Drake v. State , 2 Okla. Crim. 643 ( 1909 )

First. There is nothing in the record in this case which shows whether the defendant gave bond and is legally at liberty, pending his appeal, or is confined in jail. If the defendant appears and gives bail, this fact should appear in the record. If the defendant is committed to jail in default of bail, this fact must also appear. Unless the defendant is either under bond or confinement, this court has no assurance that any judgment which it renders will be complied with, and it is a waste of time for this court to pass upon the case; but, as this point has never been passed upon by this court, we deem it to be fair to all parties that we announce this rule before enforcing it. Counsel will therefore take notice and prepare their cases-made upon this basis in the future.

Second. Upon authority of Ex parte Flowers, ante, p. 430, 101 Pas. 860, Salter v. State, ante, p. 464, 102 P. 719, and DeGraff v. State, ante, p. 519, 103 P. 538, previously decided, we must hold the information in this case to be fatally defective, because it is not verified by the positive affidavit of the affiant. For the authorities upon which we base this conclusion see the cases cited and discussed in the above cases.

Third. The facts stated in the information do not constitute the offense of extortion, which is a misdemeanor, but do constitute the offense of obtaining money under false pretenses, which is a felony. County courts have no jurisdiction of felonies.

There is no such thing as agency in the commission of crime. All persons who are concerned in the commission of a crime are principals, and should be prosecuted and convicted as such. This information was filed under section 2498, Wilson's Rev Ann. St. 1903, which is as follows:

"Every person who commits any extortion under color of official right, in cases for which a different punishment is not prescribed by this chapter, or some of the statutes which it specifies as continuing in force, is guilty of a misdemeanor."

The indictment does not charge that the defendant occupied any official position, so he could not have committed extortion "under color of his official right." His representation that he was authorized by the county attorney of Creek county is alleged to be false, so his offense was that of obtaining money under false pretense. If it had been charged that the defendant did represent the county attorney, and that the said county attorney had in fact authorized him to make the proposition alleged to have been made, and that he thereby obtained the money described in the information, then both the defendant and the county attorney, if such allegations were sustained by the testimony, would be jointly guilty of extortion, because the money would have been obtained under the color of the county attorney's office with his assent thereto. But as it is alleged that the representations made were false, and that the county attorney had not authorized them to be made, the offense charged is, beyond dispute, that of obtaining money under false pretenses, and the defendant should be prosecuted for that offense. We cannot understand why the defendant was prosecuted for a misdemeanor, when the facts alleged clearly constitute a felony. We are therefore forced to hold that upon this ground the motion to set aside the information should have been sustained.

For the reasons hereinbefore given, the judgment is reversed, and the case is remanded, with directions to the county attorney of Creek county to proceed against the defendant for obtaining money under false pretense.

DOYLE and OWEN, JUDGES, concur.