Adair v. State
| Citation | 180 P. 253,15 Okla.Crim. 619 |
| Decision Date | 22 April 1919 |
| Docket Number | A-2741. |
| Parties | ADAIR v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Technical accuracy is not required in criminal complaints before a justice of the peace on an examining trial; and, where the complaint intelligently informs the defendant of the offense with which he is charged, it is sufficient.
Where upon an examining trial on a felony charge the evidence shows that any felony has been committed, and that the defendant is probably guilty thereof, it is the duty of the examining magistrate to hold the defendant for the offense shown by the evidence and to indorse upon the commitment the offense, but where such an indorsement is not made, if the transcript of such magistrate of the case filed in the district court shows such order of commitment, this is sufficient to give the district court jurisdiction.
In an information for the offense of larceny of live stock which describes the live stock stolen as "two certain steers" is a sufficient description of the property charged to have been stolen.
Instructions should be clear-cut; and, where they are involved and place the burden of proving an affirmative defense upon the defendant, they constitute reversible error.
Evidence of good character may generate a reasonable doubt of guilt where without such good character no reasonable doubt of guilt would exist, but evidence of good character must be considered in connection with all the other evidence, facts and circumstances appearing in the trial; and, if after considering all of the evidence, including that as to good character, the jury entertain no reasonable doubt of guilt they should convict, notwithstanding the evidence of former good character.
The evidence carefully considered in this case, and held insufficient to support the verdict found and the judgment rendered.
When the evidence is insufficient to support the verdict rendered, it is the duty of the trial court to sustain a motion for a new trial.
Where the trial court overrules a motion for a new trial when the evidence is insufficient to support the verdict, this court will reverse the action of the trial court and grant a new trial of the case.
Appeal from District Court, Craig County; Preston S. Davis, Judge.
Watt Adair was convicted of larceny of live stock, and he appeals. Reversed and remanded.
Theo D. B. Frear, of Vinita, for plaintiff in error.
S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
The plaintiff in error, Watt Adair, hereinafter designated as defendant, was informed against for the offense of larceny of domestic animals, convicted, and sentenced to imprisonment in the penitentiary for a term of five years, and to pay all the costs of this prosecution, and that he stand committed to said prison until such costs are so paid. To reverse the judgment rendered he prosecutes this appeal.
The defendant moved for a continuance on the ground of the absence of Red Getty, for whom a subpoena had issued but had not been returned, and his attorney filed an affidavit as the basis of such continuance, and averred that said witness, if present, would testify "that he saw the party from whom the defendant claims to have bought the steers on the highway east of the residence of the defendant." The court overruled the motion for a continuance, and the defendant excepted.
The defendant moved the court to set aside the information upon the ground "that the defendant had not had a preliminary examination as required by the Code of Criminal Procedure of this state; that the court had no jurisdiction of the person of the defendant." The court overruled the motion, and the defendant excepted.
The charging part of the amended information, upon which the defendant was tried, is as follows:
"That the said Watt Adair, in the county and state aforesaid, on the _____ day of January, 1915, did knowingly, willfully, and unlawfully and feloniously, by stealth and without the consent of the owners, steal, take, and carry away two certain steers, then and there of the aggregate value of $75, which said steers were then and there the property of W. F. Friend and Claud Nugent, with the unlawful and felonious intent on the part of the said Watt Adair to then and there deprive the said W. F. Friend and Claud Nugent thereof, and convert the same to his, the said Watt Adair's, own use, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state."
The defendant demurred to the information upon the following grounds: That it does not conform to the requirements of the law of criminal procedure, in that it does not charge the offense in the language of the statute; that more than one offense is charged in the information; that the facts charged do not constitute a crime; that the court has no jurisdiction of the person of the defendant. The court overruled the demurrer, and the defendant excepted.
The material, uncontradicted evidence is that W. F. Friend and Claud Nugent were partners and dealers in live stock, and had a herd of cattle in a pasture, in which were included the two steers alleged to have been stolen; that said pasture was near the home and pasture of the defendant; that all of said cattle were removed by the said owners except the said two alleged stolen steers, that one of the said two steers was blind in one eye, and the other steer was lame, and were left in the pasture near the defendant's home, and were not removed from the said pasture by consent of their owners; that the said steers were missed, and that the said steers were in the possession of defendant from November to January, and during said time that said steers were openly kept in the lot and in the pasture of the defendant, which lot and pasture were each near a road frequently traveled by an owner of said steers; that in January, the said two steers, together with two other cattle, were openly sold by the defendant; that the purchase price of said cattle so sold by the defendant was paid for in a check; that the payment of said check was held up on the theory that the said two steers were not the property of defendant; that said defendant sent for and met one of the owners of the two steers, and said to him that he supposed that he (defendant) had gotten hold of and sold two of said firm's steers; that he had done so ignorantly; that he bought them from a stranger, paying $20 for them, and offered to pay for the said two steers; that the said steers were of the value of $75; that the defendant offered the check he had received from the sale of said four head of cattle to the owner of the said two steers, which check the said owner refused, and stated to defendant that he must bring him $75 in cash, and that afterwards, through the party to whom the defendant had sold the said steers, the defendant paid the said owner $75 for the said two steers, and that for 20 years previous to this trial the defendant had resided near where tried, and that the defendant's character was that of an honest man, which was not contradicted by the state; and that the said two steers were left by their owners in a pasture around which the fence was not in good repair.
The defendant testified, which was not denied by the state, that he, defendant, bought the said two steers about dusk, near the home of the defendant, from a stranger just before Thanksgiving Day, paying the said stranger $20 for said steers, and turned them into his, defendant's, lot; that he did not ask or know the name of the said stranger, who was accompanied by another man on horseback, and that they had five or six cows which they were driving in addition to the said two steers; that after said purchase, said steers were in the lot or ran together with defendant's cattle in his pasture, which pasture ran about one-half mile along a public traveled road, which one of the owners of said steers traveled two or three times a week, and could, had he looked, have seen the said steers in defendant's pasture.
There was also evidence that one of said owners of said steers had while passing, looked into the pasture of the defendant, but had never seen said steers in said pasture, and that after the said two steers were missed that one of the owners of said steers was at the home of the...
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