Hunter v. State, A-11840

• Decision Date: 10 November 1953
• Docket Number: No. A-11840,A-11840
• Citation: 264 P.2d 997,97 Okla.Crim. 402
• Parties: HUNTER v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 997

264 P.2d 997

97 Okla.Crim. 402

HUNTER v. STATE.

No. A-11840.

Criminal Court of Appeals of Oklahoma.

Nov. 10, 1953.

Rehearing Denied Dec. 30, 1953.

Syllabus by the Court.

1. A variance in a criminal case is an essential difference between the accusation and the proof, and a variance is not material unless it is such as might mislead the defense or expose the defendant to the injury of being put twice in jeopardy for the same offense.

2. Where information alleges obtaining money by means of a false and bogus check, the proof must substantially comply with the allegations of the information or the defendant is entitled to his discharge on the grounds of a material variance between the allegations of the information and the proof.

3. Hearsay evidence related by a witness without objection on the part of counsel for the accused will not constitute reversible error unless this court can say from an examination of the entire record that the reception of such hearsay evidence was a substantial factor in causing the jury to convict the accused.

4. An accused on appeal may not complain of the commission of error which was favorable to him.

Sam J. Goodwin and C. H. Bowie, Pauls Valley, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Fred Hansen, First Asst. Atty. Gen., for defendant in error.

JONES, Judge.

The defendant Clark Hunter was charged by an information filed in the District Court of Garvin County with the crime of obtaining money by means and use of a false and bogus check, to wit $768.17, from one O. G. Hall; was tried, convicted, and pursuant to the verdict of the jury was sentenced to serve a term of one year and one day in the State Penitentiary and to pay a fine of $500 and has appealed.

Two assignments of error are presented in defendant's brief. First, there was a fatal variance between the allegations of the information and the proof of the State, and the trial court accordingly erred in not instructing the jury to return a verdict of not guilty on account of such variance. Second, the trial court committed error in admitting hearsay evidence over the objection of the accused.

The evidence of the State, briefly stated, shows that on February 26, 1947, the defendant went to the Wynnewood livestock sales barn where one O. G. Hall and R. L. Murphey conducted a weekly sale of livestock brought to the sales barn for auction. Owners of livestock would bring their livestock to Hall and Murphey and it would be sold by them to the highest bidder and Hall and Murphey received three per cent of the sales price as their commission for handling the sales. On February 26, 1947, the defendant appeared at the sales barn and was the highest bidder for two cows, six calves, seventeen hogs, and four horses, and the total amount of his bids was $768.17, for which the defendant gave a check on the First State Bank of Dodson, Texas, to the Wynnewood Livestock Sales Company. Hall and Murphey accepted the check and paid to the customers who brought the various heads of livestock sold to the defendant the amount bid by the defendant less their three per cent commission. In turn, Hall and Murphey sent the check through their bank for collection and payment was refused and a protest fee of $2 was charged to the endorsers. The check was sent through for collection a second time and again payment was refused by the bank on account of insufficient funds to the credit of the maker of the check to pay the same.

We were considerably impressed with the apparent substantial merit to the first assignment of error upon our first consideration of it, because unquestionably the defendant received certain heads of livestock which he purchased at the sales ring, and the accused contends that since the information alleges that he received money in exchange for the bogus check, when in reality he received livestock, that there was a material variance between the allegations of the information and the proof.

In the case of McCoy v. State, 92 Okl.Cr. 412, 223 P.2d 778, 780, this court stated:

'But what constitutes a variance in a criminal case sufficient to entitle an accused to a new trial? This court has held that a variance in a criminal case is an essential difference between the accusation and the proof, and that a variance is not material unless it is such as might mislead the defense, or expose the defendant to the injury of being put twice in jeopardy for the same offense. Tiger v. State, 54 Okl.Cr. 202, 16 P.2d 889; Brashears v. State, 38 Okl.Cr. 175, 259 P. 665; Woods v. State, 22 Okl.Cr. 356, 366, 211 P. 519.'

However, a closer study of the facts shows that the county attorney properly charged the accused with obtaining money by means of the bogus check. R. L. Murphey, co-partner with Hall in the ownership of the Wynnewood livestock sales company, explained the procedure followed at the sales barn. Mr. Murphey testified 'Q. The property supposed to have been paid for by that check, was that your property? A. It belonged to customers, customers who bring property there for sale, and when it is sold the purchasers pay for it to us, and we pay the customers.

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'Q. What is your source of income for selling this property? A. Three percent.

'Q. Is that paid by the seller or the buyer? A. By the seller.

'Q. The property which was covered by this check was paid for by you and Mr. Hall, to the people who brought that stock in there, is that right? A. Yes, sir.

'Q. And you put the money in the bank to cover this check or did Mr. Hall do that? A. Mr. Hall actually did that.'

Mr. Hall testified:

'Q. Let me ask you this question, the stock listed on the face of the check, did you and Mr. Murphey pay for the stock? A. Yes, sir, we did.

'Q. Who did you pay for the stock? A. The boys that brought the stock in to the sales barn, the consignees of the stock.

'Q. You mean the consignors? A. Yes, sir.

'Q. The cattle and horses and hogs were paid for by you and Mr. Murphey at the time the sale was over that day? A. Yes, sir, we collected our money after the sale was over and we paid for this stock.

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'Q. Who suffered the loss on the cattle and the hogs and the horses? A. Mr. Murphey and I have suffered the loss up to now, we paid for the stock, we had to take up that check.

'Q. And you were the sole owner of the Wynnewood Livestock Sales Barn? A. That is right.

'Q. Has there ever been any correspondence between the defendant and yourself regarding this matter? A. I never saw him until today.

'Q. And that check was given you on what day? A. February 26, 1947.

'Q. Have you or did you attempt to locate him before that time, that is before this time and after the check was given? A. Yes, sir.

'Q. Was he ever located? A. Probably a year and a half later w...