text:
    DANIEL D. GRACY v. STATE.
    No. 2735.
    Opinion Filed July 21, 1917.
    (166 Pac. 442.)
    1. RAPE — Violente—Resistance—Evidence. Under an information for rape wliicli alleged that the defendant committed the offense by “force and violence overcoming the resistance of the prosecutrix” as set foctli in .subdivision -l, sec. 2414. Iiev. Raws 1910, evidence is admissible that the offense was committed by means of an intoxicating narcotic administered to her by the defendant or with his privity as set forth in subdivision 6 of said section.
    2. TRIAL — Instruction—Separate Offense. ■ The trial court gave the , following instruction: “You are further instructed that all persons concerned in the commission of a crime, whether they directly commit the act constituting the offense or aid and abet in its commission, are principals; and in this connection you are instructed that if you find and believe from the evidence beyond a reasonable doubt that Gordon Chamberlain committed the crime of rape in either of the degrees defined in these instructions, upon the person of the prosecutrix, and that the defendant herein aided and abetted or assisted in any way in the commission of such offense, then you will find him guilty of such crime as you may find beyond a reasonable doubt was committed by the said Gordon Chamberlain.” Held erroneous, as when considered in connection with the other instructions given it authorized the jury to convict the defendant, not only for the offense charged in the information upon which the staté relied for a conviction, but also of another separate and distinct similar offense not relied upon by the state.
    3. SAME. The giving of the foregoing instruction in this case had the effect of placing the defendant upon trial for two separate and distinct offenses at. one time over his objection and exception thereto. The defendant may only be required to defend against one offense at a time.

      Appeal from District Court, Beaver County; W. G. Croio, Judge.

    Daniel D. Gracy was convicted of the crime of rape in the second degree and sentenced to imprisonment in the pénitentiary for a term of five years, and appeals.
    Reversed and remanded, with directions.

      Loofbourrow '& Rizley and J. W. Culwell, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan', Asst. Atty. Gen., for the State.
   MATSON, J.

The information in this case charges the defendant with the crime of rape by force, overcoming the resistance' of the prosecutrix, as set forth in the fourth subdivision of section 2414, Rev. Laws 1910, which under our statutes is designated as rape in the first degree. The conviction was for rape in the second degree, and the evidence adduced upon the trial in behalf of the state, if believed by the jury, was, in the opinion of the court, sufficient to sustain a conviction under the sixth subdivision of said section 2414, supra, where by reason of the administering by the defendant, or with his privity, of an intoxicating narcotic the prosecutrix was rendered insensible or unconscious to such an extent that she was incapable of consenting to the act or offering determined resistance thereto.

It is contended, however, by counsel for the appellant that because the information charges “rape by force overcoming resistance,” and the jury convicted the defendant of rape in the second degree as defined in the sixth subdivision of the section, there is a fatal variance between the allegations in the indictment and the proof introduced at the trial which is sufficient to cause a reversal of this judgment. With, this contention of counsel we are unable to agree. Section 5922, Rev. Laws 1910, provides:

“Whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty.”

Section 5023, Id., provides in substance that the jury may find the defendant guilty of an offense the commission of which is' necessarily included within that of which he is charged. Under the English statute and those of'the various states in conformity therewith, where it was charged against the defendant that the crime was committed without the consent and against the will of the prose-cutrix, it was competent to prove that the prosecutrix was prevented -from resisting or giving consent by reason of threats of great bodily harm, accompanied by apparent power of execution, or that she was prevented from resisting by reason of having been furnished with or administered an intoxicating narcotic by the accused, ’ or with his privity. Subdivisions 4, 5, and 6 of section 2414, btipra, are clearly related to each other, and where the indictment or information charges that the act was accomplished by force overcoming the resistance of the prose-cutrix, the proof may show that the act was committed under the circumstances set forth, in either subdivision 5 or subdivision 6 of the statute.

In the case of Wines v. State, 7 Okla. Cr. 450, 124 Pac. 466, where the information charged “rape in the first degree committed by force,” as defined in subdivision 4, there was evidence introduced upon the trial which clearly showed that if the defendant was guilty at all of rape, he was guilty of rape in the second degree under the circumstances set out in the fifth subdivision of the statute. The defendant requested an instruction based upon said fifth subdivision, and this court held that it was error to refuse such requested instruction under the facts in that case. The holding, therefore, was equivalent to a holding that, where the indictment charged rape under the fourth subdivision of the statute, the evidence might establish the crime under the fifth subdivision.

The California and the Oklahoma statutes defining rape are practically identical. In the case of People v. Snyder, 75 Cal. 323, 17 Pac. 208, the identical question here raised was decided. In that case it was held:

“Under an information for rape, which alleged that the defendant committed the offense ‘by force and violence’ and against the will of the prosecutrix and did ‘feloniously ravish’ her, evidence is admissible that the offense was committed by means of an intoxicating or narcotic substance, administered to her by the defendant.”

In the body of'the opinion it is said:

“This contention is that, while the information charges the crime to have been committed by force, violence, etc., the • proof shows that it was committed, if at all, by means of an intoxicating or narcotic substance; administered to the prosecuting witness by the accused, an,(I that under section 261 of the Penal Code an information charging the crime to have been committed by force cannot be supported by proofs showing it to have been committed by fraud or artifice. The common-law definition of rape was ‘the carnal knowledge of a woman forcibly and against her will.’ 4 Bla. Com. 210. And the indictment was substantially in the form of the information in the case at bar. And through decisions made from time to time, it gradually came to be the settled law, although there are cases to the contrary, that under such an indictment it was competent and sufficient to prove that the act charged was committed upon a child of tender years, incapable of consent; upon a lunatic or insane woman; by intimidation; when the woman was unconscious of the nature of the act; by the administration of intoxicating or, narcotic substances; by false personation of a husband, etc. The criminal law of this state followed the common-law definition of the crime down to the adoption of the Codes. Hittel’s Gen. Laws, sec. 1449. Section 261 of the Penal Code commences as follows: ‘Rape is an act of sexual intercourse accomplished with a female not the wife of the perpetrator, under either of the following circumstances.’ Then,follow six subdivisions, which recite substantially the things which, as above briefly indicated, could be proven under the general common-law indictment. And the position taken by appellant really is that the indictment and the proof must follow and be confined to one of the six subdivisions of the section. We think the true construction of section 261 to be that thereby the Legislature meant merely to put beyond doubt the rule that on an information for rape the things mentioned in the subdivisions could be proven, and would establish the crime. It is not intended to alter or establish a rule of pleading, or to create, six different kinds of crime. Now, as before the adoption of the Code, under an indictment- similar to the information in this case, any of the matters mentioned in section 261 may be proved. They are included in the words ‘by force and violence, and against her will,’ and ‘did feloniously ravish,’ as fully now as' they were then.”

In the case of Commonwealth v. Burke, 105 Mass. 376, 7 Am. Rep. 531, a similar question arose as to the construction to be given the Massachusetts statute. In that case the court said:

“The earliest statute of Massachusetts upon the subject was passed in 1642, and, like the English Statutes of Westminister, used ‘without consent’ as synonymous with ‘against her will,’ as is apparent upon reading its provisions, which were as follows: (1) ‘If any man shall unlawfully have carnal copulation with any woman child under ten years old, he shall be put to death, whether it were with or without the girl’s consent.’ (2) ‘If any man shall forcibly and without consent ravish any maid or woman that is lawfully married or contracted, he shall be put to death.’ (3) ‘If any man shall ravish any maid or single woman, committing carnal copulation with her by force, against her will, that is above the' age of ten years, he shall be either punished with death, or with some other grievous punishment, according to circumstances, at the discretion of the judges.’ 2 Mass.. Col. Rec. 21. Without dwelling upon the language of the first of these provisions, which related to the abuse of female children, it is. manifest that in the second and third, both of which related to the crime of rape, strictly so called, and differed, only in the degree of punishment, depending upon the. question whether the woman was or was not married or engaged to be married, the Legislature used the words ‘without consent,’ in the second provision, as precisely equivalent to ‘against her will,’ in the third. The later revisions of the statute have abolished the difference in •punishment, and therefore omitted the second provision, and thus made the definition of rape in all cases the ravishing and carnally knowing a woman ‘by force and against her will,’ in the third. Mass. Col. Laws (Ed. 1660) 9; (Ed. 1672) 15; Mass. Prov. Laws, 1692, 1693. (4 W. & M.) c. 19, sec. 11; Mass. Prov. Laws 1697 (9 W. III) c. 18; State Ed. 56, 296; St. 1805, c. 97, sec. 1; Rev. St. c. 125, sec. 18; Gen. St. c. 160, sec. 26. But they cannot, upon any proper rule of construction of a series, of statutes in pari materia, be taken to have changed the description of the offense. Commonwealth v. Sugland, 4 Gray [Mass.] 7; Commonwealth v. Bailey, 13 Allen [Mass.] 541, 545. We are therefore unanimously of opinion that the crime, which the evidence in this case tended to prove, of a man’s having carnal intercourse with a woman, without her consent, while she was, as he knew, wholly insensible so as to be incapable of consenting, and with such force as was necessary to accomplish the purpose, was rape. If it were otherwise, any woman in a state of utter stupefaction, whether caused by drunkenness, sudden disease, the blow of a third person, or drugs which she had been persuaded to take even by the defendant himself, would be unprotected from personal dishonor. The law is not open to such a reproach.”'

