than three years nor more than twenty-one years, and also to pay a fine equal to double the amount in money or other property so embezzled as aforesaid; which fine shall operate as a judgment lien at law on all the estate of the party so convicted and sentenced, and shall be enforced by execution or other process for the use of the person whose money or other funds or property as aforesaid shall have been so embezzled;' and in all such cases such fines, so operating as judgment, shall be released or entered as satisfied only by the person in interest, as aforesaid.”

The information, omitting the caption, is in form as follows:

“In the name and by the authority of the state of Oklahoma, comes now Sandor J. Vigg, who is the duly qualified and acting county attorney in and for the county of Woods, state of Oklahoma, and upon his official oath gives the above-entitled court to know and be informed that Martin M. Fulkerson, the above-named defendant and M. M. Fulkerson are now, and have been at all the times mentioned in this information, one and the same identical person; that the city of Alva is now, and has been at all the times mentioned in this information, a duly and legally incorporated city of the first class and municipal corporation, organized and existing in the state of Oklahoma and under and by virtue of the laws of the state of Oklahoma and the laws of the former territory of Oklahoma; that the said city of Alva, together with such other outlying and adjoining territory as has from time to time been legally attached thereto for school purposes, does now, and did at all- the times mentioned in this information, constitute and compose a separate school district known and designated as school district 1, of the county of Woods, state of Oklahoma, and the same is now, and has been at all the times mentioned in this information, under the control, supervision, and management of the board of education of the city of Alva, of the state of Oklahoma; that the public schools of the said city of Alva, composed, constituted, organized, and numbered as aforesaid, are now, and have been at all times mentioned in this information, a body corporate organized and existing in and under and by virtue of the laws of the state of Oklahoma and the former territory of Oklahoma, possessing the usual powers of a corporation for public purposes by the name and style of the board of education of the city of Alva, of the state of Oklahoma; that the said board of education of the city of Alva, of the state of Oklahoma, is now, and has been at all the times mentioned in this information, a body corporate for public and school purposes, organized and existing under and by virtue of the laws of the state of Oklahoma and of the former territory of Oklahoma; that at all times from about the 28th day of April, A. D. 1908, to about the 28th day of August, A. D. 1913, continuously, Martin M. Fulkerson, the above-named defendant, was the duly elected, qualified, and acting treasurer of the city school board of the said city of Alva, and of the said school district 1, of the county of Woods, state of Oklahoma, and of the said board of education of the city of Alva, of the state of Oklahoma, the same being now, and having been at all the times mentioned in this information, one and the same identical body corporate and public corporation for school and other public purposes, organized and existing under and by virtue of the laws of the state of Oklahoma and of the former territory of Oklahoma; that neretofore and on or about the 9th day of August, A. D. 1913, at and within the said county of Woods, state of Oklahoma, the said Martin M. Fulkerson, then and there being, was then and there an officer, to-wit, the duly elected, qualified, and acting treasurer of the said city school board of the city of Alva, and of the said school district 1, of the county of Woods, state of Oklahoma, and of the said board of education of the city of Alva, of the state of Oklahoma, the same being then and there a body corporate and public corporation for school and other public purposes, organized and existing under and by virtue of the laws of the said state and territory aforesaid, and as such treasurer and officer of the said body corporate and public corporation as aforesaid the said Martin M. Fulkerson was then and there, and at all times mentioned in this information, charged and intrusted with the collection, receipt, safekeeping, transfer, and disbursement of the sum of money hereinafter mentioned and of the public money and other funds, property, bonds, securities, assets, and effects of, for and on behalf of the said body corporate and public corporation aforesaid, all of which said sum of money hereinafter mentioned and other funds, assets, and property, a better description of which is to your informant unknown, then and there belonged to and were then and there the personal property of the said city school board of the said city of Alva, and of the said school district 1, of the county of Woods, state , of Oklahoma, and of the said board of education of the city of Alva, of the state of Oklahoma, as such; that on or about the said 9th day of August, A. D. 1913, at and within the said county of Woods, state of Oklahoma, the said Martin M. Fulkerson, as such officer and treasurer aforesaid, so acting, charged, and intrusted as aforesaid, was then and there intrusted and charged with, and did then an there receive, have, and hold in his possession and under his control by virtue of Tiis said office and public trust as such .officer and treasurer of the said city school board of the said city of Alva, and of the said school district 1, of the county of Woods, state of Oklahoma, and of the said board of education of the city of Alva, of the state of Oklahoma, and for the public purposes aforesaid, that certain sum of money hereinafter mentioned and certain public moneys and other funds, bonds, property, securities, assets, and effects by him received and collected, as such treasurer and officer of the said body corporate and public corporation aforesaid, from the various sources of revenue and taxation provided by law and from the county treasurer in and for the said county of Woods, state of Oklahoma, and by him, the said Martin M. Fulkerson, as such officer and treasurer, received, controlled, and held for the said city school board of the said city of Alva, and for the said school district 1, of the county of Woods, state of Oklahoma, and for the said board of education of the city of Alva, of the state of Oklahoma, in large sums, but the exact amount of the said public moneys, funds, property, securities, assets, and effects so received, had, held, and controlled by the said Martin M. Fulkerson, as such officer and treasurer aforesaid, being to your informant unknown; that on or about the said 9th day of August, A. D. 1913, .at and within the said county of Woods, state of Oklahoma, the said Martin M. Fulkerson, "then and there being, and while so acting in said office as treasurer for the said city school board of the said city of Alva, and for the said school district 1, of the county of Woods, state of Oklahoma, and for the said board of education of the city of Alva, of the state of Oklahoma, as aforesaid, and so charged and intrusted with the control, disbursement, receipt, safe-keeping, and transfer of the said sum of public money hereinafter mentioned and of the funds, moneys, property, securities, assets, and effects aforesaid, and being then and there in possession of the same by virtue of his office.and public trust as treasurer of the said city school board of the said city of Alva, and as treasurer of the said school district 1, of the county of Woods., state of Oklahoma, and as treasurer of the said board of education of the city of Alva, of the state of Oklahoma, did then and there unlawfully, willfully, wrongfully, designedly, fraudulently, stealthily and corruptly, feloniously, and without authority of law, and not in the due and lawful execution of his said trust as such officer and treasurer aforesaid, take, steal, carry away and embezzle, convert and appropriate to his own use and benefit, and to a use and purpose not in the due and lawful execution of his said trust as such officer and treasurer aforesaid, and to the use of other persons, bodies corporate, and associations to your informant unknown, but other ’than those entitled thereto, a part of said public moneys and other funds, property, bonds, securities, assets and effects, the money and property of the said body corporate and public, corporation aforesaid, received, controlled, and held by and intrusted and charged to him, the said Martin M. Fulkerson, as such officer and treasurer and by virtue of his said office and public trust as aforesaid, to-wit, the sum of $2,765.70, in good and lawful money of the United -States of America, and to the amount and of the value of $2,765.70, the said sum of money being then and there the money and property of the said body corporate and public corporation as aforesaid, of the public moneys and other funds, property, bonds, securities, assets, and effects, collected, received, had, held, and controlled by him, the said Martin M. Fulkerson, by virtue of his said office and public trust as such officer and treasurer of the said city school board of the said city of Alva, and of the said school district 1, of the county of Woods, state of Oklahoma, and of the said board of education of the city of Alva, of the state of Oklahoma, a more particular description of the said money and property is to your informant unknown, with the willful, unlawful, fraudulent, and felonious intent of him, the said Martin M. Fulkerson, to then and there permanently deprive the said city school board of the said city of Alva, and the said school district 1, of the county of Woods, state of Oklahoma, and the said board of education of the city of Alva, of the state of Oklahoma, of its said sum of money and property in the amount and of the value of $2,765.70, as aforesaid, and to convert the said sum of money and property to his own use and benefit and to a use and purpose not in the due and lawful execution of his said trust as such officer and treasurer aforesaid, and to the use of other persons, bodies corporate, and associations to your informant unknown, but other than those entitled thereto, not in the due and lawful execution of his said trust as such officer and treasurer aforesaid, contrary to the form and in violation of the statute in such case made and provided, and against the peace and"dignity of the state of Oklahoma.”

The defendant interposed a demurrer to the foregoing information, which is in form as follows:

“Comes now the defendant herein and demurs to the information filed herein for the reason:
“First. That it does not substantially conform to the requirements of the chapter of Criminal Procedure of the statutes of Oklahoma.
“Second. That more than one offense is charged in the information.
“Third. That the facts stated do not constitute a public offense.
“Fourth. That the information contains matter which, if true, constitutes a legal bar to the prosecution.”

