Anderson v. State , 21 Okla. Crim. 193 ( 1922 )

Defendant moved for a new trial on the ground, among others, that the court erred in overruling objection of the defendant to the introduction of any evidence by the state. Such objection was based upon the allegation that the information did not contain facts sufficient to charge the defendant with any crime. While it is urged in the brief of counsel representing the defendant that the information is insufficient, the petition in error does not contain an assignment to that effect.

This court has repeatedly held that where a defendant goes to trial and for the first time objects to the information when the state attempts to introduce testimony thereunder, or upon appeal, the objection should be overruled if by any intendment or presumption the information can be sustained. White v. State,4 Okla. Cr. 143, 111 P. 1010; Edwards v. State, 5 Okla. Cr. 20,113 P. 214; Ex parte Jim Spencer, 7 Okla. Cr. 113, 122 P. 557; McDaniel v. State, 8 Okla. Cr. 209,127 P. 358; Wilsford v. State, 8 Okla. Cr. 535, 129 P. 80.

The information in this case charges the defendant with the crime of making a false report as to the financial condition of the Farmers' State Bank of Weatherford, as of the close of business of May 12, 1919. The statute on which this information is based reads as follows:

"Every officer, director, agent or clerk of any bank doing business under the laws of the State of Oklahoma who shall willfully and knowingly subscribe to or make any false report or any false statement or entries in the books of such bank, or knowingly subscribe to or exhibit any false writing or paper, with the intent to deceive any person as to the condition of such bank, shall be deemed guilty of a felony, and shall be punished by a fine not to exceed one thousand dollars, or by imprisonment in the penitentiary not exceeding five years, or by both such fine and imprisonment." Section 269, Rev. Laws 1910.

The foregoing statement of the case includes a substantial outline of the material allegations of the information. In the case of State v. O'Neil, 24 Idaho, 582, 135 P. 60, the Supreme Court of Idaho held an information substantially like the one in this case to be sufficient as against a demurrer. Such information was based upon section 7128, Rev. Codes of Idaho, the provisions of which are very similar to the statute, above quoted, upon which this information is founded.

It is the opinion of this court that the information in this case is not only sufficient to withstand an objection to the introduction of testimony thereunder, but is good as against a demurrer should one have been lodged upon the ground of insufficient facts.

It is next contended that the evidence on behalf of the state fails to support the material allegations of the information or to prove the commission of any public offense. With this contention the court is unable to agree. No defense whatever was interposed. Reliance was placed entirely upon the failure of the state to prove its case. The evidence clearly establishes the fact that during the month of July, 1919, and for some four years prior thereto J.H. Anderson, the defendant, was the cashier and active managing officer of the Farmers' State Bank of Weatherford, Okla.; that William Umbach, the president of the bank, was a farmer living in the country some distance from the town of Weatherford; that he had no banking experience, was not actively connected with the running of the bank, and was seldom in the bank, except for the purpose of examining its notes and other papers as a director; that J.S. Wilks, also one of the bank's directors, was a farmer, with no banking experience, and had nothing to do with the active management of the bank; that the defendant had active charge of the bank with one or two subordinate employes working under him. In July, 1919, defendant admitted and confessed to the Bank Examiner that in the year 1915 he commenced to execute notes payable to the bank, purporting to be signed by farmers living in that neighborhood, that these notes would be placed in the bank's note case, and defendant admitted that it was "hard to explain" what he had done with the funds covered by these various forged notes. This system of misappropriating the bank's funds was not discovered until the month of July, 1919, when the Bank Examiner was making an examination of the notes found in the bank's note case. Defendant was present when this examination was being made, and the Bank Examiner became suspicious of two notes, one of which had apparently been raised from $700 to $1,700, and another from $400 to $1,400, and when the Examiner asked the defendant which of these amounts he was carrying on the notes defendant informed him that he was carrying the larger amount on each note. The Bank Examiner then asked the defendant where the makers of the notes lived, and, upon being told, informed the defendant that he (the Bank Examiner) intended to interview the purported makers of the notes. It was then that the defendant admitted that these and other notes which the bank was then carrying, also certain municipal warrants, were all forgeries.