See, also, thé following: People v. Crosby, 17 Cal. App. 518, 120 Pac. 441; People v. O’Brien, 130 Cal. 1, 62 Pac. 297; People v. Vann, 129 Cal. 118, 61 Pac. 776; Berry et al. v. State, 4 Okla. Cr. 202, 111 Pac. 676, 31 L. R. A. (N. S.) 849; Adams v. State, 5 Okla. Cr. 347, 114 Pac. 347.

It is also contended that the court erred in giving the following instruction:

“(4) You are further instructed that all persons •concerned in the commission of a. crime, whether they directly commit the act constituting the offense or aid and abet in its-commission, are principals; and in this connection you are instructed that, if you find and believe from the evidence beyond a reasonable doubt that Cordon Chamberlain committed the crime of rape in either of the degrees defined in these instructions, upon the person of the prosecutrix, and that the defendant herein aided and abetted or assisted in any way in the commission of such offense, then you will find him guilty of such crime as you may find beyond a reasonable doubt was committed by the said Gordon Chamberlain.”

It is contended that this instruction authorized the jury to convict the defendant of either first or second degree rape if they believed from the evidence beyond a reasonable doubt that Gordon Chamberlain committed the crime in either of the degrees.

It is contended that the information makes no.men-, tion of Gordon Chamberlain, and that there was no contention upon the part of the state which would indicate to the defendant that he was being tried for the crime of aiding and abetting said Gordon Chamberlain in the commission of the crime charged.

Under our statutes if the defendant conspired with another to commit the crime of rape by the administering of intoxicating narcotics for the purpose of rendering the prosecutrix incapable of resisting the act or consenting thereto, and said act was thereby accomplished by such other person, it was unnecessary to charge such defendants jointly with the offense. Under such a state of facts each would bé a principal, and, as such, could be separately indicted or informed against for the act charged. Section 2104, Rev. Laws 1910.

In this case the defendant was charged with the commission of the crime, and the evidence of the state in chief was confined to proving that this defendant directly committed the act charged. However, during the progress of the trial it developed from the testimony of the prosecutrix, and also that of Gordon Chamberlain in behalf of the defendant, that the said Chamberlain had under like circumstances committed an act of sexual intercourse with the prosecutrix a short time before the prosecutrix claims that this defendant ravished her. There was proof, therefore, of two separate and distinct offenses, if offenses at all. The evidence as to the act of Chamberlain was brought out on the cross-examination of the prosecutrix. The state did not rely upon said act for a conviction of this defendant as an accessory before the fact of that crime, but confined its evidence to proof of the act charged in the information as that committed by the defendant himself. Had the act committed by Chamberlain alone been relied upon by the state for a conviction, and the state’s evidence been confined thereto, then this record would have accorded this defendant a protection against a subsequent prosecution for aiding and abetting Chamberlain in the commission of his alleged sexual act; but a person may not be put upon trial for one alleged criminal act, upon which the state relies and supports by evidence, and be convicted of a separate and distinct criminal act not relied upon, although evidence of the latter act may be admissible as part of the res gestae of the act charged.

It has never been held by this court, or by any other appellate court with whose decisions we are familiar, that an accused may be put upon trial for the commission of one offense and the jury, by the court’s instructions, be authorized to convict him either of that offense or of a similar separate offense not relied upon by the state, not included within the offense charged, although evidence of the commission of such separate and similar offense was competent to be introduced. But this the jury was specifically authorized to do by instruction No. 4, supra, given by the court in this. case. Under said instruction, and the others given, the jury returned a general verdict of guilty of rape in the second degree. Therefore this court is unable to determine whether this plaintiff in error was convicted for the alleged crime of rape accomplished by him personally, which act the state relied upon, or for aiding and abetting the said Chamberlain in ravishing the prosecuting witness, which the trial court erroneously authorized the jury to do. The instructions -of the court had the effect of placing the defendant upon trial for two separate and distinct offenses at the same time. Under our Constitution and statute he may only be required to defend against one offense at á time. The giving of such an instruction was prejudicial and in violation of the accused’s substantial rights. It was unauthorized by the issues, and is such error as to require a reversal of this judgment.

Other alleged errors are relied upon for a reversal, among which is the' insufficiency of the evidence to sustain a conviction. The evidence' is conflicting, but if the jury believe that of the prosecuting witness to the exclusion of the defendant’s testimony, and that of his witnesses, it is sufficient to support the judgment had the court’s instructions been properly confined to the issues. The other errors relied upon are not such as will likely occur upon a retrial of the cause. The judgment of the trial court is reversed, and the cause remanded for further proceedings in accordance with this opinion.

The warden of the penitentiary ■ is directed to deliver the said Daniel D. Gracy into the custody of the sheriff of Beaver county, Okla., upon proper demand to be returned to said county for another trial of this cause.

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


source: Caselaw Access Project

author: MATSON, J.

license: Public Domain

text:
    DICK MONTGOMERY v. STATE.
    No. A-2700.
    Opinion Filed July 21, 1917.
    (166 Pac. 446.)
    1. APPEAL AND ERROR — Record—Incriminating Evidence — Docu- . mentary Evidence. Where it is contended that the accused was compelled in violation of section 21, art. 2, Constitution, to give evidence which tended to incriminate him by reason of the production of the original copy of an alleged forged deed which formed the basis of the charge against him, pursuant' to an order of court to produce same, it must affirmatively appear from the record • that the accused himself was compelled to produce or give such evidence.
    2. SAME — Estoppel. Where the accused takes the witness stand in his own behalf and testifies that he never had in his possession the original copy of the alleged forged deed, which had theretofore been produced, he will not be permitted in this court to assert a claim that he was compelled to produce it.
    3. CRIMINAL LAW — Incriminating Evidence — Personal Privilege. Where defendant demanded a severance and was separately tried, the production of an alleged forged deed by one of his co-defendants not upon trial was not in violation of the constitutional privilege (section 21, art. 2, Const.) of the defendant on trial not to be compelled to give evidence tending to incriminate him. The privilege of noneompulsion is a personal one.
    4. EVIDENCE — Other Offenses — Guilty Knowledge or Intent— Scheme or Plan. Evidence of the forgery of another deed by the accused in connection with his co-defendants is admissible when it tends to prove some element of the one charged, as when it shows or tends to show guilty knowledge or intent in the commission of the offense charged, also when it tends to establish a single scheme or plan embracing the commission of two similar offenses so related to each other that proof of one tends to connect the defendant with the commission of the other.

      Appeal from. District Court, Atoka County; J. H. Linebaugh, Judge.

    Dick Montgomery was convicted of the crime of forgery, and he appeals.
    Judgment affirmed.

      Jones & McCasland and Utterback & MacDonald, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

Dick Montgomery, the plaintiff in error, was convicted in the district court of Atoka county of the crime of forgery, and was sentenced to serve a term of eight years in the state penitentiary. From this judgment of conviction he has appealed to this court, and relies upon two alleged errors which it is claimed are sufficient to reverse the judgment.

It appears that James and Oliver Boatright were Choctaw freedmen, and as such had been allotted certain lands in the Choctaw Nation. No patent to these lands had been issued to either of them. At about the inception of statehood, or a short time prior thereto, the said Boatrights had committed some offense and had become fugitives from justice. This fact became generally known in the vicinity where they had selected allotments. It appears from the evidence' that one C. A. Temple and this defendant, Dick Montgomery, conceived the idea of procuring a couple of other negroes to impersonate the Boatrights and have them make deeds to the said Temple and Montgomery to the. lands theretofore selected by and allotted to the said Boatrights. In pursuance of this plan, a' negro by the name of Edmund Gardner was obtained, and he, in turn, secured another negro by the name of Wm. Keel. These two negroes in turn respectively impersonated James Boatright and Oliver Boatright, and made deeds to the said. Temple and Montgomery to such allotments. Gardner signed the name of James Boat-right, and the deed was executed and acknowledged in Bryan county, Okla. A few days thereafter Keel- signed the name of Oliver Boatright, and the deed was executed before a notary public in ■ Tushka, Atoka county, Okla. It was for the latter forgery that this defendant was convicted.

