Finley v. State

• Decision Date: 11 June 1947
• Docket Number: A-10619.
• Citation: 181 P.2d 849,84 Okla.Crim. 309
• Parties: FINLEY v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

181 P.2d 849

84 Okla.Crim. 309

FINLEY v. STATE.

No. A-10619.

Court of Criminal Appeals of Oklahoma

June 11, 1947

Appeal from District Court, Oklahoma County; Albert C. Hunt, Judge.

George Finley was convicted of bribery, and he appeals.

Affirmed.

Syllabus by the Court.

1. An univerified complaint is good for all purposes, except as the basis for a warrant of arrest.

2. Where a warrant of arrest is issued on an unverified complaint, objection thereto must be raised at the earliest opportunity by motion to quash before arraignment and plea.

3. When a defendant has been apprehended on a warrant of arrest based on an unverified complaint, and is arraigned and submits to the jurisdiction of the magistrate, and has a preliminary trial on said complaint without ever challenging the sufficiency of the complaint for lack of verification that defect is waived.

4. § 382, O.S.A. Title 21, is a general bribery statute which applies to every executive, legislative, county, municipal judicial, or other public officer, or any person assuming to act as such officer, who corruptly accepts or requests a gift or gratuity as a reward to influence his behavior in office.

5. § 1481, O.S.A. Title 21, defines extortion as the taking of property from another with his consent, induced by a wrongful use of force or fear, or under color of official right.

6. While bribery and extortion are separate and distinct offenses, the same facts may be the basis for the charge of either extortion or bribery, because if a pretense of official authority to do the act for which a bribe is given, the taking of it is extortion, as well as bribery.

7. Where an information stripped of its surplusage is looked at in its essential allegations, and it appears therefrom that the intent and purpose of the accused was to request and receive a bribe, the information is good as against a demurrer based on the contention that the charge was for extortion and not bribery.

8. A basic distinction as to whether a crime charged in an information is bribery or extortion is whether the facts alleged show the officer acted under color of official right. If he did, the crime would be for extortion. If he was not so acting, but was seeking the payment of a reward to influence him in his official conduct, the crime would be for bribery.

9. The use of photographs of persons of questionable or criminal character, obviously taken from the files of a bureau of criminal identification, on voir dire to determine acquaintance of the jury panel with such persons, who may or may not be called as witnesses for the State, is highly prejudicial and improper.

10. It is not error for the trial court not to permit cross-examination of the State's chief witness as to the liquor she bought for bootlegging, and, from whom she purchased the same, where the questions so propounded bear no relevancy to the matter at issue.

11. Criminal intent is the essence of all criminal liability and one who, though he may be a participant in the actual commission of a crime, acted without criminal intent, cannot be regarded as an accomplice.

12. To be regarded as an accomplice to the commission of a crime, a person must be culpably implicated in the commission of the crime with the accused, that is, he must be an associate; one who voluntarily cooperates, aids, or assists in the commission of the crime; he must be possessed of criminal intent.

13. The true test of whether a person is an accomplice is, 'Was his participation in the crime such as to make him criminally corrupt?'

14. The testimony of an accomplice must be corroborated by such other evidence as to connect the defendant with the crime.

15. Persons who, when a crime has been suggested, make an early disclosure thereof to the authorities and under their direction continue to act with the guilty party but for the purpose of bringing them to justice, are not accomplices in the sense that their testimony requires corroboration.

16. One who pretends to consult and act with another in the commission of a crime, but only for the purpose of enabling them to consummate their crime, are not accomplices in the true sense but are what are termed as 'feigned accomplices.'

17. A 'feigned accomplice' must be distinguished from other accomplices by reason of lack of criminal intent.

18. Testimony of a feigned accomplice does not require corroboration.

19. If an officer or decoy suggest the commission of a crime, or artificially propagates its inception, or lures another otherwise innocent person to commit the crime, and the decoy performs an act essential to the crime, a conviction cannot be had on such a basis for that is entrapment.