These notes and warrants were being carried as part of the assets of the bank in July, 1919, and the purported date of execution of most of the notes antedated the 12th day of May, 1919, while the due date was subsequent to the 12th day of May, 1919. The dates of the issuance of the purported warrants of the city of Weatherford were also anterior to the 12th day of May, 1919. These notes were not obtained by the Farmers' State Bank of Weatherford by a rediscount, but said bank was the payee named in each of said notes. The only reasonable deduction from said evidence, as we see it, is that said notes had been carried as part of the assets of said bank from the purported date of their execution, and were considered by the defendant and included by him in the report of the resources of said bank to the Bank Commissioner on the 12th day of May, 1919, under the item in said report, "loans and discounts on which stockholders are liable, $107,258.74." Further, it is a reasonable conclusion from the evidence that the defendant included within said report between $8,000 and $9,000 of fictitious municipal warrants of the city of Weatherford, which were found among the purported assets of the bank at the time of its examination in July, 1919. In regard to the warrants held by the bank, the report of the 12th of May, 1919, by this defendant, under the item of resources, includes as "securities with the banking board" the sum of $1,449.26. As to this particular item, at the time the examination of the bank was made in July, 1919, the defendant confessed that the warrants deposited with the banking board as security in the sum of $1,449 were forgeries. As to this particular item the evidence is uncontradictory that it was included in the report, and the evidence is conclusive that as to that particular item the report was false. As to the evidence as to the notes being included within the report, it is circumstantial, but, in our opinion, the circumstances are such as to lead to no other conclusion than that the defendant considered and included the false and forged notes as part of the resources of the bank in making the report on the 12th day of May, 1919, as charged in the information. We deem the evidence amply sufficient to sustain the verdict and judgment.

Further, it is contended that the court erred in giving certain instructions. This assignment of error is not supported by the citation of any authority. The particular instruction complained of is not copied in the brief. The petition in error complains of the instructions Nos. 3, 4, 5, and 6. From the argument advanced we surmise that instruction No. 4 is the one contended to be prejudicial. This instruction reads as follows:

"You are instructed that every officer, director, agent or clerk of any bank doing business under the laws of the state of Oklahoma, who shall willfully, and knowingly subscribe to or make any false report, with the intent to deceive any person as to the condition of such bank, shall be deemed guilty of a felony, and shall be punished by a fine not to exceed one thousand dollars or by imprisonment in the penitentiary not to exceed five years, or by both such fine and imprisonment."

Said instruction appears to be a fair exposition of the statute upon which this prosecution was based. We fail to discover any reason why the giving of this instruction was prejudicial to the defendant, and counsel has failed to impress this court with any sound reason for holding the same erroneous.

Lastly, it is contended that the trial court erred in overruling defendant's application for a continuance. This application was based on the ground of the absence of one of the counsel for defendant, the motion containing an allegation that said counsel was ill and unable to participate in the trial. Defendant, prior to making the application, had employed two attorneys to represent him: Mr. A.J. Welch, of Clinton, Okla., and Mr. T.W. Jones, Jr., of Weatherford, Okla. The application was presented to the trial court by the latter attorney. The allegations in the motion for a continuance were substantially as follows:

That Mr. T.W. Jones, Jr., had been employed by the defendant in an advisory capacity in the trial of the case. That he is physically unable to hear the answers of witnesses and jurors to questions asked, and unable to hear the questions and rulings of the court thereon. That A.J. Welch, of Clinton, Okla., was employed to try the case and has the entire charge of the preparation of said case for trial. That the said Welch was present in court on the day preceding the making of the affidavit and expected to be present when the case was called for trial, but was taken sick and confined to his bed on the evening preceding and is now sick and confined to his residence in Clinton, Okla., and has in attendance upon him Dr. A.J. Jeter of Clinton, Okla., whose certificate under oath as to the sickness of the said A.J. Welch is attached and made a part of the motion. That defendant, by reason of the sudden sickness of the said Welch, has been unable to employ other counsel and to give them sufficient time to make preparation for the trial. That said case is founded upon a number of instruments which will require careful examination and discussion in order to prepare for said trial. That the said Welch has prepared a defense in the case which is technical and requires study on the part of counsel trying the case and a detailed examination of the witnesses offered. That said Jones is not familiar with said defense and is unable to present the same, even though he could hear the testimony. That the motion is not made for the purpose of delay, but in order that substantial justice may be done.

The motion was subscribed and sworn to by T.W. Jones, Jr., and attached to it was the following:

"Dr. A.J. Jeter, Clinton, Okla. This is to certify that Mr. A.J. Welch is sick with a light case of influenza and it is unsafe for him to leave the house or to be in public on account of infection. Resp. A.J. Jeter, M.D.