It is contended, first, that the court erred in re-quii-ing this defendant to produce and deliver to the prosecuting attorney a certain deed which, it was alleged in the information, the defendant had forged. Concerning this assignment of error it is to be noted that the information charged this defendant jointly with G. A. Temple, Edmund Gardner, and Wm. Keel with the forgery of the deed in question. Some time prior to the-calling of this case for trial the county attorney of Atoka county served notice upon counsel for all of these defendants to produce the original deed before the trial. In pursuance of this request, and because of the fact that sahl deed had not been produced, the attention of the trial court was'directed to said notice, and the following proceedings were had:

“Mr. Clark: We now request that if the defendant’s counsel has the original deed in their possession, dated May 1, 1915, executed by one Oliver Boatright to C. A. Temple and D. .Montgomery and acknowledged by Oliver Boatright before H. C. Collier on the 15th day of May, 1915, recorded on the 18th day of May, 1915, at 12 o’clock in Book 34 at page 75 of Deeds, being the following described land, to wit:' The northeast quarter of the southeast quarter of section 7, township 4 south, and range 14 east, containing 40 acres, more or less.
“Mr. Utterback: The defendant objects to the request of the county attorney and moves the court to instruct the county attorney to not make that request, and especially not make it in the presence of the panel from which the jury will be selected to try this case, and the defendant now refuses to state whether or not he has said deed on the grounds that he cannot be requested to produce any evidence of any instrument whatever to be used as evidence in this case against him.
“The Court: The request at this time is not being made in the presence of the panel of the jury, hut privately to the court. The court grants the request of the county attorney and directs the defendants or their attorneys to deliver possession of the instrument called for in the motion if they have it in their possession.
“Mr. Haile: And if they don’t have it to so state.
“The Court: Well, if they have it—
“Mr. Utterback: The defendants except to this ruling of the court, and one of his counsel, who has the deed, presents it to the county attorney, in compliance with the order of the court, and only because o'f the order of the court. (Copy of this instrument at page 155.)”

Therafter a severance was demanded by this defendant, and a separate trial granted to him. During the trial the state, over the objection of this defendant, introduced in evidence the original deed, which had been obtained pursuant to the order of court aforesaid, and it is contended that the defendant in this case was compelled to give evidence which tended to incriminate him in violation of section 21 of article 2 of the Constitution of this state. It will be seen from the foregoing proceedings that it does not appear from the record that this particular defendant was compelled to produce this deed or that he at any time ever had possession of it. One of counsel for' defendants who had the deed presented it to the' county attorney in compliance with the order of the court. It does not appear from the showing made that counsel obtained this deed from this defendant. The privilege being a personal one, the burden is upon this appellant to show that he himself was compelled to give or produce evidence which tended to incriminate him, and before this court may reverse a judgment of conviction upon this ground the record must affirmatively show that this defendant was compelled to produce incriminating evidence by reason of the order of the court aforesaid.

No such showing is made. On the contrary, it affirmatively appears from the record, from the testimony of this defendant himself, that he at no time had possession of the deed which was required to be produced.. Under his own testimony, therefore, he could not have been compelled to produce this deed and was not compelled to do so. This court will not consider ah assignment of error which is inconsistent with the truth. The fact that one of his codefendants may have been compel' ed to produce this deed cannot be claimed as a violation of this defendant’s privilege against self-incrimination, because it is specifically provided by section 27 of Article 2 of the Constitution that:

“Any person having knowledge or possession of facts that tend to establish the guilt of any other person or corporation charged with an offense against the laws of the state, shall not be excused from giving testimony or producing evidence, when legally called upon so to do, on the ground that it may tend to incriminate him under the laws of the state; but no person shall be prosecuted or subjected "to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he-may so testify •or produce evidence.”

The defendant exercised his privilege of becoming a witness in his own behalf, and upon his direct examination testified concerning this deed as follows:

“Q. Tell .the jury whether or not, Mr. Montgomery, After that time, in Tushka, you ever had that deed in your possession? A. I never did. Q.. Who had it recorded, if any one had' it recorded? A. Temple. Q. Where was the next time you saw that deed from the time you saw it at Tushka ? A. The next time I saw it he had it. Q. Who? A. Tom. Q. When was'the next time you saw it, and who had it, if you ever saw it again? A. I don’t know that I ever saw it again.”

It is not necessary, therefore, for this court to pass upon the question of whether or not, had this defendant been compelled to produce this deed under .the circumstances as disclosed by this record, it would have been a violation of section 2 of article 21 of our Constitution. It is only necessary to decide that the record does not support the contention that he was compelled to produce ■such deed or any other evidence which tended to incriminate him. The assignment of error, therefore, is without merit.

It is also contended that the court erred in admitting incompetent evidence prejudicial to this defendant - over his objection and exception and motion to strike the same from the record. The evidence complained of concerns the transaction of the forgery .of another deed committed prior to the time of the. alleged forgery for which the defendant was tried. • The evidence admitted. disclosed that C. A., or Tom, Temple and this defendant, Montgomery, and Edmund Gardner had forged a deed to-the allotment of James Boatright, a brother of Oliver Boatright, and had taken the train at Atoka, Okla., and gone to Durant, Okla., in which city such alleged forged deed was acknowledged before a notary public. Counsel for this defendant contend that these' were separate and distinct transactions, each independent of the. other, and were not so inseparably connected that the-, proof of one necessarily involved the proving of the-, other; that it was prejudicial error to admit this testimony, because it tended to prove the commission of another independent offense. This court has held in several cases that proof of such independent offense is inadmissible where the transactions are separate and distinct, but another rule of evidence is equally well established by the decisions of this court, to the effect that proof' of independent crimes or offenses is admissible wherever it tends to show plan or system, motive, intent, or purpose to commit the offense charged, or where such evidence tends to establish the accused’s guilty knowledge-, and intent of the offense charged.

The testimony of the codefendant Gardner, indicates-, clearly that the forgery of both of these deeds of the-Boatright brothers to their respective allotments was but. the outcome of one plan or scheme; that they were so-■connected with each other as to form an indivisible criminal transaction or continuous offense. In fact, they were but one criminal scheme. . In Rice on Criminal' Evidence, sec. 494, it is said:

“For the purpose of showing the prisoner’s guilty knowledge in such cases, it has. always been held competent to prove other forgeries” — citing Mayer v. People, 80 N. Y. 364, and People v. Shulman, 80 N. Y. 373, note.

In the case of Carter v. State, 6 Okla. Cr. 232, 118 Pac. 264, evidence of other separate and distinct embez-zlements was admitted, and the court, as was done in this case, gave a separate instruction to the effect that such evidence was only to be considered by the jury as bearing upon the fact whether or not the defendant embezzled and fraudulently appropriated the specific amount alleged in the indictment, and at the time alleged in the indictment, and as tending to show the intent, if any, of the defendant in the commission of the offense alleged against him. In that case' it was contended that the •admission of such evidence and the giving of such an instruction was reversible error, but this court held to the contrary, holding that the instruction itself was favorable to the defendant, in that the trial court might Nave instructed that the jury could have considered such evidence if they believed it constituted a part of a plan or .-system of the defendant to embezzle, citing Wigmore on Evidence, vol. 1, sec. 329, and Ency. of Evidence, vol. 11, pp. 805, 806.

In the case of State v. Rule, 11 Okla. Cr. 237, 144 Pac. 807, this court held:

“As a genera] rule, evidence of other offenses, though -of the same nafure, is not admissible for the purpose of ¡showing that the defendant is guilty of the particular offense charged. To this rule, however, there are well-settled exceptions. Those' applicable to the question presented . on the record in this case are as follows:
“(a) Evidence of other offenses similar to that, charged is relevant and admissible, when it tends to prove some element of the one charged, as when it shows or tends to show guilty knowledge or intent in the commission of the offense charged.
“(b) Evidence that tends directly to prove the defendant’s gujilt' is not rendered inadmissible because it proves or tends to prove him guilty of another and distinct offense.
“(c) Evidence of a different offense from the one-charged is admissible when both offenses are so. closely-linked or connected as to form a part of the res gestae.
“(d) Evidence of other offenses is competent to prove, the specific offense charged when it tends to establish a systematic scheme or plan embracing the commission of two or more offenses so related to each other that proof of one tends to establish the other, or to connect the defendant with the commission of the offense charged.
“(e) In support of an, information charging the filing-of a false claim with intent to defraud the state, and that, by such false pretense the defendant did obtain from the-State Auditor a warrant for the amount of the claim, evidence is admissible of other instances when he did the-same thing, as tending to show guilty knowledge or intent, and that the offense charged was a part of a plan or scheme to cheat and defraud the state.”