The trial court overruled said demurrer, to which action the defendant at the time excepted, and as one of the grounds of error relied upon for reversal the action of the trial court in overruling said demurrer is urged. It is contended here that said information is duplicitous, in that it charges the crime of embezzlement both under section 7437, supra, and also under section 2671, Revised Laws 1910, which is as follows:

“If any person, being an officer, director, trustee, clerk, servant or agent of any association, society or corporation, public or private, fraudulently appropriates to any use or purpose not in the due and lawful execution of his trust, any property which he has in his possession or under his control -by virtue of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, he is guilty of embezzlement.”

It is further urged that the information is duplicitous because it charges in one count two separate and distinct crimes, embezzlement and larceny.

The court is of the opinion that neither of these contentions is meritorious. It is evident from a reading of the foregoing information that the pleader intended to charge the crime of embezzlement, as defined by section' 7437. The fact that the pleader used the words, “and not in the due and lawful execution of his trust as such officer,” which language is contained in section 2671, neither added to nor took away from the other allegations contained in said information, which follow the language of the crime as defined in section 7437. It is apparent that, if the school district treasurer committed any of the acts of conversion defined to be criminal in section 7437, his action in so doing was “not in the due and lawful execution of his trust as such officer,” and the use of such language in the information, where the pleader has followed substantially the language of the statute defining the offense, as contained in section 7437, could not be held to be misleading to the defendant. The statutes of this state prescribe the duties of a school district treasurer with reference to the disbursement of the funds of the school district coming into his hands, and an allegation in the information that such officer converted said funds to hi's own use, or to the use of any other person not authorized to receive them, is equivalent to an allegation that the same were appropriated to some use and purpose not in the due and lawful execution of his trust.

The rule is well established that the pleader is not confined to the exact language of a statute in pleading a statutory offense, but may use other words conveying the same meaning. Section 5745, Revised Laws 1910, provides:

“Words used in a statute to define a public offense need not bt strictly pursued in the indictment or information, but other words conveying the same meaning may be used."

See, also, Bowes v. State, 8 Okla. Cr. 277, 127 Pac. 883; Reed v. State, 1 Okla. Cr. 481, 98 Pac. 583, 129 Am. St. Rep. 861.

The contention that the information is duplicitous, in that it charges both embezzlement and larceny, is also without merit. The information employs language often used in charging the crime of larceny, but the .information nowhere charges all the essentials necessary to constitute the crime of larceny. The allegations of the information in this case clearly show that the possession of the property which the defendant is alleged to have taken or embezzled was lawful; the information alleging that he was “the duly elected, qualified, and acting treasurer of the school district, and as such officer he received and had in his possession and under his control by virtue of such office, public-moneys and other funds, bonds, property, securities, assets, and effects by him received and collected as such treasurer from the various sources of revenue and taxation provided by law and from the county treasurer in and for the said county of Woods, state of Oklahoma, and by him, the said Martin M. Fulkerson, as such officer and treasurer, received, controlled, and held for the said city school board of the said city of Alva.” The law imposed upon him as such officer the duty of receiving and collecting and disbursing such public funds in the manner alleged in the information; the allegations, therefore, show that his possession was lawful in the first instance. The subsequent allegations that he thereafter “took, stole, and carried away” such moneys did not have the effect of stating a larceny charge. For cases in point see State v. Adams, 108 Mo. 208, 18 S. W. 1000; State v. Lanier, 89 N. C. 517; State v. Harris, 106 N. C. 682, 11 S. E. 377; State v. Fain, 106 N. C. 760, 11 S. E. 593.

An indictment charging the offense of embezzlement in the identical language with that contained in the information above set out was urged to be duplicitous in the case of Middleton v. State, 16 Okla. Cr. 320, 183 Pac. 626, based upon section 7437, supra. In the Middleton Case, this court held adversely to such contention, the particular paragraph of the syllabus in that opinion touching this matter being as follows:

“The count of the indictment upon which the defendant was tried held to charge but one offense, and to sufficiently inform the defendant of the particular offense he was called u?w to answer.”

The conclusion is reached, therefore, that the trial court did not err in overruling the demurrer to the aforesaid information.

It is also contended that the trial court erred in overruling the demurrer to the • evidence of the state, and in refusing to advise the jury to return a verdict of not guilty.

The specific ground upon which this contention is based is stated as follows:

“That the information charged that on or about the 9th day of August, 1913, the defendant embezzled the sum of $2,765.70, and the evidence discloses that the county attorney had full knowledge and information of all the facts relative to the transaction relied upon, to wit, the alleged offense of the embezzlement of $588.86, and that the sum was alleged in the manner it was for the purpose of misleading the defendant, and the information was therefore uncertain and not direct.”

It is urged in support of this assignment that because the county attorney knew of the specific item of $588.86, which it is contended was relied upon for a conviction, the allegation in the information of a different amount of money was purposely done to mislead the defendant, and thus it brings the assignment within the purview of those cases where the indictment alleges “a more particular and definite description of a certain particular thing is to the grand jurors unknown”; when in such instances it is shown that the grand jurors did know, or should have known, the matter alleged to be unknown to them, it results in a fatal variance.

We are of the opinion that the rule contended for is not applicable to the proof in this case, and that it was not a fatal variance for the prosecuting attorney to allege an embezzlement in one sum where the proof showed distinct conversions of different sums of money by a public officer, although an election of a particular act or item of embezzlement of a sum different from that alleged in the information was relied upon for a conviction.

The rule applicable is as follows:

“Under an indictment for embezzlement, it is sufficient for the state to prove' embezzlement of any part of the amount alleged.” Walker v. State, 117 Ala. 42, 23 South. 149; Weimer v. People, 186 Ill. 503, 58 N. E. 378; Bolen v. State, 51 Neb. 581, 71 N. W. 444; Goodwyn v. State (Tex. Cr. App.) 64 S. W. 251; State v. Lewis, 31 Wash. 75, 71 Pac. 778; Secor v. State, 118 Wis. 621, 95 N. W. 942.

It is also contended in this connection that there was a fatal variance between the issues formed and the proof adduced, for the reason that the information charges the embezzlement of $2,765.70, in good and lawful money of the United States of America, while the proof, • if it shows the embezzlement of anything, is that of an order or warrant drawn by the county clerk against the county treasurer in favor of the school district of which the defendant was treasurer.

It is sufficient to state in this connection that the record does not support the contention that counsel make.

The defendant was acting in the dual capacity of cashier of the Alva Security Bank of Alva, Okla., and at the same time treasurer of the board of education of the city of Alva, commonly called school district No. 1, of Woods county, Okla. The record discloses that on the 3d day of May, 1913, the county clerk issued an order upon the treasurer of Woods county, Okla., in favor of the said school district, in the sum of $588.86. This order was turned over to the defendant. On the 16th day of May, 1913, the defendant, as cashier of the aforesaid bank, deposited the said order in said bank to his personal credit, but he exercised no act of converting this fund to his own use, or to the use of any other person, until he checked against it on the 17th day of May, 1913. His act of checking against the credit in the bank0 for an unlawful purpose amounted to a segregation of that much of the money of the school district which had come into his hands, and was a conversion of the same. Until he had so acted there was no apparent intent upon his part to convert the same to his own use. In legal effect, therefore, the conversion was of money of the school district, within the meaning of the statute, and not of any other species of property.

The rule is stated in 9 Ruling Case Law, p. 1297, as follows:

“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 the case of Territory v. Hale, 13 N. M. 181, 81 Pac 583, 13 Ann. Cas. 551, it is said:

“It is next urged that there is variance between the allegation and proof fatal to the conviction, in that the embezzlement was not of money, but of a credit in a bank where the funds of the county were deposited. It appears from the proofs that the collector and treasurer of Mora county deposited the public funds of the county in the First National Bank of Las Vegas, in San Miguel county. The collector and treasurer authorized and directed the bank in writing to pay all checks signed in a designated way by defendant out of an account which he kept in the bank as collector and treasurer. The deposit was not special, but general, and like, that of any ordinary depositor in a bank. Defendant drew a large number of checks on the bank against this account and sent them through the mails or delivered them to various persons who presented the same and received payment theréon. Defendant never had possession of any actual money, but accomplished the embezzlement, if at all, in the above manner. Does this amount to embezzlement of money?