"Subscribed and sworn to before me this 4th day of November, 1919. V.F. Carleton, Notary Public.

"(Seal) My commission expires November 29, 1922."

When the motion came on for hearing the following proceedings were had:

"By the Court (after examination of the foregoing motion for continuance): Is there anything you want to say about this, Mr. Jones?

"By Mr. Jones: Nothing, only, as your honor knows, I can't try the case. Mr. Welch is sick and the doctor is in attendance upon him and the matter having come up at this late date Mr. Anderson couldn't get other counsel to present the matter at this time, and your honor please, Mr. Welch has had the entire charge of the case as far as the court proceedings are concerned and has prepared the case and if your honor has seen the information, there are a great number of instruments involved in this matter — it is a matter that counsel will have to study carefully in order to prepare the defense and it is a serious matter to the defendant and I think, your honor, please, he ought to be given —

"By the Court: The court has read the application and considered it, and in view of all the circumstances I think I will allow a postponement until tomorrow morning at nine o'clock, during which time the defendant may make such arrangements as he sees fit — the case will go to trial tomorrow morning at ten o'clock.

"By Mr. Jones: Will the court note our exceptions to the ruling on the motion?"

On the following day when the case was again called for trial the following proceedings were had:

"By the Court: The first case on the call this morning is the case of the State of Oklahoma v. J.H. Anderson — What says the state?

"By the County Attorney: The state is ready.

"By the Court: What says the defendant?

"By Counsel for Defendant (E.L. Mitchell): I want to say that I am appearing in this case this morning for Mr. Welch, on motion — its a motion for continuance.

"By the Court: Let's see your motion, Mr. Mitchell."

Whereupon Mr. Mitchell presents to the court an application for continuance filed in this court on this date, which application, with all indorsements thereon, is as follows:

"State of Oklahoma v. J.H. Anderson. Application for Continuance.

"Comes now the defendant and makes this additional application for continuance of this cause and says:

"(1) That he has a just and legal defense to the charge made against him in the information; that owing to the present illness of his attorney, A.J. Welch, he cannot safely go to trial of this cause at this time; that he employed said Welch to represent him in this case some two months ago, and that he employed no other attorney in the case except T.W. Jones, who was employed only in an advisory capacity; that said Jones is so nearly deaf that it is impossible for him to participate in this or any other trial, and he never attempts to conduct the trial of a case, and for this reason said Jones has made no preparation or study of the case for trial, and is wholly unable to appear as attorney in the case.

"That said A.J. Welch is confined to his bed at home ill, unable to attend court, and a doctor's certificate has been presented and filed with the application filed herein yesterday; that said Welch had prepared the defense herein, and was ready and able, and but for his recent and present illness would have appeared in this trial and conducted the defense herein, but is wholly unable to so act by reason thereof.

"That, owing to the nature and character of the case, the information containing some 40 typewritten pages, defendant is not able, and it is impossible, to employ other counsel to take charge of his case and present his defense on so short a time, and become familiar with the case so that the same may be legally and properly conducted and his rights therein protected. Defendant says that the charges made in the complaint are untrue. Defendant says that this is the first term at which this case was called; the preliminary having been only about 15 days ago.

"Said Welch did not take sick until the day before the case was set for trial, and defendant talked with him that day, when he still hoped to be able to take charge and try the case, but went to bed under the doctor's care the evening before, and now is too ill to attend court.

"This application is not made for delay, but that he may have justice in a fair and impartial trial. Wherefore defendant moves that this cause be continued for the term.

"J.H. Anderson.

"Subscribed and sworn to this 4th day of Nov.

"R.B. Strong, Court Clerk."

"State of Oklahoma, Custer County.

"Comes now E.L. Mitchell and makes oath in due form of law, in addition to the foregoing application for continuance, and says: That he was only consulted in this case the first time the evening of November 4th, and that he was then requested by A.J. Welch to appear in court and present this application for a continuance and do whatever he was able to do on behalf of the defendant; that owing to the nature of the case he has not even been able to or had the time to read the information or to discuss the defense of the case with the defendant, and but very briefly with the said Welch.

"That he has no information whatever as to the defense in this case, and has not been able to talk with any of the witnesses or to read any of the pleadings or consult with any person in reference thereto, except the said Welch, and was unable, on account of the illness of the said Welch, to obtain any information from him with reference to the facts or the preparation of the case. E.L. Mitchell.

"Subscribed and sworn to this 4th day of Nov., 1919.

"R.B. Strong, Court Clerk."