But it is contended by counsel for the .plaintiff in error that the testimony in this case is not admissible under the-authority of the Rule Case. With this contention we cannot agree. The evidence of the forgery of the other deed1 in this case clearly tends to establish guilty knowledge- and intent on the part of the defendant in the forgery of the deed charged in this case. It tends also to establish that the forgery of both of these deeds was but a part of one criminal scheme to fraudulently obtain the apparent title to the allotments of both the Boatright brothers. It was but one plan to defraud. The evidence on the part of the state shows .that the forgery of both of these deeds was talked about between Temple, Gardner, and Montgomery from, the inception of the criminal scheme, and that it was understood between those parties that Gardner was to forge the name of James Boatright to the deed to James Boatright’s allotment, and was to procure another negro to forge the name of Oliver Boatright to a deed to Oliver Boatright’s allotment, and that in pursuance of such a plan and scheme these parties made various trips, one to Coalgate, Okla., for the purpose of procuring an acknowledgment of Wm. Keel to the deed to the Oliver Boatright allotment, one to Durant for the purpose of procuring an acknowledgment of Gardner to the deed to the James Boat-right allotment, and one to Tushka, where the acknowledgment of Wm. Keel to the Oliver Boatright deed was 'finally obtained; that between these various trips these parties met and talked this matter over, and during all these conversations both transactions were mentioned and freely discussed. They were so inseparably linked that it would have been impossible to permit evidence of this transaction alone without the disclosure of evidence of the other. It is the opinion of the court, therefore, that evidence of the forgery of the James Boatright deed was so inseparably linked with the forgery of the Oliver Boat-right deed that evidence of one could not have been admitted without disclosure of the other; that they formed but one criminal plan or scheme; that the evidence of the forgery of the James Boatright deed tended strongly to show guilty knowledge and intent on the part of this defendant of the forgery of the deed charged in this indictment, to wit, the Oliver Boatright deed; that the evidence therefore was admissible under the rule established in the decisions of this court cited above; and that the trial court did not commit prejudicial error in admitting the same.

It is also contended that the court erred in allowing the defendants jointly charged in the information with the defendant on trial to testify as witnesses for the state without dismissal of the charge against such’codefendants. Counsel have abandoned their position on this question in view of the fact that their contention received an adverse decision- in the case of Nettie Brown v. State, 9 Okla. Cr. 382, 132 Pac. 359, wherein it was held:

“Where two or more persons are jointly indicted, the state may use one of such defendants either before or after conviction as a witness against the others without first dismissing the prosecution against such defendant so used as a witness.”

After a full consideration of the record and the briefs of counsel it is the opinion of this court that the judgment of the trial court should be affirmed; and it is so ordered.

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


text:
    DUG CROSBY v. STATE.
    No. A-2730.
    Opinion Filed July 21, 1917.
    (166 Pac. 445.)
    APPEAL. AND ERROR — Affirmance. Whore the defendant appeals from a judgment of conviction, and no briefs are filed or argument presented, this court will make an examination of the record, and, if no fundamental error appears, the judgment will be affirmed.

      Appeal from District Court, Okmulgee County; Ernest B. Hughes, Judge.

    Dug Crosby was convicted of the crime of burglary, and appeals.
    Affirmed.

      S. P. Freéling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

Plaintiff in error was prosecuted in the district court of Okmulgee county, charged by information with the crime of burglary in the second degree. He was-found guilty, and his punishment assessed by the jury at confinement in the penitentiary for a period of four years. From this judgment he has appealed.

No appearance was made by any one representing plaintiff in error as counsel when this case was called for oral argument; neither has any brief been filed directing the attention of the court to any supposed errors upon which the appeal was taken. This being an appeal from a conviction for a felony, we have taken the precaution to carefully examine the record, and we have discovered no errors which will warrant a reversal of the judgment.

The judgment of the district court of Okmulgee county is therefore affirmed.

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


author: ARMSTRONG, J'

text:
    STATE v. WILLIAM BELL.
    No. A-2395.
    Opinion Filed July 23, 1917.
    (166 Pac. 451.)
    1. APPEAL AND ERROR — Transcript on Appeal — Motion to Set Aside Information — Exhibits, (a) Tlie statutory designation of things which constitute the record and which can be brought up on appeal by transcript includes a motion to set aside an information or indictment.
    (b) A motion to set aside an indictment or information as contemplated in the foregoing includes all the exhibits attached, referred to, or made ,a part of said motion properly.
    2.. INDICTMENT AND INFORMATION — Appeal—Motion to Set Aside Information — Discretion of Trial Court. A motion to set aside an information on the ground that the proof offered at the examining trial is insufficient to establish the commission of the crime charged is addressed to the sound discretion of the trial court. On appeal by the state, therefore, this court will examine carefully all the facts and circumstances disclosed at the hearing on the motion, and determine whether or not the court, abused his discretion. If not, the judgment of the trial court will be affirmed; if so, the judgment will be reversed, and the cause remanded for trial.
    3. INDICTMENT AND INFORMATION — Sufficiency of Evidence on Examining Trial. A careful examination of the testimony attached to and made a part of the information discloses the fact that the trial court arrived at an erroneous conclusion as to the law applicable.

      Appeal from District Court, Rogers County; T. L. Brown, Judge.

    William Bell was prosecuted on information for attempt to commit rape upon a female under 16, and from an order setting aside the information and discharging defendant, the State brings error.
    Reversed and remanded, with directions.

      W. M. Hall, Co. Atty., and R. McMillan, Asst. Atty. Gen., for the State.

      D. M. Battenfield and Hoivwrd & Holtzendorff, for defendant in error.
   ARMSTRONG, J'

This is an appeal by the State of Oklahoma from an order of the district court of Rogers county sustaining a motion to set aside an information and discharging the defendant in error from prosecution. A motion to dismiss the appeal was filed by the defendant in error, and the cause now comes on to be heard upon this motion and upon the merits. The charging part of the information is as follows:

“William Bell, then and there being, did then and there willfully, unlawfully, and feloniously attempt to commit a crime, a felony, to wit, rape, in the following manner and form, to wit: That he, the said William Bell on or about the 10th day of August, A. D. 1914, in said county of Rogers, did then and there willfully, violently, unlawfully, and feloniously attempt to rape, ravish, and carnally know one May Wilson, a female under the age of 16 years, and not the wife of him, the said William Bell, by then and there taking hold of the said May Wilson and throwing her on her back upon the ground, and then and there pulling up her clothing and taking hold of her private parts, and he, the said William Bell, by means of the aforesaid acts, did then and there intend to have unlawful sexual intercourse with her, the said May Wilson, but he, the said William Bell, failed to commit the crime of rape upon the said May Wilson and was prevented from the commission and perpetration of said crime of rape by the resistance' of her, the said May Wilson.”

The motion to set the same aside is as follows:

“Comes now the defendant herein, William Bell, and moves the court to set aside and quash the information filed in this cause by county attorney of Rogers county, Okla., for the following reasons, to wit:
“First. That said information is filed in said cause and based upon the evidence taken at a preliminary hearing before the justice of the peace and upon the order of the said justice of the peace at said preliminary hearing, holding this defendant to answer to said charge before this court.
“Second. That the evidence taken at said preliminary hearing was not sufficient upon which to base any information charging the defendant with the offense sought to be charged in 'the information in this case, and was wholly insufficient with which to further proceed to prosecute this defendant.
“Third. That there was no legal .or competent evidence in said case, or taken at said preliminary hearing to support the information filed in this cause, and that said information is filed without any legal or competent evidence upon which to base same.
“Fourth. The defendant herewith refers to the evidence taken at said preliminary hearing and duly filed with the clerk of this court, and makes same a párt of this motion, the same as if same was attached hereto as an exhibit.
“Wherefore said defendant prays the court to review the transcript of said evidence, and upon a review thereof to hold that same is insufficient to support said information and enter its orders in this cause setting aside and quashing said information and holding same for naught.”

The testimony which is made a part of the motion is as follows:

“May Wilson, being first duly sworn, upon her oath testified as follows, to wit:
“DIRECT EXAMINATION BY MR. HALL.
“Q. What is your name? A. May Wilson. Q. Where do you live? A. Collinsville. Q. How long have you lived in Collinsville? A. We have lived in Collinsville since, I think, it was in July. Q. This last July? A. We come this July. Q. This last month? A. The month of last July; a year ago this last July. Q. How old are you, May? A. Fifteen. Q. When was you 15? A. December 1st. Q. Do you know William Bell? A. I just know him. Seen him along about, two months. Q. Did you see him on or about the 10th of this month? A. 10th of this month; I don’t know when the 10th was. Q. Do you remember the day of the week? A. It was on Monday. Q. How long ago has it been? A. Been about two months. Q. 10th was on Tuesday, was it not? A. Yes, sir. Q. Where did you see him about the 10th of this month? A. I seen him in Col-linsville. Q. What place? A. At.the depot. Q. That was when? A. 10th. Q. What day of the week was that? A. On Monday; no; on Tuesday. Q. Well, now then, before you saw him on Tuesday did you see him before that? A. Yes, sir. Q. Did you see him before that? A. Yes, sir; nearly every day; Q. Did you see him on or about the 10th? A. Yes, sir. Q. Where was that? A. I seen him down at the bridge on the 10th, early in the morning. Q. What day of the week was that? A. It was on Tuesday. Q. Well, now, when you saw him, where did you go? A. We went to town, and as we missed the 8 o’clock train, he said' for me to go home and we would go on the 11 o’.clock. Q. Now, that was on Tuesday? A. Yes, sir. Q. Well, did you see him before that day? A. Yes, sir; I saw him on Monday. Q. Now, where was that? A. It was down there by that little draw. Q. You say that it was on Monday? A. Yes, sir. Q. Was that one week ago today? A. Yes, sir; one week ago today. Q. Do you know what day of the month that was? A. It was on the 9th; 'yes, sir, it was on Monday; Tuesday was the 10th. Q. Now, to refresh your memory, May, wasn’t Monday the 10th? A. Yes, sir; Monday was the 10th; Tuesday was the 11th. Q. Where did you see him on the 10th? A. On the 10th I saw him near the bridge about 4 o’clock in the evening. Q. Did you have any conversation with him? A. Yes, sir. . Q. What did he say to you there? A. He wanted to know when he * could meet me and everything like that. Q. Now, May, did you have any trouble there with him? A. At that time? Q. Yes; on Monday of that day? A. Yes, sir. Q. That was the 10th of August? "A. Yes, sir. Q. Tell the-court what he did? A. Well, he tried to overpower me and tried to down me and everything like that. He jerked me down and jerked my wrist. It was nearly 'black the next day. Q. You say he jerked you down? A. Yes, sir. Q. Well, what did he then do? A. Well, he wanted to do what he oughten to do. Q. Well, what did he do? A. Well, he tried to take a hold of me and pulled me down, and he said he wanted to see me for a minute. Q. Well, tell the court what he did? A. He tried to take hold of me and pull my clothes up. Q. Were you standing up? A. I was standing up all the time? Q. What did he do to you? A. He throwed me down and got me all dirty and muddy. Q. How did he throw you down? A. Why, he got a hold of one hand and jerked me down, and I fell on my side. Q. Did he throw you on your back? A. He threw me down on my side. Q. When he threw you on the ground what did he say? A. Well, he says, ‘I won’t hurt you.’ Q. Well, what do you mean by trying to get a hold of you? (Objected to by Mr. Howard: Let the witness tell what occurred. Objection overruled.) A. Well, he tried to get his hands on me, and he couldn’t do it, although he did it after a while. Q. Well, what did he do? A. Well, he tried to pull my clothes up and and put his hands- on me. Q. Well, where did he put his hands? A. On my privates. Q. What did he try to do? A. He tried to do everything he could. Q. Well, what did he do after throwing you down? A. Well, he took-me in his arms and told me he wouldn’t hurt me,-and all that stuff, that nobody wouldn’t, know it, and what was the use; if we were going to get married, it would all happen again. Q. Well, what did he do to your private parts? A. Well, he done what he oughtn’t to do. Q. What time of the day was that? A. It was about’4 o’clock in the evening, a little after 4. Q. Well, what county was that in? A. Rogers county. Q. State of Oklahoma? A. Yes, sir; down here.
“Mrs. C. W. Wilson, being first duly sworn, upon her * ath testified as follows, to wit:
“DIRECT EXAMINATION BY MR. HALL.
“Q. What is your name? A. Mrs. C. W. Wilson. Q. Where do you live?' A. Here in Collinsville. Q. You are the mother of May Wilson, are you not? A. Yes, sir. Q. How old is May? A. May will be 16 the 1st day of December. Q. Sixteen the 1st day of next December? A. Fifteen years old she is. Q. What year was she born in? A. In 1898. Q. First of Decmfoer, 1898? A. Yes; 1st day of December. Q. Where were you on or about the 10th of this month? A. 10th I was home in bed sick. Q. Do you know what day of the week that was-? A. It was on Tuesday ; I think it was Monday. - Q. Where was May that day ? .A. Well, in the afternoon about 3 o’clock she went after ■a bucket of water. Q. How far did she have to go to geit the water? A. Well, I suppose about three blocks or something like that. Q. Do you remember how long she was .gone? A. Well, she was gone quite a long while. Q. What explanation did she make when she came back? A. Why, I .said, Why did you stay so long for, Honey’ — (Objected to by the defendant for the reason that any conversation had :in the absence of the defendant would not be binding on .him. Objection sustained by the court.) Q. Did you notice •anything unusual about the appearance of May? A. Yes, •sir. Q. What did you notice? A. Well, the back of her dress was muddy, and she had grass stains on the back ■of her dress. Q. Well, what is the nature of that stain? Mr. Howard: We object to that. The Court: Sustained. Q. What became of the dress she had on? A. Well, she washed the dress. Q. Well, what about the muddy stains on the dress? A. Well, some of the stains aren’t out of the dress yet. Q. Well, where is that dress? A. Well, we just fetched the waist; wte couldn’t hardly get the stains out. Some of the stains are there yet, but they do not show so plain as they did. Q. Did you examine that dress today? A. Yes, sir. Q. Where is that dress? A. It is here, I think. Just the waist is all I brought. Mr. Howard: We object to the exhibition of that waist by the witness after testifying that it is not in the same condition as it was when the alleged offense-was committed. (Objection overruled. Defendant excepts.) Q. Mrs. Wilson, is this the waist that May wore on the afternoon of the-10th of August, which was last Monday, a week ago today? A. Yes, sir. Q. Is this the waist that she wore when, she returned? A. Yes, sir; that is the waist. Q. What: was the condition of this waist when she returned from going after the water? A. Yes; it was all muddy on the-back and even on the hem of the skirt. I don’t, believe that she wore it the next day. I said, What is the matter with your dress, Honey?’ She said she fell down. Q. Was there-any other marks on it? A. Just muddy and grass stains. (The state offers in evidence a waist just testified to. as: being the waist that May wore when she went after a bucket of water on the 10th of August, 1914. The defendant removes this objection.) Q. What county and state, Mrs. Wilson, did this take place? A. In the State of Oklahoma. Q. In Rogers county? A. Yes, sir; we live just outside of the city limits.”

The motion to dismiss is based upon the proposition that the appeal taken by the state is brought up by transcript, and not by case-made. The argument and authorities cited disclose the fact that counsel’s contention is based', upon the proposition that the motion to set aside the information and the exhibits which were made a part of the* motion, by specific statements contained in the same, are-not a part of the record included in the statutory definition,, and therefore these matters cannot be reviewed on appeal by transcript certified by the clerk, but would have to be* brought up by case-made, signed and certified by the trial judge, and duly authenticated as*provided by law. •

In this contention counsel are wholly in error. The-motion to set aside the information is as much a part of the record proper as would be a demurrer or any other plea filed in this case. This court has never indicated the-contrary in any of its opinions. The testimony included. in the transcript was properly so included because it was •an essential part of the motion to set aside the information, and the transcript of the record would not have been complete without including it. This appeal is properly lodged on the transcript, and there is no ground for dismissal. The motion to dismiss, therefore, is overruled.

We will now dispose of the case upon its merits.

The motion lodged in the trial court to set aside the information, stripped of all technicalities, undertakes to assert that there was no proof at the examining trial sufficient to warrant the examining court in holding the defendant in error, Bell, to trial before the district court. .Again we cannot agree with counsel.

This proof discloses the fact that the prosecuting wit-mess, May Wilson, was a girl about 15 years of age; that ¡she was induced by defendant, Bell, to meet him in a ravine mear the outskirts of the town of Collinsville. It is clear from the proof that she was not his wife; also that she was under the age of consent. It is equally clear that the evidence shows he committed the offense as charged in the information.

Numerous opinions have been written by this court Involving sexual crimes against female children, including 'those attempted as well as completed. The crime defendant is charged with is that of attempt to commit rape upon a child. If the testimony is to be believed, and for the purpose of the motion to set aside the information it must be faken as true, there having been no contradiction of the same offered, the defendant should have been tried and convicted. The trial court was in error in sustaining the motion to set aside the information.

It follows that the judgment of the district court of Rogers county setting aside the information should be reversed, and this cause remanded, with directions to overrule the .motion to set aside the information and proceed with the trial of this cause.

It is so ordered.

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


author: ARMSTRONG, ,J.

text:
    L. W. BOOTH v. STATE.
    No. A-2403.
    Opinion Filed May 19, 1917.
    Rehearing Denied August 8, 1917.
    (166 Pac. 751.)
    APPEAL AND ERROR — Conviction—Evidence—Reversal. When an accomplice testifies in the trial of a criminal case to facts which establish the guilt of the defendant, and when other testimony-in the record clearly connects the defendant with the commission of the crime, and no proof is offered in defense tending to explain the incriminating facts, and a judgment of conviction results in the trial court, it will not be disturbed on appeal..

      Error from District Court, Beaver County; W. C. Crow, Judge.

    L. W. Booth was convicted of larceny, and he brings error.
    Affirmed.

      W. G. Hughes and J. W. Cuhvell, for plaintiff in error.

      R. McMillan, Asst. Atty.'Gen., for the State.
   ARMSTRONG, ,J.

The plaintiff in error, L. W. Booth, was convicted at the September, 1914, term of the district court of Beaver county on a charge of larceny and his punishment fixed at imprisonment in the state penitentiary for ope year.

The information charges the plaintiff in error with the larceny of a roan cow, the property of John Brodie, on the 5th day of August, 1913.