20. Ordinarily, if the intent to commit a crime originates in the mind of the defendant, it is not against public policy for peace officers or persons acting under their direction to set a trap for him suspected of planning the commission of a crime, and if he commits the crime, even though encouraged by the officers or persons acting under the direction of those who laid the trap, a conviction can be had on such a basis for that is not entrapment.

21. The instructions in all cases should be applicable to the facts and to all proper deductions and interpretations of them and not to questions not presented or covered by the evidence.

22. A defendant is not entitled to an instruction on an issue not raised by the evidence.

23. A party is entitled to have the jury instructed on the law governing the issues according to his theory, providing, such theory is tenable as a matter of law, or finds possible support in the evidence. He is not entitled to complain because the court failed to give his requested instructions if such statement of law is outside the issues to be determined by the jury or not within the evidence, even though the requested instruction did state a rule academically sound.

24. Record examined. Held, facts did not warrant the giving of an instruction on either the charge of accomplice or entrapment.

25. Improper remarks made in argument by the county attorney to the jury, where immediately corrected, and immediately covered by the defendant's requested instruction to the jury 'not to regard the remarks as evidence;' to form the basis of error warranting reversal of a case, the remarks must be such as could be calculated to deprive the defendant of some substantial right or such as would be calculated to arouse the passion and prejudice of the jury and sway them in arriving at a just verdict.

Looney, Watts, Fenton & Eberle, of Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

BRETT Judge.

The defendant, George Finley, a constable in Oklahoma County, was charged, tried, convicted of the crime of Bribery, and his punishment assessed at one year in the County Jail and a fine of $500. The jail sentence was suspended.

There are numerous assignments of error, which we will consider under the various propositions set forth in the defendant's brief.

In his first proposition, George Finley complains that the preliminary information was not sworn to by W. N. Monger, Assistant County Attorney, the complaining witness. This objection was first raised in the district court, after the information had been filed. In this connection, the law is well settled by many decisions of this court, as well as the general rule that an unverified complaint is good for all purposes, except as the basis for the issue of a warrant of arrest. If, however, a warrant of arrest is issued on an unverified complaint, the law is likewise settled that, the objection must be raised at the earliest opportunity by a motion to quash before arraignment and plea. When the defendant has been apprehended, on an unverified complaint, and arraigned and submits to the jurisdiction of the magistrate, and has a preliminary trial on said complaint without ever challenging the sufficiency of the complaint for lack of verification, that defect is waived. State v. Jackson, 57 Okl.Cr. 277, 48 P.2d 861; Steiner v. State, 33 Okl.Cr. 105, 282 P. 1002; Conti v. State, 45 Okl.Cr. 105, 282 P. 182. If the defendant had filed his motion to quash the warrant of arrest, prior to his arraignment and plea of not guilty, his plea would have been well-taken and should have been sustained. Conti v. State, supra. But, not having done so, he waived the objection and cannot now be heard to complain of his arrest on the unverified complaint. This objection is therefore without merit.

The defendant's next contention, under his first proposition, is that the court erred in not sustaining his demurrer to the information. This contention is founded on the proposition that the information charges extortion and not bribery. For a consideration of this contention, the charging part of the information reads as follows, to wit:

'That is to say, the said defendant, George Finley, being then and there Constable of Rural District No. 2, Oklahoma County, State of Oklahoma, appointed, qualified and acting as such, and said defendant, Finley being then and there charged by law to perform the duties of his office with fidelity, and not to knowingly receive, directly or indirectly, any money or other valuable thing for the performance or non-performance of any act or duty pertaining to his office, did then and there corruptly receive and accept, for the use and benefit of himself, a certain sum of money, to wit: Forty and 00/100 Dollars ($40.00), good and lawful money of the United States of America, and one pint of Green Label, tax paid, James Stewart brand, straight bourbon whiskey, as a gift and gratuity in consideration of the non-performance of the official

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