“In the first place, it is clear that when the money of Mora county, was placed on general deposit with the bank the same became, for some purposes at least, the money of the bank, and the relation of debtor and creditor between bank and depositor arose. Bank of the Republic v. Millard, 10 Wall. [190] 155, 19 U. S. (L. Ed.) 899. But when a check is drawn there is a segregation of that much money from the general funds of the bank, which becomes the property of the depositor. This may be placed to the credit of the payee of the check, or it may be handed him in money, or otherwise disposed of as the parties may elect. But for a space of time, however short, the money of the depositor is being dealt with. And so it has been held under statutes against embezzlement of money that such embezzlement is accomplished by the drawing of a check upon a bank where such money is deposited. State v. Krug, 12 Wash. 288, 41 Pac. 126; Bartley v. State, 53 Neb. 310, 73 N. W. 744; Bork v. People, 16 Hun (N. Y.) 476; People v. McKinney, 10 Mich. 54. Contra, Carr v. State, 104 Ala. 43, 16 South. 155.

“Another view has been advanced for the same holding, to the effect that the 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 the public. We can see no impropriety in such view. The result must be salutary, and can in no way impair the rights of defendants. The holding in this case that the facts support a conviction of embezzlement of money may well rest upon either view above suggested.”

In view of the fact that the charge here is the embezzlement'of public funds, great latitude must be permitted in the description of the money or funds alleged to be embezzled, because the people exercise no close supervision over the acts of a public official and cannot, like private individuals, direct the custody of its funds at any particular moment, as was said by the Supreme Court of Kansas, in State v. Smith, 13 Kan. 274. Further in said opinion it is said:

“The proper authorities may require when to account, may 'examine the funds in his possession, but in the next hour all these funds may be changed, long before the act of embezzlement is done or the* intent is formed. To suppose that the Legislature, when they added the large class of public officers to those who might be amenable to the law for the offense of embezzlement, intended to require proof of the identity of the money embezzled, or a description of it, or from whom it was received, is to infer that they intended to enact a law the enforcement of which would be impossible.”

■ We reach the conclusion, therefore, that the evidence in this case sufficiently supports the allegation that the embezzlement was of good and lawful money of the United States, the property of the school district, and that there was no fatal variance between the allegation to that effect contained in the information and the proof adduced upon the trial.

It is also contended that “the transaction alleged to be criminal occurred at a time when the same, if committed, did not constitute a crime.”

This contention is based on the proposition that the state elected to stand and rely for a conviction on a particular act of embezzlement, which it is contended was committed, if at all, on the 16th day of May, 1913, by the defendant exchanging a warrant or order for the payment of money to the school district for credit in the Alva Security Bank; the particular contention of counsel being that, if there was an embezzlement committed, it was committed on the 16th of May, 1913, by the defendant embezzling a .warrant of the school district by reducing it to the form of credit in the bank to himself.

This prosecution is based upon section 7437, Revised Laws 1910, which became effective with the adoption of said laws, and according to the proclamation of the secretary of state, in consonance with section 2, c 75, Session Laws 1913, “from and after the 16th day of May, 1913,” and thfe contention of counsel for the defendant is that said statute did not take effect until after midnight of the 16th of May, 1913, and the only evidence supporting a conviction showed that the funds were converted, if at all, on the 16th of May, 1913, as heretofore stated, and therefore the prosecution must fail. 1

One phase of this contention has been covered in what we have heretofore said concerning the variance between the allegations of the information and the proof adduced upon the trial; the conclusion being reached that there was no act of embezzlement proved, that is, no evidence showing a criminal intent to convert the moneys of the school district to defendant’s own use was submitted to the jury for a convicition for any act committed prior to the 17th day of May, 1913.

Another view, however, presents itself, which renders the contention of counsel for defendant doubly untenable, and that is that the word “money” employed in the statute, being used in its generic sense, includes all classes of funds of the school district which were received and collected by the defendant as its treasurer. If, therefore, there was no variance between an allegation that the defendant embezzled money and proof that he converted a warrant of the district to his own use, which counsel for the defendant, for the purpose of this argument, admit the evidence supports to have occurred on the 16th of May, 1913, then if said statute was effective on the 16th day of May, 1913, the contention of defendant is groundless for this further reason.

Section 2 of chapter 75, Session Laws 1913, provides:

“Section 3 of, chapter 39, Session Laws of Oklahoma, Session 1910-1911, being House Bill No. 562 of said session is hereby amended to read as follows: ‘Sec. 3. This act shall take effect and be in force from and after the sixth day after the receipt of the secretary of one thousand copies of the Revised Laws of the State of Oklahoma, by this act adopted, and the issuance of a proclamation by the secretary announcing the receipt of said Revised Laws by him; provided, that the secretary of state shall immediately upon receipt of not less than one thousand copies of said Revised Laws of the State of Oklahoma, issue a proclamation announcing the receipt thereof, and cause the same to be immediately published in some newspaper of general circulation, published at Oklahoma City, which proclamation shall state specifically the date on which this act shall take effect.’ ”

This was the particular statute adopting the Code known as the Revised Laws 1910, including section 7437, supra.

In pursuance of said section, the secretary of state issued his proclamation, which is as follows:

“A Proclamation.
“State of Oklahoma Department of State.
“Benjamin F. Harrison, Secretary of State.
‘‘Whereas, the Fourth Legislature of the state of Oklahoma passed House Bill No. 345, which was approved by the Governor, March 22, 1913, section 2 of which is as follows : ‘This act shall take effect and be in force from and after the sixth day after the receipt by the secretary of One thousand copies of the Revised Laws of the State of Oklahoma, which this act adopted, and the issuance of a proclamation by the secretary acknowledging the receipt of said Revised Laws by him; provided, that the secretary of state shall immediately upon receipt of not less than one thousand copies of said Revised Laws of the State of Oklahoma issue a proclamation acknowledging the receipt thereof, and cause the same to be immediately published in some newspaper of general circulation published at Oklahoma 'City, which proclamation shall state specifically the date on which this act shall take effect.’
“And whereas, one thousand copies of the said Revised Laws of the State of Oklahoma have been received on this date:
“Now, therefore, I, Benjamin F. Harrison, secretary of state of the state of Oklahoma by virtue of the said act, do hereby proclaim that the said Revised Laws of Oklahoma 1910, otherwise known as the Harris-Day Code, shall be in force and effect from and after Friday, May 16, A. D. 1913.
“In testimony whereof, I hereto subscribe my name and affix the great seal of the state of Oklahoma, at Oklahoma City, this 10th day of May, A. D. 1913.
“Benjamín F. Harrison,
“[Seal.] Secretary of State.”

The question arises, therefore, as to the meaning of the .words “from and afterj” as used in said statute and the subsequent proclamation of the secretary of state declaring the same to be effective. It will be noticed in the statute that the secretary of state is required to “state specifically the date on which this act shall take effect” (referring to the Revised Laws of Oklahoma 1910). The only date mentioned in the secretary’s proclamation is the 16th day of May, 1913. True, the words “from and after” are used, but such words do not have any certain meaning so that they can be accepted as a guide under all circumstances. There are numerous cases to the effect that “from and after” a specified date (designating the date a statute is to take effect), means that it takes effect on the day named. Whittaker v. Mutual Life Insurance Co. of New York, 133 Mo. App. 664, 114 S. W. 53. In Leavenworth Coal Co. v. Barber, 47 Kan. 29, 27 Pac. 114, it is held:

“Where a statute provides that it shall take effect ‘from and after its publication,’ in computing* the time when it takes effect the day of its publication is to be in- • eluded.”

In order that no uncertainty might arise as to the particular day on which the Revised Laws should take effect, the Legislature provided that the secretary of state should issue a proclamation announcing the receipt by him of not less than 1,000 copies of said laws, and should issue a proclamation immediately stating specifically .the date on which said Code should take effect. The only date mentioned in the secretary of state’s proclamation is the “16th day of May, 1913.” The intent, therefore, clearly appears from the context of the statute and proclamation that said laws should be effective on the 16th day of May, 1913.

This view is supported by several decisions of the Supreme Court of this state, wherein it is said that said laws took effect on the 16th day of May, 1913. In re Application of State to Issue Funding Bonds, 40 Okla. 54, 136 Pac. 1104, Ann. Cas. 1916E, 399; Malloy v. Johnson et al., 40 Okla. 454, 139 Pac. 310; In re Huddleston, 75 Okla. 48, 181 Pac. 711. Also of this court in Penn v. State, 13 Okla. Cr. 367, 164 Pac. 992, L. R. A. 1917E, 668.

