Shires v. State , 2 Okla. Crim. 89 ( 1909 )

The first assignment of the petition is that the court erred in overruling the demurrer of defendant to the evidence offered by the state, and it is urged by counsel for defendant that the evidence is wholly insufficient to support the verdict. In the argument of this proposition it is claimed by defendant that there was no competent evidence offered that John F. Reagan was the owner of the mules, and that there was no evidence offered that the mules were taken without John F. Reagan's consent, except the admissions as made by defendant.

If we except a few English cases, the authorities are uniform in maintaining the principle that a conviction should not be had on extrajudicial confessions of the defendant unsupported by corroborating facts and circumstances. Proof aliunde of thecorpus delicti is required. While great caution, founded on experience in the administration of the criminal law, should be observed, that a person charged may not be punished for an alleged crime not actually committed, direct and positive evidence of the corpus delicti is not indispensable. Like any other fact, the subject of judicial investigation, it may be proved by circumstantial evidence. George v. U.S.,1 Okla. Cr. 307, 97 P. 1052; Winslow v. State, 76 Ala. 42; McClain on Crim. Law, § 612; 1 Bishop's Crim. Proc. § 1057; 3 Greenl. on Ev. § 30.

In George v. United States, supra, this court said:

"In many and perhaps most cases, to support a conviction, direct proof that the property was feloniously taken from the person named in the indictment as the owner is necessary. Yet it is not essential in all cases that there should be any direct evidence upon this point. The application of the rule must always depend upon the facts of the case. Appellate courts should carefully consider and guard against so constructing the law that a proper rule of evidence would be perverted into a means of escape from the merited punishment of an offender."

Under the provisions of our Criminal Code domestic animals as named in the act of 1895 (chapter 20, p. 104, art. 1, § 1, Sess. Laws Okla. 1895) are the subject of larceny if taken under such circumstances as would constitute grand larceny at common law, and the indictment or information need not allege the taking to be against the will of the owner and nonconsent is not necessary to be averred. It is therefore not necessary to prove. Consent of the owner would be simply a matter of defense; the maximum penalty being 10 years. However, under the language of this act, the intent to deprive the owner thereof and to convert the same to his (the taker's) own use must be alleged and proved. Hughesv. Territory, 8 Okla. 28, 56 P. 708; Sullivan v. Territory ofOkla., 8 Okla. 499, 58 P. 650. A reference to the indictment will show that in this case, although the charge is alone the stealing of animals, it appears the prosecuting attorney in drawing the indictment included allegations of nonconsent to the taking, and that they were taken "with the felonious intent to deprive the owner thereof, and to convert the same to his (the taker's) own use." The crime of larceny under the general statute of 1893 is defined as follows (section 2465, Wilson's Rev. Ann. St. 1903): "Larceny is the taking of personal property accompanied by fraud or stealth, and with the intent to deprive another thereof" — the maximum penalty being five years. Thus it will be seen that the Legislature in defining the offense has modified the meaning of the word "larceny" as used at common law; so that the taking of personal property accompanied by fraud or stealth, and with intent to deprive another thereof, is larceny, regardless of whether or not it was taken for the purpose of depriving the owner thereof, or for the purpose of converting it to the use of the taker. The charge contained in the indictment in this case is somewhat redundant. It appears that the pleader intended to charge the offense of larceny under the Act of 1895, but the court properly held that the offense as charged was a violation of the general statute. Under any view of the case, we are of opinion that the court properly overruled the demurrer to the evidence. The facts and circumstances proved sufficiently corroborate the voluntary confessions of the defendant to make sufficiency of the proof a question for the jury alone. The proper practice under our procedure where there is any evidence that the crime has been committed, and that it has been committed by the accused, and by none other, is to move the court to direct a verdict on the ground that the evidence is insufficient to warrant a conviction.

Under the provisions of section 5509 (Wilson's Rev. Ann. St. 1903), in any event, the sufficiency of the evidence is a question for the jury, and not for the court. In this case we believe the evidence is sufficient to sustain the verdict. The facts and circumstances proved show that the larceny charged was committed, and that John F. Reagan was the owner of the stolen mules. At that time he was near Clinton with a threshing outfit, and the stolen mules were returned to him by the sheriff in the presence of the defendant. It is argued that the testimony of the witness Copely shows that the mules were delivered to R.F. Reagan, and that this is a fatal variance. This objection is not well taken Under the provisions of our Criminal Code the question of ownership in cases of larceny is of much less importance than it was under the common law. Section 5362 (Wilson's Rev. Ann. St. 1903) provides as follows:

"When an offense involves the commission of an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured is not material."

Martin v. Territory of Okla., 4 Okla. 105, 43 P. 1067;Hurst v. Territory of Okla., 16 Okla. 600, 86 P. 280. The record shows that three days after the theft the defendant was found in the possession of the mules 100 miles from where they were stolen, and was then trying to sell them. The reward was paid, and the mules returned to the owner, at Clinton, in defendant's presence. He makes several voluntary confessions describing where he took the mules from, and how he concealed the stolen property to avoid detection, and how he traveled in going to the place where he was apprehended. Under such circumstances Prof. Greenleaf says:

"It is generally agreed that deliberate confessions of guilt are among the most effectual proofs of the law." (1 Greenl. on Ev. par. 215.)

We believe that the evidence is far from insufficient. It is ample to show ownership, nonconsent, felonious taking, and intent, value, and venue, and supports each allegation of the indictment — this in addition to the voluntary confessions of the defendant. Therefore we have no hesitancy in saying that the facts and circumstances thus shown prove the commission of the crime, and carry conviction of the defendant's guilt.

The instructions given by the court are commendably complete, and fully, fairly, and correctly state the law on every feature of the case. No other instructions were requested, and no objection was made to the instructions as given. Objection is made, and it is assigned as error, that the state, having rested its case on the evidence, immediately requested that the case be reopened for the purpose of permitting the state to introduce additional testimony as to the ownership of the mules. The court granted this request, and the testimony was offered over the objection of the defendant. This was a matter wholly in the discretion of the trial court, and error cannot be predicated thereon. Having carefully examined the entire record, we find no prejudicial error therein. Upon this record a fair and impartial trial was had, and no mistake was made in convicting the defendant.

The judgment of the district court of Custer county is hereby affirmed, and the court below is directed to proceed, without delay, to cause the judgment and sentence to be carried into execution.

FURMAN, PRESIDING JUDGE, and BAKER, JUDGE, concur.