Hughes v. State , 7 Okla. Crim. 117 ( 1912 )

The petition alleges 50 assignments of error, 7 of which go to the sufficiency of the information, and will be considered together.

It is contended that the amended information should have been set aside on the defendant's motion, and that his demurrer thereto should have been sustained, because it was not verified properly, and it fails to allege that the defendant had a preliminary examination, and that there is no authority of law for prosecuting by information cases of this kind. Each of these contentions have been decided adversely by this court in the following cases: Henson v. State, 5 Okla. Cr. 201, 114 P. 630;In re McNaught, 1 Okla. Cr. 528, 99 P. 241; Canard v. State,2 Okla. Cr. 505, 103 P. 737, 881, 139 Am. St. Rep. 949; Blair v.State, 4 Okla. Cr. 359, 111 P. 1003; Heacock v. State,4 Okla. Cr. 606, 112 P. 549. The order denying the motion to set aside and the order overruling the demurrer were properly made.

The next assignment goes to the action of the court in overruling a motion for continuance. When the case was called for trial, the defendant filed his application for continuance, based on the absence of one Geo. W. Delk of Atoka county, for whom a subpoena had been issued and service obtained in Atoka county. No reason appears of record why this witness did not attend. No attachment was asked for, but the court of its own motion upon overruling the application for a continuance ordered an attachment for the absent witness. The application does not show diligence, and no abuse of discretion appears from the record. The rule is well settled that the granting or refusal of a continuance, particularly for causes not enumerated in the statute, is a matter largely within the sound discretion of the trial court, and nothing but the abuse of this discretion will warrant the appellate court in interfering with the judgment.Vance v. Territory, 3 Okla. Cr. 208, 105 P. 307. We think the application was properly denied.

For the same reason the contention that the court erred in permitting the prosecution to indorse the names of additional witnesses on the information, when the case was called for trial, is without merit. Steen v. State, 4 Okla. Cr. 309, 111 P. 1097.

The overruling of the defendant's challenge for cause to the juror Homer Landon is assigned as error. This assignment is without merit. The examination of this juror did not show him to be disqualified within the statute, and the decisions of this court thereon.

The eleventh assignment of error is that the court erred in overruling the defendant's motion to require the prosecution to elect upon which count it would stand. Upon the trial it appeared without contradiction that the prosecuting witness, Squires, shipped a car load of apples from his home at Wallace, Mo., to the defendant at Lehigh, Okla.; that the defendant was to sell the same and retain 10 per cent. as his commission; that the defendant disposed of all except a few bushels. Squires, coming to Lehigh, demanded the proceeds, and the defendant told him he would settle on a basis of paying Squires $375. This amount Squires agreed to accept in full. The defendant then said that he did his banking business at Atoka, and he would go there and see his banker, and make arrangements for settlement. The defendant left the state that night. The defendant never paid, or caused to be paid, to Squires the money received for the apples, and kept the same and converted it to his own use. This was the transaction alleged as embezzlement in the first two paragraphs of the information. While as a matter of pleading the two paragraphs constitute but one count, the parties and the court considered them as two counts, the first charging embezzlement of the apples and the second embezzlement of the money derived from the sale of the apples. Treating these paragraphs as separate counts, there was no prejudice to the defendant in the refusal of the court to require the state to elect.

No information is insufficient by reason of any imperfection in matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits. It is well settled that, where one felony is set out in various ways in different counts to meet diversities in the proof, no election of counts is required. The state may be required to elect upon which count of an indictment or information it will claim conviction only when felonies not of the same character are charged in different counts in the same indictment or information.

Whether the state should be required to elect upon which count of the information it would stand is in a case of this character in the discretion of the trial court. In this case it was all a question of intent as to whether or not the defendant was guilty of embezzlement of the apples or of the money he derived from their sale, and this was for the jury to pass upon under all the proof in the case, and the court very properly left this fact to be determined by the jury under the instructions given.

After the state had concluded the introduction of its testimony, the defendant's counsel filed a demurrer to the evidence, and asked the court to instruct the jury to return a verdict of not guilty. The question presented is this: Is there any evidence tending to show the commission by the defendant of the offense charged? A sufficient answer is found in the statement herein of the undisputed facts, and this bare outline of the facts by no means represents the full force of the proof presented by the prosecution. In fact, we think it conclusively shows the guilt of the defendant of the crime charged. The defendant did not testify as a witness in the case. The contention that the relation of creditor and debtor, and not that of principal and agent or owner and broker, was created because Squires agreed to accept $375 in settlement, is without merit.

The remaining assignments are based upon instructions requested by defendant's counsel and refused, and on the instructions given by the court. We have examined these assignments of error, and do not think any of them are well taken. The instructions given fairly and correctly state the law of the case.

Of the 50 assignments of error argued in the defendant's brief but one is supported by citation of authority. We refer to this fact for the purpose of saying that this practice of alleging unfounded assignments of error and arguing the same without the citation of authority to support the contentions made should not be indulged in. They presumably cost counsel effort and time, and they needlessly occupy the time of the court and they avail nothing.

Inasmuch as the conclusion reached by the jury is a just one from the evidence, and finding no prejudicial error, the judgment of the district court of Coal county is affirmed.

FURMAN, P.J., and ARMSTRONG, J., concur.