To hold that the Revised Laws took effect on any date subsequent to the 16th day of May would permit the secretary of state, by the use of the words “from and after the 16th day of May, 1913,” in his proclamation, to do the very thing that the Legislature by the adopting act intended clearly to prevent, to wit, confusion as to the particular day upon which the Revised Laws should take effect.

While the cases cited above do not specifically hold in the syllabi thereof that said 'Code took effect on the 16th day of May, each of said cases contains a statement in the body of the opinion that said Code took effect on that day. These cases, therefore, are at least persuasive, if not binding, as to the construction that should be placed upon this statute.

It is also contended that the trial court erred in refusing to permit the defendant to introduce proffered evidence to the effect that all the items and amounts claimed to have been embezzled had been kept by the defendant and were in a safety deposit vault at Kansas City, and were there held in trust for the school district at the time of the trial, and that defendant was, and had been, ready, anxious, and willing to pay the same over and settle with the school district as soon'as they could determine the amount due and owing to the district.

The only witnesses offered in behalf of the defendant were David L. Frazier and C. A. Giblet, both members of the school district board and residents of Alva, Okla., and neither of them connected with any banking institution or other concerns possessing safety deposit vaults in Kansas City. The record plainly shows' that whatever information they may have had concerning any such deposit of funds in a safety vault in Kansas City by the defendant was by way of a self-serving declaration to that effect by the defendant. This proffer of evidence amounted to indirect effort on the part of the defendant to get before the jury the fact that he claimed to these witnesses to still have the amount of money of the school district in his possession, or at least where he could obtain the same.

The defendant did not take the witness stand in his own behalf, and the record further discloses that his successor as treasurer of the school district demanded of him that he pay over all the moneys and return the records and other property of the school district in his, defendant’s, possession at the time he was suspended from office. This the defendant failed and refused to do, and no restoration of the funds or other property of the school district was made by the defendant even up to the time of the trial.

The alleged proffer of evidence as to the deposit of funds in a safety vault in Kansas City was properly excluded, if for no other reason, on the ground that it was in tlq.e nature of hearsay evidence as to the two witnesses by which it was offered to be proved.

The alleged proffer of evidence that the defendant was-anxious and willing to restore the funds was properly excluded because the same, if true, would not constitute a defense to the charge of embezzlement, nor be proper to be considered in mitigation of the punishment.

Section 2680, Revised Laws 1910,- provides:

“Whenever it is made to appear that prior to any information laid, before a magistrate charging the commission of embezzlement, the person accused voluntarily and actually restored or tendered restoration of the property alleged to have been embezzled, or any part thereof, such is not a ground of defense to the indictment, but it authorizes the court to mitigate punishment in its discretion.”

It is apparent, therefore, that if the actual restoration or tendered restoration of property alleged to have been embezzled constitutes no ground of defense, a fortiori the fact that the defendant was anxious and willing to do these things would be no ground of defense. But restoration or tendered restoration may be considered in mitigation of the punishment, but the evidence must show either a restoration or a tendered restoration before the commencement of the prosecution, not merely anxiety or willingness on the part of the defendant to do these things.

A certain instruction of the court is contended to be erroneous and prejudicial as invading the province of the jury in determining what the evidence shows. Said instruction was objected and excepted to in the court below upon the sole ground that it did not correctly state the law of the case.

In this court it is urged, however, that the instruction is upon the weight of the evidence. The instruction was an instruction upon the purpose for which the jury might consider the evidence of other alleged acts of embezzlement occurring during the tenure of office of the defendant as treasurer of the school district. The particular language complained of is as follows:

“You are further instructed that, although the state has been permitted to offer evidence tending to show that the defendant may have committed other acts of embezzlement during his tenure of office as treasurer prior to May 16, 1913. * * *”

The argument is advanced that because the court used the words “other acts of embezzlement” the inference arose that the defendant had and did commit the act of embezzlement for which he was charged.

We find in the record that the defendant requested the court to give an instruction upon this particular subject, in part as follows:

“You are instructed that the state has been permitted to offer evidence tending to show that defendant may have committed other and various acts of embezzlement during his entire period of office as treasurer of school district No. 1.”

It is apparent, therefore, that the trial court merely copied in the instruction given almost the identical language employed by counsel in requesting a similar instruction along the same line. If there was any error committed in giving the instruction complained of, which we do not hold, it was evidently done at the request of counsel for the defendant, and this court will not consider as reversible error anything done in the trial court which was requested or invited by the action of defendant’s counsel.

Further, it is contended that the trial court erred in giving certain instructions which permitted the jury to find the defendant guilty of an act of embezzlement other than that upon which the state elected for a conviction, and in refusing at the request of the defendant to give an instruction which limited the jury’s consideration to the particular act of embezzlement for which an election, was had.

This court has held in cases of conviction for statutory rape, the sale of intoxicating liquors, and .the like, that where evidence is introduced of other acts of sexual intercourse between the prosecutrix and the defendant, or of other sales of intoxicating liquors by the defendant to the prosecuting witness, for the various purposes, for which such acts may be shown in evidence, then it is the duty of the trial court, upon motion of the defendant, when the state rests its case, to require the state to elect upon which one of the several acts it intends to rely for a conviction, and the refusal of the trial court to require the state to elect, under such circumstances, is reversible error.

In this case, no such request was made at the conclusion of the state’s evidence. But it may be contended that in this case no such request was necessary, because the state had already made an election for an offense proven to have been committed, if at all, either on the 16th or 17th of May, 1913.

The purpose of causing the state to elect upon the particular act is to require the state to prosecute for but one offense; and it is apparent, therefore, that an election should be required prior to the time that the defendant is called upon to offer proof in defense of the charge. In this case, the only request made to the trial court by the defendant after the state had offered its evidence came at the conclusion of the defendant’s evidence also, and was in the form of a requested instruction. At this stage of the trial all the evidence was before the court, and it was apparent to the trial court that the defendant had offered no evidence whatever in defense of any alleged act of embezzlement to which the state had directed proof. The error, if any, therefore, was occasioned by the court’s refus- • ing to give the requested instruction, which occurred at the conclusion of all the evidence.

Section 6005, Kevised Laws 1910, only permits this court to reverse a judgment of convictio.n on the ground of misdirection of the jury when it is apparent from an examination of the entire record that the trial has resulted in a miscarriage of justice, or that the defendant has been deprived of some constitutional or statutory right to his prejudice. In Fowler v. State, 8 Okla. Cr. 180, 126 Pac. 831, it is held:

“Before this court can reverse a conviction upon the ground that the trial court erred in the admission or rejection of evidence, or in its instructions to the jury, we must further find from an inspection of the entire record that appellant was injured thereby; and to determine this issue the court must consider the question as to whether appellant is guilty or innocent of the offense charged.”

Numerous other cases might be cited to the same effect, but the policy of this court not to reverse a judgment of conviction for errors of this kind where the defendant has clearly been proven guilty is so universally well known that the citation of further authority or making of further comment is unnecessary.

It may be added that there are numerous and well-considered authorities to the effect that, in the trial of cases for the crime of embezzlement by public officers, the various acts of embezzlement, if more than one act be proven, are often treated as a series or general scheme to embezzle the public funds, culminating in the embezzlement of so much of the money or funds for which the officer is unable to account at the end of his term or at the time he vacates office. The reason for such rule is based upon public necessity, in that history has proven that the offense of embezzlement by public officers most always is constituted of a series of petty and continuous peculations, manifestly difficult, if not impossible, of proof, separately. So that in cases of this class a different rule as to election of offenses is established than in cases of statutory rape, the sale of intoxicating liquors, and the like, and this court could with propriety hold, following numerous authorities to that effect, that it was not error to refuse to compel an election between particular acts by the state in this case. At least the defendant would have no just room to complain of such a decision, for the reason that, all the acts having been submitted, jeopardy attaches to all of them, and the effect of the court’s action was to make but one offense out of the several transactions. The offense, being the outgrowth of a general scheme, was continuous in its nature, forming an embezzlement of that amount of money which the public officer during his term, and within the period of the statute of limitations, had, pursuant to such general scheme, finally converted to his own use or to some other use and purpose in violation of the statute. But it is not necessary to rest our conclusion solely on that theory.