Prosecuting. witness Brodie testified that he lived in Beaver county, Okla.; that he owned a roan milk cow about four years old; that she was in a pasture adjoining his place; that early on the morning of the 6th of August 'he heard the cow lowing; that when he went out to see if there was any trouble he could' not find her; that he tracked her some distance away; that he recovered the hide of the cow through the sheriff’s office.

A number of witnesses testified to seeing the cow driven through the country by Jack Symons and Ed Johnson.

Jack Symons testified that he was an accomplice in the stealing of the cow in question; that he was about 35 years old, and knew the defendant, his brother, and the codefendant, Johnson; that he went into Beaver county to see Johnson about stealing these cattle; that they were in the cattle-stealing business; that they were. “rustling” cattle for Booth, who was a butcher and cattle buyer; that they had talked over the matter of stealing the cattle several times during the preceding few weeks, and had agreed with defendant Booth that they would bring the cattle to his place and that he would butcher them, sell them, and go “halvers” on the profits; that the hide would be sold and beer bought for the crowd; that they stole the Brodie cow and another black cow from a nearby neighbor, and drove them, during the night, towards the place of the defendant Booth, who lived a few miles’ over the Texas side of the line; that they put them in the pasture, which pasture ran up towards the house; that they were met and assisted by the defendant’s brother, Jack Booth; that the Booths all lived together at the same place; that they passed a number of people on the road, whose names the witness gave, and who testified in the case as having seen the cattle driven along the road, as this witness detailed. He testified further that he saw the hide in Guymon after the sheriff had seized the same, and identified it as the hide of the cow that was stolen. He testified that the defendant Booth knew this cow was to. be stolen from Brodie and the black cow from a neighbor named Anderson; that he got $5 as his share of the profits in the transaction; that after they delivered the two cows to the defendant, he told them to come back on the Friday following and they would divide the proceeds. Witness further testified that he was serving a term in the penitentiary for his participation in the crime; that he had received no promise of immunity or leniency in connection with the matter.

Earl Murphy testified that he was a cousin of defendant and was working for him at the time the cow in question was stolen; that he assisted the defendant in butchering the cow in question and detailed the circumstances.

Witness Green testified that he was a hide buyer and lived at Guymon," Okla., and that he knows the defendant and all the parties involved in the prosecution; that he bought the hide of the cow in question from the defendant L. W. Booth; that the sheriff came and paid him for the hide and took it to be used in evidence.

The. hide was introduced at the trial and properly identified. No testimony was introduced on behalf of plaintiff in error.

The only contention discussed at-length is the proposition that the testimony of Symons was not properly corroborated. With this contention we cannot agree. The cow in question was, without doubt, stolen from the witness Brodie in Beaver county, Okla., on the night of' August 5th, or early on the morning of the 6th. There can be no question but that the cow was driven straight to the defendant Booth, delivered to him, and by him butchered and sold. There is ample corroboration of all of these facts, and, in the absence of any explanation of any kind, these facts, together with the numerous other circumstances disclosed by the record, amply corroborate the testimony of the accomplice Symons.

There is not a shadow of a doubt about the guilt of the plaintiff in error, and there is no legal ground upon which the judgment of the trial court should be reversed.

The judgment of-the trial court is affirmed.

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


author: ARMSTRONG, J.

text:
    ISRAEL ENNIS v. STATE.
    No. A-2427.
    Opinion Filed September 7, 1917.
    (167 Pac. 229.)
    1. DEPOSITIONS — Time for Application — Statute. Under the provisions of sections 6036, 6037, 6038 and 6039, Rev. Raws 1910, one who is charged with crime has the right to apply to the trial court for permission to take depositions after an issue of fact is joined and not before.
    2. CONTINUANCE — Application—Denial. When an application for continuance for sufficient time to take the depositions of nonresident witnesses is made in accordance with these provisions, it is error to deny the same if the showing made discloses the materiality of the ¡testimony and the necessity of the same to fairly present the defense of the accused, unless on appeal it appears from the record that the facts sought to be established were available from other witnesses within the jurisdiction of the court, or that the application was intended merely to delay the proceedings and not in order that justice might be done.
    3. SAME — Application to Take Depositions — Allowance. When an application for continuance to take depositions complies in all particulars with the statute and when the showing made clearly entitles the accused to take the depositions and no issue is made by the state that the testimony is not essentially material to the defense of the accused, a postponement or a continuance should be allowed, and proper orders made by the court for the taking of the depositions as provided unless counsel for the state offer to admit that the absent witnesses would testify to the facts set out in the application, and that such application could be read in evidence in liexi of the depositions sought.
    4. APPEAL AND ERROR — Discretion of Trial Court — Application for Continuance. Under the doctrine promulgated in this opinion a different state of the case would be presented and a different rule would apply were there any question about the competency of the testimony sought or the good faith of the representations made, or the materiality of the same, as would be the case also if the testimony desired was merely cumulative and other witnesses were within the jurisdiction of the court by whom the facts sought by the depositions could be established. When any issue is made as to these latter propositions, this court will consider all of the record on appeal to determine whether or not there was abuse of discretion upon the part of the trial court on the application for continuance and peimission to take depositions under these sections of the statute.
    5. EMBEZZLEMENT — Larcenyl—“Larceny by Fraud” — Elements. To constitute “larceny by fraud” the allegations in the information must set out and the facts disclosed at the trial must show the existence of a fraudulent purpose and intent upon the part of the taker to appropriate ¡the property to his own use and deprive the owner thereof at the time the same comes into his possession, and that fraudulent representations were made to the owner to induce him to pant with the possession of the property. If this condition is not shown, but, on the contrary, it appears that the owner parted with the possession of his property and the taker received the same in good faith without any fraudulent intent upon his part to deprive the owner thereof and appropriate the same to his own use, but after receiving the same into his possession, fraudulently converted it to his use and ' benefit and deprived the owner thereof, the crime would be embezzlement.
    ■6. SAME — Appropriation—Intent. The distinction between larceny, where the taking is by fraud, and embezzlement is determined with reference to the time when the fraudulent intent to convert the property to the taker’s own use occurs. In larceny, the criminal intent must exist at the time of the .taking of the property, and it must be taken with intent to deprive the owner thereof at that time. In embezzlement the taker receives the property intending at the time a compliance with the terms of agreement under which it is received, or with the intent to conform to the owner’s wishes concerning the property, and after obtaining possession of the same he fraudulently appropriates it to his own use, with intent to deprive the owner thereof.

      Error from District Court, Texas County; R. McMillan, Assigned Judge.

    • Israel L. Ennis was convicted of larceny, and he brings error.
    Reversed, and cause remanded.

      Harris & Breslin, J. P. McLaughlin, and S. A. Horton, for plaintiff in error.

      Jno. B. Harrison, Asst. Atty Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Israel L. Ennis, was convicted in the district court of Texas county, at the November, 1914, term, on a charge of larceny, and his punishment fixed at imprisonment in the state penitentiary for one year and one day.

Numerous assignments of error are urged in the brief, most of which are based upon propositions tnat are not likely to arise again should this cause be retried. We find it necessary to discuss only two assignments of error for the purpose of disposing of the present appeal.

The first is set out in the petition in error as assignment No. 6, and is based upon the proposition that the court erred in refusing to grant a continuance for sufficient time to permit counsel for the plaintiff in error to take the depositions of certain nonresident witnesses, and upon the ground that the court refused to permit the taking of these depositions. It appears that the plaintiff in error was brought before the bar of the district court of Texas county to be arraigned upon the information in this cause; that he filed a demurrer to the information, and at the same time filed an application to disqualify the resident judge. The resident judge, W. C. Crow, certified his disqualification, and Judge R. McMillan was ordered by the Chief Justice to preside at the trial of the cause. Upon the convening of the court with Judge McMillan presiding, the demurrer was heard and by the court overruled. A petition for a change of venue was also heard and overruled, as was a motion to-quash the jury panel. A plea of not guilty was entered on the 25th day of November, 1914, and on the same date notice was served upon the county attorney that application would be made to the court to take the depositions of five witnesses who. were nonresidents of the State of Oklahoma. The application for continuance, in addition to setting up the grounds apon which it was based, includes a long statement of the plaintiff in error, setting forth the: reasons why the testimony of the nonresident witnesses, was desired, and detailed facts disclosing the materiality thereof and the necessity of this testimony for his proper defense. The application for continuance and the exhibits, are too lengthy to be included in this opinion, and are not necessary for the disposition of the proposition. The application for permission to take the depositions was filed on the same date. This application is supported by affidavits, setting forth the facts to which the witnesses are expected to testify in their depositions, and shows that one of these witnesses lived in Cincinnati, Ohio, one in Bucklin, Kan.,, one in Leavenworth, Kan., one in Kansas City, Mo., one in Little Rock, Ark., and one at Rusk, Tex. The court denied the continuance and the application for permission to take the depositions, and forced the plaintiff in error to immediate trial-over his objections and exceptions. The evidence adduced at the trial emphasizes the necessity and importance of the testimony which the plaintiff in error sought in the application to take the depositions of these witnesses. Section 6036, Rev. Laws 1910, provides:

“When an issue of fact is joined upon an indictment or information, the defendant may have any material witness residing out of the state examined in his behalf as prescribed in this article and not otherwise.”