When the supplemental motion for a continuance was presented the state asked leave to make a counter showing, which was granted, and the county attorney thereupon interposed a showing to the effect that Mr. A.J. Welch, one of the attorneys for the defendant, upon whose alleged illness application for a continuance had been presented the day previous, was present at his office on that day, and had transacted business at his office by dictating a letter to his stenographer, and further, on said day had discussed certain business matters with a justice of the peace in the city of Clinton, and in addition thereto the state was permitted and did introduce Mr. R.P. Phillips, a practicing attorney at Arapaho, Okla., who testified, in substance: That on the morning the supplemental motion for a continuance had been presented, and just a short time prior thereto, Mr. A.J. Welch had called him by phone with reference to certain civil cases in which they were both interested, on opposite sides, to find out if the side represented by Mr. Phillips would be ready for trial, and in the conversation Mr. Welch stated that he would agree to a continuance of the cause, that he had some cold, a slight attack of flu, or something like that.

It has been repeatedly held by this court, and requires the citation of no authority, that applications for a continuance are addressed to the discretion of the trial court, and that the trial court's action on such an application will not be disturbed unless a manifest abuse of discretion appears. Absence of counsel is not made one of the statutory grounds for a continuance. Section 5045, Rev. Laws 1910.

If, however, the trial court's action in overruling an application on this ground resulted in depriving the defendant of the benefit of counsel, or even if it appeared from the record that the defendant had a substantial defense to the charge which he was unable to present by reason of the absence of counsel, this court would unhesitatingly set aside a conviction for failure to grant a reasonable continuance.

In this case, however, it appears that defendant had employed two counsel, one of whom was present in court and presented the application. In the application presented by him he asks that a continuance be granted in order that the other counsel may present a technical defense. What this defense is is not stated, and in view of the confession made by the defendant in this case the court is at a loss to surmise that defendant had a defense other than that which was afterwards presented to the jury and urged in this court, to wit, the failure of the state to make out its case.

While this court has always regarded favorably the right of a defendant to be heard and present a substantial defense to any criminal charge lodged against him, we have never been impressed with the necessity of delaying a criminal prosecution merely for the purpose of affording an opportunity to present only technicalities not directed to the substantial merits of the prosecution.

The record in this case shows conclusively that the defendant was the only person who had any knowledge of the falsity of the state's case, if it were false, and he certainly had time to explain his apparent criminal conduct as made out by the state's case, if such an explanation could have been made consistent with his innocence. This he did not do, nor does he pretend in any of the motions presented, nor, if a new trial should be granted him, that either he or any other witness will be able to make an explanation of his conduct which would in any degree raise a reasonable doubt of his guilt.

It appears conclusively from the foregoing excerpts of the record that the trial court granted a continuance for one day in order to permit him to make arrangements for other counsel if he desired to do so, and it further appears that thereafter he was represented by another very able counsel who conducted his trial, cross-examined the state's witnesses, and saved numerous exceptions to the court's rulings throughout the trial.

In Payne v. State, 10 Okla. Cr. 314, 136 P. 201, it is held:

"An application for a continuance, for the term, on the ground of the absence of leading counsel, is properly denied, where the defendant is duly represented by his other counsel."

In the body of the opinion it is said:

"To reverse the case on the ground here set up with reference to the absence of counsel would be to place it within the power of counsel to control the running of the courts and the disposition of cases."

See, also: Vance v. Territory, 3 Okla. Cr. 208, 105 P. 307; Snyder Co-op. Ass'n v. Brown et al., 70 Okla. 13, 172 P. 789.

We think it evident that there was no manifest abuse of discretion in overruling the motion and application for a continuance in this case. Further, there is no reason to believe that upon a second trial an intelligent and honest jury would arrive at any other verdict than that of the guilt of the accused. It appearing from the motion for a continuance that the application was made solely for the purpose of permitting the defendant to present a defense entirely technical in its nature, we think it would be a travesty on justice to set aside an apparently righteous judgment for such a reason. The willful and unlawful spoliation of the funds of a bank by its officers is more dangerous to the depositor and to the public generally (in that it destroys confidence in the entire banking system, both federal and state, and strikes a blow at the very foundations upon which the business of the country is based) than is the action of a highwayman who takes the funds of the bank at the point of a gun. The law should be enforced against one in the same measure and with the same certainty that it is enforced against the other.

The judgment is affirmed.

DOYLE, P.J., and BESSEY, J., concur.