In the case of Sterling v. State, 90 Miss. 255, 43 South. 952, 13 Ann. Cas. 776, the Supreme Court of Mississippi, after holding in a case of embezzlement that the trial court committed .no error in refusing to compel the district attorney to elect as to which of the single acts of embezzlement charged he would rely upon for a conviction, in the body of the opinion said:

“It is not contended by learned counsel that it was incompetent to prove as many of these different acts of embezzlement as the state could; but the insistence is upon the point we are now considering, the refusal of the court to compel the district attorney to elect as to which single one of all these different acts of embezzlement he would proceed upon, and is simply this: That, the evidence being all in, it was then the duty of the court to limit the state to the selection of one single act, and stand or fall as the proof might warrant on that act. We do not think this is the correct view of this statute. It seems to us competent for the court, since the charge is embezzlement, and since all these alternatives are merely different forms and phases of one substantive crime of embezzlement, not only to introduce all of them in evidence which it could, but use any or all of them in substantiating the substantive charge of having embezzled a balance of account of $72,000. If, however, we should be mistaken in this view, it is undoubtedly true that, standing at the close of a completed record, as we do, and looking back on a finished trial, it is perfectly manifest that, if any error was committed in the procedure in this respect, it was not reversible error, since the evidence overwhelmingly shows the appellant guilty of every single act of embezzlement shown in the testimony.”

We heartily approve of what is said by the Supreme Court of Mississippi in the closing, sentence of the excerpt above quoted. It clearly and distinctly states in a nutshell the policy controlling the decisions of this court established by the Legislature in the enactment of the provisions of section 6005, Revised Laws 1910.

We have before us here the appeal by a defendant who made no substantial defense to the merits of the prosecution in the lower court. The evidence on the part of thé state not only proved him to be guilty of the particular act cf embezzlement on May 16th or 17th, 1913, for which he claims it was error for the trial court not to limit the jury’s consideration, but it also proves him to be guilty of every other separate act of embezzlement for which the jury might have found him guilty under the court’s instructions. During his entire incumbency in the office of treasurer of the board of education of the city of Alva, he succeeded, according to the proof in this case, in converting to his use or to some other unlawful purpose the aggregate sum of exceeding $20,000, committed by a series-of peculations beginning shortly after he took office and extending nearly to the time of his suspension in August, 1913. He proved untrue to the confidence and trust imposed in him by his fellow citizens. He offered no defense, and apparently has none, to any of the particular acts or to all of them.

It would be an imposition upon the taxpaying people of Woods county and the city of Alva to reverse this case for any of the reasons urged by counsel representing defendant, and in addition it would be a plain violation of the sworn duty of this court to uphold the laws of this state by giving effect to the plain provisions of section 6005, supra.

The judgment of the trial court is affirmed.

DOYLE, P. J„ and ARMSTRONG, J., concur.


source: Caselaw Access Project

author: MATSON, J.

license: Public Domain

text:
    STATE v. T. KOLLAR.
    No. A-3023.
    Opinion Filed Jan. 31, 1920.
    (186 Pac. 968.)
    (Syllabus.)
    1. INTOXICATING LIQUORS — Unlawful Possession — Alcohol —^“Spirituous, Vinous, Fermented, anti Malt Liquors.” Alcohol is within the definition of spirituous, vinous,fermented, and malt liquors prohibited from sale, etc., within this state, and the possession of such intoxicating liquor with intent to sell the same, except in the manners specifically provided and for the purposes allowed’ by the Constitution and subsequent statutory enactments in furtherance thereof, is a crime against the laws of this state. ■ '•
    2. SAME — Information—Sufficiency. For information held to state sufficiently the facts necessary to constitute the offense of unlawful possession of alcohol with intent to sell the same unlawfully, see body of opinion.
    3. EVIDENCE — Judicial Notice — Intoxicating Nature of Alcohol. Courts will take judicial notice that alcohol is an intoxicating liquor.

      Appeal from County Court, Canadian County; R. B. Forrest, Judge.

    T. Kollar was charged with unlawfully possessing intoxicating liquors, and from a judgment sustaining a demurrer to the information, the State appeals.
    Keversed.

      S. P. Freeling, Atty. Gen., R. McMillan, Asst. Atty. Gen., and E. F. Maley, Co. Atty., for the State.

      J. I. Phelps, for defendant in error.
   MATSON, J.

On the 16th day of April, 1917, E. F. Maley, as county attorney of Canadian county, filed in the county court of said county an information against one T. Kollar, the charging part of which is as follows:

“That one T. Kollar, late of the county of Canadian and state of Oklahoma, on or about the 14th day of April, in the year of our Lord one thousand nine hundred and seventeen, at and within said county then and there being, did then and there willfully and unlawfully have possession of intoxicating liquors, to. wit, four quarts alcohol, with the unlawful intent to then and there sell, barter, give away, and otherwise furnish the same to others unlawfully, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state.”

The defendant was arrested and brought before the court, and as a plea to said information filed a demurrer upon the following grounds:

“That the same does not charge facts sufficient to show that the laws of the state of Oklahoma had been violated.
“That the same does not charge a violation of the laws.
“That the same is indefinite, uncertain as to the facts attempted to be charged.
“That the same is not drawn and presented as provided by law.”

On the 22d day of May, 1917, the said cause coming on for hearing upon the demurrer of the defendant to the information, the trial court found that said information did not state facts sufficient to constitute a public offense, and that the said demurrer of the defendant should be, and the same was, sustained. The trial court thereupon ordered and adjudged that the démurrer of the defendant be sustained, and that the defendant be discharged, to which ruling the state excepted, and exception’s were allowed, and an appeal prayed to this court, and said appeal has been properly perfected in the manner provided by law.

The question to be decided, therefore, in this appeal is a reserved question of law purely, namely: Do the allegations of the facts contained in the foregoing information constitute a public offense under the laws of this state?

The information is based upon section 3605,' Revised Laws 1910, which in part provides as follows:

“It shall be unlawful for any person, individual or corporate, to manufacture, sell, barter, give away, or otherwise furnish except as in this chapter provided, any spirituous, vinous, fermented or malt liquors, or any imitation thereof or substitute therefor; or to manufacture, sell, barter, give away, or otherwise furnish any liquors or compounds of any kind or description whatsoever, whether medicated or not, which contain as much as one-half of one per cent, of alcohol, measured by volume, and which is capable of being used as a beverage, * * * or to have the possession of any such liquors with the intention of violating any of the provisions of this chapter.”

The information charges the defendant with the possession of four quarts of alcohol, and it is the contention of the state that alcohol is included within the definition of “spirituous, vinous, fermented or malt liquors,” which are prohibited from sale, and also from possession with intent to sell.

Counsel for defendant contends to the contrary, stating in the brief filed, in substance, that the term “spirituous, vinous, fermented or malt liquors” must be construed not to include alcohol, but only of such kind of liquors as whisky, brandy, rum, gin, wine, beer, ale, and fermented cider, which contain alcohol, and are well-known intoxicating beverages, contending that it was the intention of the Legislature to prevent the sale and use of such liquors as a beverage, and not the sale of pure alcohol, and that the information is insufficient to state an offense without the additional allegation that the alcohol possessed by the defendant was such as was capable of being used as a beverage in its then condition.

The trial court concurred in the construction of the law contended for by counsel for the defendant, and sustained the 'demurrer to the information upon that ground.

It is evident upon a careful consideration of the provisions of section 3605 that the Legislature intended to prohibit the possession with intent to sell of any kind of spirituous, vinous, fermented, or malt liquors. The provision of said section “and which is capable of being used as a beverage” refers to liquors and compounds which, although medicated, contain as much as one-half of one per cent, of alcohol, measured by volume.

In the case of Sellers v. State, 11 Okla. Cr. 588, 149 Pac. 1071, this court, where the question here under consideration was not directly involved, sanctioned the seizure of alcohol as being within the purview of the statute against the possession of spirituous, vinous, fermented, or malt liquors, although the judgment in that case was reversed upon another ground. Other cases in which judgments of conviction for viQlation of the prohibitory liquor laws were involved, and in which alcohol 'constituted a part of the liquors seized, and which have been sustained on appeal by this court, might be cited, although the question of whether or not pure alcohol came within the purview of the statute was not directly passed upon; such question never having been directly raised in any previous appeal.

It is apparent, however, from a consideration of such cases, although not directly decided, that this court has in the past always considered alcohol to be within the purview of section 3605, supra, prohibiting the manufacture, sale, etc., and possession with intent to sell unlawfully, spirituous, vinous, fermented, or malt liquors..