This is the section which gives a person charged with crime the right to take depositions of nonresident witnesses. Section 6037, Rev. Laws, provides:

“When a material witness for the defendant resides out of the state the defendant may apply for an order that the witness be examined on a commission to be issued under the seal of the court, and the signature of the clerk, directed to some party designated as commissioner, authorizing him to examine the witness upon oath or interrogatories annexed thereto, and to take and certify the deposition of the witness and return it according to the instructions given with the commission.”

Section 6038 Rev. Laws, 1910, sets forth the manner in which the application for permission to take depositions shall be made, and is as follows:

“Application must be made upon affidavit stating:
“First. The nature of the offense charged.
“Second. The state of the proceedings in the action and that an issue of fact has been joined therein.
“Third. The name of the witness and that his testimony is material to the defense of the action.
“Fourth. That the witness resides out of the state.”

Section 6039, Rev. Laws 1910, is as follows:

“The application may be made to the court or judge himself, and must be upon five days’ notice to the county attorney.” . .

These sections contain the statute law governing the right of an accused to avail himself of testimony of nonresident witnesses, and the manner in which the same may be lawfully had. Under the provisions of these sections, the accused had no right to apply for permission to take depositions until all demurrers and motions were disposed of and a plea of not guilty entered. The record discloses the fact that the notice to take the depositions was served upon the county attorney upon the same day that the plea of not guilty was. entered. It therefore follows that the notice was served upon the earliest possible date after the issue of fact was joined in the case.

The motion for continuance asked,first, that the cause be delayed until the five days had expired within which the. notice served upon the county attorney to take the depositions should run. The court indicated that he would not allow this continuance, and thereupon counsel filed the application for the appointment of a commissioner to take depositions, which fully conforms to all the provisions of the statute. The court, therefore, had before it all the matters and things involved in the proposition. The matter was argued pro and con before the court. The county attorney and special counsel declined to waive the five days' notice. Counsel for the accused argued to the court that they were justly entitled to have the five days expire, and upon the showing-made justly entitled to the commission to take the depositions, and that the case should be continued until the depositions were máde available. Counsel for the state argued to the trial court that the depositions could have been taken at any time after the examining trial was had, and therefore the order prayed for should be denied. The court apparently followed the argument of counsel for the state, and denied the continuance and the permission to take the depositions.

There was no contention made by counsel for the state at the trial of this cause that the facts set forth in the application for continuance and the application to take the depositions were not founded in truth. There can be no question but that the showing disclosed the essential materiality of the testimony desired. In fact, it tended to establish complete exoneration of the accused upon this charge. The record also discloses that this proceeding was not in-.situated until more than two years after the date the crime is alleged to have been committed.

Section 6040, Rev. Laws 1910, is as follows:

“If the court or the judge to whom the application is .made, is satisfied of thmtruth of the facts stated and that the examination of the witness is necessary to the attainment of justice, an order must be made that a commission be issued to take his testimony, and the court hr judge'may insert in the order a direction that the trial be stayed for & specified time reasonably sufficient for the execution of the commission and return thereof, or the case may be -continued.”

Under this section of the statute it was the duty of the ■court to grant a continuance of the case and to make necessary orders for the taking of the depositions. His failure to do so was prejudicial error.

In Smith v. State, 10 Okla. Cr. 544, 139 Pac. 709, Smith was indicted on a charge of larceny. Within nine days from the date the indictment was filed the case was called for trial. Counsel had applied for subpoenas, and had had them served upon certain witnesses who in the meantime had left the jurisdiction of the court. The application for continuance was based upon the ground that due diligence had been shown in an effort to secure the attendance of the witnesses, and, since they had left the jurisdiction of the court, sufficient time to take the depositions had not elapsed. The court overruled the motion for. continuance, and the trial resulted in a judgment of conviction. Upon appeal the judgment was reversed. In the opinion it is said:

“It is the settled rule in this state that a motion for continuance is addressed to the sound discretion of the trial court under all the circumstances of the case, and its action thereon will not be disturbed, unless an abuse of discretion appears. In the instant case, we think a clear abuse of discretion appears. There can be no question but'that the absent testimony as set forth in defendant’s affidavit was material and indispensable to his defense, and the evidence adduced on the trial does not render it improbable that it is true. ' In view of the fact that there was no preliminary complaint filed against defendant, and it appearing that the indictment was not returned until more than eighteen months after the alleged offense was committed, it would seem that defendant was entitled to reasonable time to prepare for trial, and it was error in the court to.overrule his motion for a continuance.”

In Hopkins v. State, 9 Okla. Cr. 104, 130 Pac. 1101, this question was raised on a motion for continuance and. overruled by the trial court. Upon appeal the judgment of. the trial court was affirmed on the ground that the diligence required by the statute had not been disclosed. In the opinion it is said:

“In the affidavit for continuance the defendant stated that C. R. Long, who resided at Rolfe, Mo., is a material witness, and, if present, would testify that on the day of the killing the defendant was at his own home at the time the killing is alleged to have taken place; that defendant has only been recently released from jail; that he has used every possible effort to locate said witness, and he has only .been able to locate said witness in the past few dáys; that immediately he caused his attorney to see said witness and die (the said C. R. Long) has promised to be present at the .next term of this court and testify and that he believes the testimony so to be given to be true. Evidently the trial ■court was. satisfied that due diligence was not shown, and "the absent witness’ promise to be present at the next term ■of court was simply a subterfuge to secure a continuance. If the defendant had exercised due diligence, he could have procured the deposition of this nonresident witness under the provisions of article 17, Procedure Criminal. The application lacks the evidence of good faith, as well as that of •due diligence.”

The same question was raised in Owen v. State, ante, p. 195, 163 Pac. 548. In the opinion it is said:

“When the case was called for trial the defendant filed •and presented a motion for continuance based on the absence of material witnesses in his behalf, without whose ■evidence it is alleged defendant could not safely proceed to trial. His affidavit for continuance contained all the formal allegations required by law, and, among others, the following statements: That Dr. Thos. Shinn, of Yardell, Ark., was acquainted with defendant for many years and acted as his physician when he resided in the State of Arkansas, and, if present, would testify that defendant’s mother was subject to fits of melancholia, and that he treated defendant for a form of epilepsy, known in medicine as psychoepilepsy, and that the general effect of such epileptic condition was to weaken the mind, judgment, reason, and the ability to differentiate between what is morally right and what is morally wrong; that Dr. T. J. Shinn of Wagoner, Okla., would testify that defendant was afflicted with said disease, which is a progressive disease of the mind; that Andrew J. Foster of Moodys, Okla., was duly /served with a subpoena to .appear as a witness, but is now confined to his bed with fever,, and is too sick to attend the trial; that, if present, he would testify that he was with defendant in the fall of 1915, near the town of Hulbert, Okla., when defendant was attacked by a spell or fit of epilepsy. The application for continuance was overruled, exception allowed, and the trial proceeded.
“Counsel for the defendant contend that: ‘The overruling of the motion for a continuance was a denial of defendant’s constitutional right'to have compulsory process for witnesses in his behalf, and in contravention of defendant’s constitutional guaranties within the meaning of our Bill of Rights.’ No rule is more firmly established in this state than that this court will not reverse a judgment of the trial court upon the ground that it refused to grant a continuance unless it appears that such court has manifestly abused its discretion in refusing it. However, it is the right of every person accused of crime to have a fair and impartial trial and compulsory process to compel the attendance of his witnesses, and that involves, as a matter of course, the time reasonably necessary to prepare for trial, and to find and produce testimony in his defense. It is not, however, a matter of which the defendant can complain that the trial is speedy, if he has had time for preparation and is ready for his defense. Continuance ought always be granted when, from the showing made justice requires it, this to enable the defendant to procure all legal and competent evidence necessary for the fair presentation of his defense, if he has used due diligence to obtain the same.
“Under our Procedure Criminal the defendant has the right to take the deposition of any material witness residing out of the state, and this only when an issue of fact is joined, upon an indictment or information. Section 6036, Rev. Laws 1910. The application must be made upon affidavit (section 6038, Rev. Laws 1910), and must be upon five days’ notice to the county attorney (section 6039, Rev. Laws 1910). It is further provided that upon a motion for continuance on account of the absence of evidence, if the state will consent that-on the trial the facts alleged in the affidavit shall be read and treated as the deposition of the absent witness, no continuance shall be granted on the ground of the absence of such evidence. Section 5045, Rev. Laws 1910.
“When a defendant desires the testimony of a witness who is a nonresident of the state, and therefore not amenable to the process of the court, he cannot rely upon such ■ nonresidence of his witness as a cause for a continuance, unless he shows that he desires to take the deposition of such nonresident witness. Here the defendant stated in his affidavit that he desired the presence of the nonresident witness. However, technical objections should not ordinarily prevent the granting of a motion for a continuance, if it is necessary to the proper presentation of the defendant’s case. And in this case we think the county attorney should have admitted that the witness, if present, would testify as stated in the defendant’s affidavit, and that said affidavit might be read and treated as the depositions of the absent witnesses, and, failing to do this, the trial should have been postponed at least ten days.”

In. the case under consideration, as has been stated, counsel for the accused exhausted all the' avenues provided by law for securing the testimony of the absent witnesses, and complied strictly in every respect with the requirements of the statute. No issue was made by counsel for the state as to the sufficiency of the showing. The state stood solely upon the proposition that the depositions could have been taken at any time after the examining trial. As said in the Owen Case, supra, these depositions could not be taken until after an issue of fact was joined. It therefore follows that the contention of the state in the trial court that the depositions could be taken at any time after the examining trial is without foundation. The law does not so provide. The trial court was in error in following this line of reasoning. It was his duty to grant the continuance and enter proper orders for the taking of the depositions. His failure so to do under the showing made and under the facts disclosed by the record constitutes reversible error. The county attorney refused to waive anything, even the five days’ notice provided for by the statute. This brings the direct issue before us as to whether or not a person accused of crime can be arbitrarily denied the legal right to secure testimony of nonresident witnesses. Unquestionably the right exists, and it is the duty of this court to uphold the same. A different state of the case would be presented were there any question about the competency of the testimony sought or the good faith of the representations made, or the materiality of the same. A different situation would also be presented if the record before us disclosed that the testimony desired was merely cumulative, and that the plaintiff in error had other witnesses by whom the facts sought to be obtained by the depositions could be established. No issue of this kind having been made at the hearing before the trial, court and none being disclosed by the record, there was really no question of discretion arising.

The only other proposition necessary to discuss is based upon the contention that the facts disclosed at the trial do not support the allegations of larceny by fraud, but that instead they establish the crime of embezzlement, if anything. The information charges, or attempts to charge, the defendant and two others with the larceny of broom com. The facts disclosed indicate that a number of people in Texas county consigned broom com to the Detroit Broom Corn Company at Kansas City, Mo.; that J. W. Robbertson was the person with whom they dealt and who had charge of the matter. A few of the shippers went to the office of I. L. Ennis in Guymon and inquired of him ■concerning the company. Some of these witnesses say that he told them the company was all right. Others say that he told them he had a telegram from the company which they ~mld have if they desired, but none of them asked for the telegram and hone of them saw the same; that Rob-bertson was to ship the broom corn, sell the same, pay himself the commission agreed upon, and account to them for the remainder of the money. The state brought Robbert-son before the court to testify against Ennis, and dismissed this charge against him, and used him as a witness in. chief. He testified,- among other things, that at the time the broom corn was received and at the time it was shipped away none of the parties charged with this offense had any intention to defraud the owners in any manner; that it was their purpose to ship the broom corn, sell it, and account to the owners for every penny due them. The record further discloses that after the broom corn was shipped to Kansas City, it was reconsigned under the direction of Robbert-son and sold, and that the proceeds were received by him and another codefendant and by them embezzled. Rob-bertson testified that Ennis secured a part of these proceeds. This, Ennis denies, saying that he never received a penny of it and had nothing whatever to do with .the transaction. ■ j

In order to constitute larceny by fraud the facts must show the existence of-the fraudulent purpose and intent at the time the property was received from the owner by the taker. If the property was received from the owner in good faith -with the' intention existing upon the part of the receiver at the time to handle the same in a lawful manner and account fully for the value thereof to the owner, less the compensation agreed upon, the crime of larceny by fraud would not exist. Under this state of the case, if the property was so received, and by the receiver fraudulently converted, the crime would be embezzlement. Embezzlement differs from larceny in that the original taking of the property was lawful or with the consent of the owner, while in larceny the felonious intent must have existed at the time of the taking. Sec. 15 Cyc. 488. In Bivens v. State, 6 Okla. Cr. 521, 120 Pac. 1033, it is said:

“The distinction between larceny, where the taking is by fraud, and embezzlement is determined with reference to the time when the fraudulent intent to convert the property to the taker’s own use occurs. In larceny the criminal intent must exist at the time of taking the property, and it must be taken with intent to deprive another thereof. If, on the other hand, the taker receives the property as a bailment, intending at the time a compliance with the terms of the bailment, or to conform to the owner’s wishes concerning the property, and he afterwards fraudulently appropriates the property to his own use, intending to deprive the owner thereof, the crime is embezzlement.”

This principle was also laid down in the case of Flohr et al. v. Territory, 14 Okla. 477, 78 Pac. 565. A part of the language used above is used in the syllabus of that case, wherein the court said:

“The distinction between larceny, where the taking is fraudulent, and embezzlement is determined with reference to the time when the intent to wrongfully convert the property to the taker’s use occurs. If the property in the hands of the taker amounted to a bailment, or if the property went into the possession of the taker with knowledge of the owner on account of any fraudulent representation by the taker, and the taker received the same, intending at the time of its receipt to convert the same to his own use and deprive the owner thereof, the crime is larceny. If, on the other hand, the- taker receives the property as a bailment of the same, or with the knowledge and consent of the owner, intending at the time a compliance with the terms of the bailment, or to conform to the owner’s wishes concerning the property in his possession, and afterwards converts the property to his own use and fails to account for the same upon demand, the crime is embezzlement.”

The proof offered in this case on the part of the state by witnesses, who consigned the broom corn, upon this proposition goes to one point only, and that is, that they inquired of plaintiff in error, Ennis, whether or not the Detroit Broom Corn Company was responsible, and that he replied that it was. No question was asked him concerning the responsibility of Robbertson, who, it seems, had been living in Texas county for many years and had been •engaged in the hardware business in Texhoma; nor does there appear to have been any questions asked concerning the responsibility of Rathburn by any of those owning the broom com involved in the transaction. . Some witnesses use the word “reliable.” Considering this testimony, together with the testimony of the state’s witness. Robbert-son, that no purpose existed upon his part, or upon the part of any of his associates, to unlawfully deprive the owners of the broom corn of their property at the time the same was received and shipped, the case falls short of necessary proof to establish larceny by fraud. That there was a crime committed there can be no' doubt, but that crime, under the record, was embezzlement and not larceny by fraud.

•For the reasons indicated, the judgment of the trial court is reversed, and the cause remanded to the district court of Texas county.

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


author: BRETT, J.

text:
    C. W. NEAL v. STATE.
    No. A-2631.
    Opinion Filed March 27, 1917.
    Rehearing Denied September 22, 1917.
    (167 Pac. 333.)
    APPEAL AND ERROR — Harmless Error — Instructions. Where it is manifest that the jury were not misled, nor the accused prejudiced, by a defect in an instruction, the error will be deemed harmless.

      Error from County Court, Washington County; Robert D. Waddill, Judge.

    C. W. Neal was convicted of having possession of intoxicating liquor with intent to violate the law, and he brings error. .
    Affirmed.
    ■ Charlton & Farrell, for plaintiff in error.

      R. McMillan, Asst. Atty.. Gen., for the State.
   BRETT, J.

The plaintiff in error, C. W. Neal, was convicted in the county court of Washington county of having possession of intoxicating liquor with intent to violate the prohibitory law, and sentenced to a term of six months in the county jail and to pay a fine of $500.

The testimony of the sheriff is that he found 49 quarts of whisky under two beds in a room in the residence of the plaintiff in error. Some of the whisky was in a sack under one bed and the remainder lying loose on the floor under another bed. The plaintiff in error did not testify in his own behalf; but one Charles Pearson testified that he was boarding with plaintiff in error, and that a friend of his by the name of Buddy was. passing through Bartlesville with this whisky in an automobile, and broke down on the outskirts of town, and asked him to- take care of the whisky for him, until he could get his automobile repaired. He claims that he then went with his friend Buddy out to the edge of Bartlesville, where he had this whisky hid under some Weeds, and assisted him in bringing it to the home of the plaintiff in error, to be stored, only until Buddy could get his car repaired; that this was in the nighttime, and the next day, before Buddy called for the whisky, the officers seized it. He. was in a measure corroborated by the wife of plaintiff in error; but the jury did not accept this theory, and found the plaintiff in error guilty.

The only error complained of is that the court omitted an element in the instruction defining the crime, and The instruction told the jury that the plaintiff in error did not offer a correct instruction, supplying this omission, and the verdict of the jury shows that they had. a correct understanding of the offense charged and proven. The instruction told the jury that the plaintiff in error was charged with “knowingly, willfully, and unlawfully having in his possession” this whisky, but omitted saying for the purpose and wlith the intent of unlawfully disposing of same. If this was a case in which the evidence left the question as to the intent and purpose for which the whisky was had in doubt, then there might be merit in the contention of the plaintiff in error; but in this case the intent and purpose was so clear and manifest that the jury were not misled, nor was the plaintiff in error prejudiced by this omission in the instruction. For the j ury could not have -arrived at any other conclusion, with or without an instruction on the question, than that the plaintiff in error had the whisky for the purpose of violating the law.

The judgment is therefore affirmed.

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