By the prohibition ordinance separately adopted at the time of adoption of the Constitution the people of this state prohibited the sale, barter, giving away, or otherwise furnishing of “intoxicating liquors of any kind,” except as otherwise provided therein, ánd by the same ordinance it was provided that the Legislature might thereafter provide for the sale of denaturized alcohol for industrial purposes, and for the sale of alcohol for scientific purposes to scientific institutions, universities, and colleges, and also for the sale of alcohol for medical purposes and to apothecaries for purposes of compounding prescriptions and other medicines, etc. The prohibition ordinance limited the purposes for which alcohol might be sold and distributed, but left it open for future legislative action to determine the method of sale and distribution within the limitations provided.

Subsequently the Legislatures of this state have enacted statutes making effective the terms of said prohibitory liquor ordinance relative to the sale and distribution of alcohol in strict conformity with the intention of the people when adopting said prohibition ordinance; the last expression of the legislative will being contained in chapter 70, Session Laws 1910-11, p. 154.

Courts take judicial notice that alcohol is an intoxicating liquor. It forms the basic principle, the intoxicating, principle, of all spirituous, vinous, fermented and malt liquors. It is a constituent element in each of said liquors. Pure alcohol may be easily diluted so as to be capable of being used freely as a beverage. To hold that the people, in adopting the prohibition ordinance, and the Legislature, in enacting statutes to make prohibition effective in this state, intended only to prohibit the sale of such intoxicating liquors containing alcohol which were capable of being used as a beverage in the form in which sold, and did not intend to prohibit the sale of pure alcohol for beverage purposes, would open the way for persistent unlawful sales of alcohol in its original state, and would absolutely render nugatory those provisions of the Constitution and the subsequent statutes providing specifically the manner in which pure alcohol should be sold, distributed, and used within this state, to wit, denaturized alcohol for industrial purposes and grain alcohol for scientific purposes to scientific institutions, universities and colleges, and also to apothecaries for the purpose of compounding prescriptions and other medicines, etc. Said constitutional and statutory provisions relative to the sale and distribution of alcohol must be construed to exclude the sale of such product by persons unauthorized, and except in the manner specifically provided. That the defendant came within the class of persons authorized to possess alcohol for a lawful purpose would be a matter of defense not necessary to be pleaded in the indictment or information, as matters purely of defense need not be pleaded. Penn v. State, 13 Okla. Cr. 367, 164 Pac. 992, L. R. A. 1917E, 668, and cases cited.

Alcohol in any form is-the product either of distillation or fermentation. It is, therefore, in our opinion, clearly within the purview of a statute which prohibits the sale of spirituous or fermented liquors for purposes other than heretofore enumerated. .

It is the opinion of the court, therefore, that the trial court erred in sustaining the demurrer to the information in this case on the ground, that it did not state a public offense.

The trial court made no order authorizing or directing a new information to be filed 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 express authorization or direction to that effect by the trial court, see opinion of this court in State v. Vaughn, 15 Okla. Cr. 187, 175 Pac. 731.

For the reasons stated, the judgment of the county court of Canadian county sustaining the demurrer to the information in this case, for the reason that the same did not state a public offense, is reversed.

DOYLE, P. J., and ARMSTRONG, J., concur.


author: DOYLE, P. J.

text:
    D. A. COLLIER v. STATE.
    No. A-3106.
    Opinion Filed Feb. 3, 1920.
    (186 Pac. 963.)
    (Syllabus.)
    1. HOMICIDE — Aljcoholic Insanity or Incapacity (Caused by Temporary Voluntary Intoxication as a Defense. In a prosecution for murder, alcoholic insanity, or mental incapacity produced by voluntary intoxication existing only temporarily at the time of the homicide, is no justification or excuse therefor. To constitute insanity, caused by intoxication, a defense in a trial for murder, it must be insanity caused by chronic alcoholism-, -and not a mere temporary mental condition.

      Z CRIMINAL LAW — Defenses—Insanity From Chronic Alcoholism —Temporary Intoxication. Insanity, though superinduced by excessive and long-continued indulgence in alcoholic liquors and known as “delirium tremens,” or “mania a potu,” renders a person so afflicted irresponsible for his acts, if it be of -such a character as to deprive him of the mental capacity to distinguish between right and wrong, as applied to the particular act, whether he be under the influence of liquor at the time of the commission of the act or not; but, to do so, his affliction must be settled or fixed insanity, not a mere fit of drunkenness. A person, not previously laboring under suich disease or affliction, who voluntarily becomes intoxicated to such an extent and for such a period of time as to cause unconsciousness of his acts, is not irresponsible under the law for the acts done by him while in such mental condition.
    3. HOMICIDE — Degrees—Evidence of Intoxication — Question for Jury. Under Okla. Penal Code (section 2313, Rev. Laws 1910), homicide is murder “when perpetrated without authority of law and with a premeditated design to effect the death of the person killed, or of any other human being,'’'’ and evidence of intoxication is admissible to show an absence of the premeditated design to kill, for the purpose of determining whether the offense was murder or manslaughter, and a state of intoxication which will reduce homicid'e from murder to manslaughter in the first degree must be of such character and extent as to render the defendant incapable of entertaining or forming a design to effect death. And this question is for 'the jury to determine.

      4. SAME — Question of Premeditation or Malice. Intoxication, either voluntary or involuntary, is to be considered by the jury in a prosecution for murder, in which a premeditated design to effect death is essential, with reference to its effect upon the ability of the defendant at the time to form and entertain such a design, not because, per se, it either excuses or mitigates the crime, but 'because, in connection with other facts, an absence of malice or premeditation may appear.
    5. SAME — Conviction for Murder — Sufficiency of Evidence. In a prosecution for miurder. evidence reviewed, showing a predetermined purpose to commit murder, and defendant held justly convicted.

      Appeal from District Court, Pontotoc County; F. B. Swank, Assigned Judge.

      ' D. A. Collier was convicted of murder, and lie appeals.
    Affirmed.
    The information charged that in Pontotoc, county, on the 21st day of May, 1916, D. A. Collier did then and there kill one C. H. McFerron, by shooting him with a pistol.

      It appears that C. OH. McFerron, the deceased, was a pharmacist, employed in Busby’s Drug Store in the town of Allen. On the date named, Sunday afternoon, about 2 o’clock, the defendant, Collier, shot and killed C. H. McFer-ron in said drug store.
    Dr. Dullock testified that he heard the shots fired by the defendant and went immediately to the scene of the shooting. The deceased was lying on the floor between the prescription case and the end of the counter. He asked McFerron who shot him. He said, “Collier, and he did not know why 'Collier had shot him.” He found two wounds in his left side, one just below and at the left of the navel, and the other just above it. That McFerron died about 30 minutes after he reached him.
    Bently Olivo testified that he and four or five other persons were in Busby’s Drug Store; that McFerron was wrapping up a package, and defendant, Collier, was standing across the counter from him when he fired the first shot; that, as witness ran out, he heard two more shots.
    Jake Story testified that he was in Busby’s Drug Store about 1 o’clock in the afternoon, and defendant was present; that McFerron came to wait on witness, and defendant followed him, wanting to fight McFerron; that defendant said something about a gun; McFerron told him, “I have not got a gun, and there is not a gun in the house”; that this was about an hour before the killing.
    Herbert Pegg testified that he was in Busby’s Drug Store between 12 and 2 o’clock; that defendant was talking to McFerron, quarreling with him, and wanted McFer-ron to come out and fight him; defendant said something about a gun, and McFerron denied having one; defendant left the drug store with Mr. Donaghey; that he thought the defendant was drinking.
    Mr. Donaghey testified that about 45 minutes before the shooting he had gone with defendant to Busby’s Drug Store; McFerron was reading out of a Bible something about St. Peter; defendant said, “St. P'eter, hell, I want a •drink of coca cola”; that further on defendant asked Mc-Ferron if he wanted to fight; McFerron asked defendant not to start anything; about that time defendant asked McFerron if he had a gun; McFerron replied that he had not; that witness got defendant out on the sidewalk and they started home; that defendant had a bottle of whisky or white mule in his pocket, and was a little intoxicated.
    T. A. Olivo testified that he saw defendant go in the drug store and a few seconds after three shots were fired; after the shooting defendant came out and said:
    “I killed the God damn son of a bitch. Ain’t no damn man can run over me.”
    Cecil Thompson testified that he was in Busby’s Drug Store when the shooting took place; McFerron was behind the show case; Collier walked in, and when he got to where McFerron was he pulled his gun and said, “I will learn some God damn son of a bitch how to run over me.”
    Clarence Pegg testified that he was in the store at the time of the shooting; that defendant came in, drew a gun from his right side, and shot McFerron; thought the first shot missed; that the second shot took effect;, and after the third shot McFerron fell; defendant walked out of the store, whirling his pistol around, and said:
    “She is a God damn good one. I have had her 16 years and she never snapped.”

      S. C. Donaghey testified that, as the defendant came out of the store with the pistol in his hand; he heard him say, “That he had done what he intended to do when he came there.”
    For the defense, W. A. Leonard testified: That his place of business was next door to Busby’s Drug Store. That he had known defendant three or four years prior to the shooting. That on the day McFerron was killed defendant came in through the rear door of his store and sat down in a chair; was there about 10 minutes, apparently asleep. That he heard a noise like the squeaking of a chair or cocking of a gun, didn’t know which. Defendant got .up and adjusted his gun and said, “Mr. Leonard, you are a friend of mine, aren’t you?” I told him, “Yes.” That defendant walked to the front door and said, “I am going to kill the son of a bitch.” That this was less than five minutes before the killing.
    J. O. Day testified that he saw defendant about 10 o’clock in the morning; that defendant was drunk at that time; defendant tried to talk to witness but seemed tp have no control of himself; that defendant’s reputation in the community as a law-abiding and peaceable citizen when sober was good.
    Mack Lee testified that he had seen defendant in a state of intoxication on three or four occasions; that defendant seemed to be pretty reckless sometimes when drunk; that he saw the defendant on .Saturday afternoon and he was drunk at that time; saw him Sunday morning and he was very drunk; that he saw the defendant before the killing; that he did not look like a drunk man out of his eyes, but his eyes had a wild look, and the pupils of his eyes were large.

      Joe Dean testified that he saw defendant go in the Busby Drug Store between 9 and 10 o’clock; that defendant had alcohol in a grape juice bottle; that he offered a drink to witness; that he did not figure the contents of the bottle was either whisky or alcohol, but that it was some kind of poison; about 12 o’clock witness went in company with Ed Jones and M. Donaghey and tried to get defenr dant home; that he had seen defendant a number of times when he was drunk, and on this day he was crazy, or something like it, and looked wild out his eyes.
    J. F. Rogers testified he saw defendant about 12 o’clock Saturday night and defendant was drunk then; 10 o’clock the next morning he saw defendant at Busby’s Drug Store and defendant was drunk; saw him again at 11:30 and defendant was very drunk; that he had seemed to drink so much that he did not realize what he was doing; that he went with defendant back of the blacksmith shop and drank some alcohol; then they both went into the drug store and had a talk with McFerron; defendant wanted to get some coca cola and fix a drink in the drug store; Mc-Ferron objected,' but gave defendant some syrup and water and told him to fix it; defendant mixed up’ the stuff, and they both drank it in there; that after this he drank with defendant at Jones’ Barn from a quart of whisky half full; that, he did not think that defendant knew what he was doing.
    Bud Tyson testified that he was a son-in-law of the defendant, and on Saturday night prior to the killing, defendant was drunk.
    Dr. S. P. Ross testified that he was a practicing physician in active practice 19 years, but had no special train-hg in mental diseases; that a man who is insane would not kuow right from wrong, whether suffering from alcoholic insanity or anyother form of insanity.
    Mrs. Collier, wife of the defendant, testified they were married 21 years; that during these years her husband drank a great deal; that on Saturday night he came homo intoxicated; the next morning between 8 and 9 o’clock he went Jowntown; about 12 o’clock he came back and was drunk; walked the floor and talked all kinds of crazy talk and in shout 20 minutes went back to town; returned in about an hour and said he had killed McFerron.
    As a witness in his own behalf, defendant testified:
    I am 40 years old, I have lived with my family at Allen for the past 5 years. Was in the well-drilling business at Allen. Have known Mr. McFerron about 2 years. Our relations -were friendly. Have used alcohol and whisky in excess since living at Allen. On Saturday before the killing I worked around the house and some in the garden. Went up in town in the afternoon to Busby’s Drug Store and had Mr. McFerron fix me up a drink of coca cola and alcohol at the soda fountain. Asked him to take a drink, and he took a root beer. I paid him 15 cents for the drink and a nickel for the root beer. I bought two or three dollar bottles that evening from him. I got some whisky from other parties. I cannot recollect who right now; everybody in Allen sold whisky. I went home about 1 or 2 o’clock. I was pretty full. After breakfast I walked up town to get a drink at Busby’s Drug Store. McFerron was there, and I bought a bottle of mule. I mixed it with syrup and water that McFerron gave me in another botttle. Drank the alcohol with Mr. Rogers and found a grape juice bottle' and went back to Mr. Ferron and had him to fill it. He charged me $2 for it, and I paid him. McFerron said, “Pour the small bottle out full and come back and get the rest of this directly,” which I did. I went out and drank this. Some One drank with me, I would not be positive who it was. Then I went back after my larger bottle. It w¿s somewhere near 10 or 10:30. When I went in, I motioned McF'erron back behind the prescription counter, as T usually did. ‘ I wanted to get my bottle, and he said: “Collier, what in the hell are you trying to do with me this morning? Are you trying to get my job or have me thrown in jail?” I said: “Mac, I am surprised at y<>u. I would not do anything like that.” And he said, “Let that bottle sit where it is.” I said: “I won’t'leave it there. I have paid you for it.” He said: “You are fixing: to get drunk. I have sold you all I could this morning.” And he hit at me and knocked .me on my face and knocked my hat down, and he said, “Get out of here, you .son of a bitch,” and he reached for the drawer and said, “God damn you, I will kill you if you don’t,” and I said, “Don’t shoot me, I haven’t done anything to be shot for.” I put the bottle in my pocket, and he said, “Get out,” I said, “I am going,” and I proceeded to 'go. I went down to the livery stable and took a drink out of this bottle, and some one else took a drink out of it. I cannot recollect, it seems like I offered Joe Dean a drink or gave him one. In fixing the bottle, McFerron said: “I am out of syrup. I can put coca cola in it and it will make it red.” I said, “That will make no difference.” I took one drink. I don’t remember drinking any more. The first thing I remember meeting Mr. M. Donaghey and another gentleman.
    His further examination was as follows:
    “Q. You heard the young man testify here this morning about you coming in while the deceased was reading a Bible? A. Yes, sir; I heard him.
    “Q. You recall that? A. No, sir; I cannot.
    “Q. Well, you finally went back to Busby’s Drug Store, did you? A. Well, I don’t remember, seems like that is where I met Mr. Donaghey.
    “Q. You know how you came down to the drug store when you killed him ? A. I cannot say how I came to go in there no more than I just walked in as being a hold out place where I had often been in. I cannot recall- coming in there. I can recall shooting at him.
    “Q. You remember about the shooting, do you? A. Yes, sir, well, it is sort like a dream to me, but I remember shooting. I thought the first thing struck me that Mac had started down behind the show case for his gun when he looked at me the best I can recall, flushed me in the face, and I thought he was aiming to shoot me.
    “Q. Was he doing anything? A. He was fooling with some packages as I walked up, he was standing there, and about the first thing I recollect Mac lunged this way, looked at me wild, and I commenced shooting at him.
    “Q. Why did you shoot? A. I thought he would shoot me. I thought he was fixing to the best I can recall of the circumstances.
    “Q. Do you know how many times you shot? A. No, sir; I do not. I could not say.
    “Q. That is your pistol there, is it? A. Yes, sir; I am positive it is my gun.
    “Q. Well, you know when you got your gun? A. I do not know how come me with it.
    “Q. You remember where you went after the shooting?”
    Dr. J. A. Dean testified that the condition which produces alcoholic insanity is temporary; that it is due temporarily to a congestion of the brain; that when any man gets drunk and does incoherent things, things he naturally would not do, he is temporarily insane; that a man that temporarily gets drunk is temporarily insane. He was then asked:
    “Q. Doctor, I will ask you if it is possible, where a man starts in drinking one day and continues in the afternoon and night, and up until the next day, drinking whisky and alcohol, and if he had been addicted to the drink habit many years and was a man 40 years old, if it would be possible under these conditions for insanity to result from it so there would be a total dethronement of his reason? A. Yes, sir; I think so.”
    In rebuttal, the state called Dr. A. D. Young, professor of mental and nervous diseases on the faculty of the medical department of the University of Oklahoma, who qualified as an expert alienist, who testified that—
    “Acute alcoholism is what is ordinarily known as a drunk. It first stimulates and then stupefies the nerves. An insane man is one who does not realize his environment and is' out of harmony with his environment. The definition of insanity is rather a hard thing to give.to cover all cases, for the simple reason we have to contend with, delirium and coma and unconsciousness and sleep and walking in sleep.”
    ■His answer to a proper hypothetical question was:
    “A. I would say he was sane.”
    His cross-examination was, in part, as follows:
    “Q. If you should take a case where a man 40 years of age, who had drank more or less all of his life, had been on periodical sprees for the last 25 years, and then for the past 8 or 4 years if he had increased his drinking to a great extent and become almost or rather a confirmed drunkard, got on a spree every two or three weeks — would it or not be possible for him to become instantly insane from one of those sprees ? A. No. sir.”
    Dr. A. K. West, head of the medical department of the State University of Oklahoma, in answer to a proper hypothetical question said:

      “A. I would say he was sane. That under the conditions stated the defendant was evidently drunk.”
    Mose Strickland testified that between 11 and 12 o’cloek before the shooting he met defendant at Jones’ Livery Barn, and they walked down the street together and up the stairway of the courtroom; that defendant had a quart bottle of whisky about two-thirds full, and they both took a drink.
    The record covers 400 pages, but the foregoing is in substance the material testimony upon which the verdict is based.

      Guy L. Andrews, Frarnk G. Andrews, H. M. Carr, and King & Crawford, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen. for the State.
   DOYLE, P. J.

(after stating the facts as above). Plaintiff in error, D. A. Collier, was informed against for the murder of C. H. McFerron, and upon his trial was found guilty of murder and his punishment fixed at imprisonment for life at hard labor.

From the judgment of conviction, an appeal has been duly prosecuted to this court.

The errors assigned are based upon exceptions taken to the rulings of the court upon evidence offered and rejected, and upon instructions given to the jury as to the law of the case, all of which, after verdict, were set out as grounds of a motion for new trial:

Unlike as is usual in such cases, there is not much conflict of testimony. The evidence is undisputed that the defendant entered the drug store where the deceased was employed as a pharmacist, and without warning shot and killed him.

When the homicide is admitted, justification in self-defense, or excusable by reason of insanity, are almost invariably relied upon as defenses. Both of these defenses, as we gather from the briefs, were interposed in this case. The instructions of the court submitted the issue of murder and of manslaughter in the first degree and fully covered the law of self-defense and the defense of insanity. After a careful consideration of the whole case, we do not think the evidence required instructions upon the law ot self-defense, and with greater reason we think that there is not even a pretense of insanity legitimately raised by the facts in evidence. Qn the contrary, they clearly negative such defense.

It is evident, if the defendant’s mind was affected, it was the result of his voluntary intoxication.

The principle is everywhere recognized that voluntary intoxication is no justification or excuse for crime, and is no excuse for homicide, though carried to the extent of producing incapacity to control the mind and will.

Our Penal 'Code provides:

“No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his having been in such condition.” Section 2095, Rev. Laws 1910.

Under our Penal Code (first subdivision, section 2313, Rev. Laws 1910), “homicide is murder * * * when per petrated without authority of law and with a premeditated design to effect the death of the person killed, or of any other human being,” and evidence of intoxication is admissible, not because per se it either excuses or mitigates the crime, but because, in connection with other facts, an absence of malice or premeditation may appear, and intoxication is to be considered by the jury in a prosecution for murder in which the premeditated design to effect death is essential with reference to its .effect upon the ability of the defendant at the time to form and entertain such a design.

In Cheadle v. State, 11 Okla. Cr. 566, 149 Pac. 919, L. R. A. 1915E, 1031, it is said:

“Alcoholic insanity, or mental incapacity produced by voluntary intoxication, existing only temporarily at the time of the commission of the homicide, is no excuse or defense in a prosecution therefor. Drunkenness is one thing, and the disease of the mind to which drunkenness leads is a different thing. Temporary insanity, occasioned immediately by drunkenness, does not destroy responsibility for crime where the defendant, when sane and responsible, voluntarily makes himself drunk. To constitute insanity, caused by intoxication, a defense to an indictment or information for murder, it must be insanity caused by chronic alcoholism, and not a mere temporary mental condition. The distinction between a fit of drunken frenzy or madness, commonly called ’delirium tremens,’ and temporary delusional insanity, a disease caused by excessive and long-continued indulgence in alcoholic liquors, technically called ‘delirium treonlens,’ or ‘mania a potu,’ is well defined by the authorities and text-writers. See State v. Kidwell, 62 W. Va. 466, 13 L. R. A. (N. S.) 1024, 59 S. E. 494; Wharton & S. Med. Jur. § 940.”

In Miller v. State, 9 Okla. Cr. 55, 130 Pac. 813, it is said:

“At most, a state of intoxication rendering the defendant incapable of forming a criminal intent would only reduce murder to manslaughter.”

Where intoxication is resorted to for the purpose of blunting moral responsibility, it only increases the culpability of the defendant, and a state of intoxication which will reduce the degree of homicide from murder to manslaughter in the first degree must be of such character and extent as to render the defendant incapable of entertaining or forming a design to effect death, and the question is for the jury to determine. A person who commits a homicide while so intoxicated as to be incapable of forming a premeditated design to kill, if he formed no purpose to commit the crime prior to the time he became so intoxicated, is not guilty of murder, but is guilty of manslaughter in the first degree. In this case, upon this issue, the jury under proper instructions found against the defendant, and as we think properly so. The undisputed evidence is that the deceased, in answer to the defendant’s question about an hour before the killing, stated that he was unarmed, and that he did not have a gun in the store; that after this the defendant announced that he was going to kill McFer-ron, “that he had done what he intended to do when he came there,” that his pistol was a good one, had it 16 years, and it had never snapped, then went home and told his wife he had killed McFerron. It is true that the defendant testified that he purchased alcohol from the deceased on the day of the homicide; however, in this testimony he is uncorroborated. Upon the whole case we think the evidence is so conclusive as to the guilt of the defendant that nothing can be said in his defense.

There can be no doubt that this crime is murder. The jury had the right to decree his death, but chose the more merciful punishment.

Finding no material error, the judgment of the district of Pontotoc county is affirmed.

ARMSTRONG and MATSON, JJ., concur.


text:
    DAYTON WOODY et al. v. STATE.
    No. A-3368.
    Opinion Filed Feb. 7, 1920.
    (186 Pac. 1100.)
    (Syllabus.)
    LARCENY — Evidence—Sufficiency. In a prosecution for cattle theft, the evidence carefully considered, and found to fully support the verdict rendered, and an examination of the record discloses that the trial was free from error.

      Appeal from District Court, Craig County; Preston S. Davis, Judge.

    Dayton Woody and Will Martin were convicted of cattle theft, and they appeal.
    Affirmed.

      Clyde McGary, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The information in this case charges that Dayton Woody and Will Martin, in Craig county, on the 3d day of May, 1917, did take, steal, and carry away four cows, one heifer, and one steer, the personal property of Fred Smith, F. M. Smith, and Nellie Smith, of the total value of $300. They were jointly tried. The jury found them guilty and fixed the term of their imprisonment in the penitentiary at two years. Judgment and sentence ac-eordingly. Appealing therefrom they assign as error the following: Overruling their motion to quash the information and the demurrer thereto; the admission of certain evidence; the giving of certain instructions and the refusal to give certain instructions; and that the verdict is contrary to the law and the evidence. No brief has been filed. The case was submitted on the record.

Notwithstanding the failure to file a brief, we have examined and read the entire record. The objections to the information based upon the alleged insufficiency thereof shows the attack to be groundless, and it is unnecessary to discuss the same. There was no exception taken to any ruling of the court at the trial, except in refusing to advise the jury to acquit on the defendants’ motion when the state rested its case. If the evidence for the state was true, it proves conclusively that the defendants were guilty of the crime charged. Notwithstanding the fact that the defendants testified in their own behalf that the alleged stolen cattle followed a herd of cattle that they were driving along the road, it appears that the cattle were found in the possession of the defendants 25 miles from the place they were taken from, and one of the defendants resided on a place adjoining the pasture the cattle were taken from. Two or three witnesses testified as to seeing the defendants driving the cattle. As we have so often said, this court, when considering a case on appeal, is not empowered to weigh conflicting evidence or pass upon the credibility of witnesses. The instructions of the court fully covered the law of the case and were-as favorable to the defendants as the law warranted.

Finding no reversible error in the record, the judgment of the district court of Craig county is affirmed.

ARMSTRONG and MATSON, JJ., concur.