Berry v. State
| Citation | 111 P. 676,4 Okla.Crim. 202,1910 OK CR 178 |
| Parties | BERRY et al. v. STATE. |
| Decision Date | 22 November 1910 |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Upon an information drawn under section 2591, Snyder's Comp. Laws Okl., defining larceny generally, a conviction may be had upon proof, made as provided in section 2592, that the accused found lost property under circumstances which gave him means of inquiry as to the owner thereof, and that he appropriated the same to his own use without making a reasonable effort to discover the owner and restore the property; the latter section not creating or defining a separate offense, but only prescribing a rule of evidence.
Primarily there are two facts which render a confession inadmissible as evidence: First, that it was obtained under any form of compulsion, so that to receive it in evidence would violate the defendant's constitutional privilege against self-incrimination; and, second, that it was made under such circumstances of hope or fear as to create a fair probability of its testimonial untrustworthiness.
Prima facie any confession is admissible in evidence; and, where its admissibility is challenged by the defendant, the burden is on him to show that it was procured by such means or under such circumstances as to render it inadmissible, unless the evidence on the part of the state tends to show that fact.
The admissibility of a confession, where it is challenged, is a question solely for the court after hearing, in the absence of the jury, all the evidence on each side respecting the circumstances under which the confession was made; and the court is vested with a large discretion in determining the matter.
After a confession has been admitted, the defendant is entitled to have the evidence in regard to the circumstances under which it was made given anew to the jury, not that the jury may pass upon its competency or admissibility, but for the purpose of enabling them to judge what weight and value should be given to it as evidence, and upon his request the defendant is entitled to an instruction on that point.
An instruction that the defendant is presumed to be innocent until his guilt is proved by competent evidence beyond a reasonable doubt is not erroneous, but is proper.
Appeal from District Court, Muskogee County; John H. King, Judge.
Arthur Berry and Harrison Kimble were convicted of grand larceny and they appeal. Affirmed.
W. A Killey, Daniel L. Stanley, and George K. Powell, for plaintiffs in error.
Chas West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
In this case the information charged that plaintiffs in error "unlawfully, fraudulently, stealthily, and feloniously did take, steal, and carry away eighteen hundred dollars good and lawful money of the United States, the property of one Milton Ragsdale, with the unlawful and felonious intent to then and there deprive him, the said Milton Ragsdale, of the property aforesaid, and to convert the same to their own use." The evidence for the state showed that Milton Ragsdale lost a pocketbook containing $1,800, and that plaintiffs in error found it; that within a few hours thereafter they learned whose property it was, but nevertheless concealed the fact that they had found it, and immediately took the train to Nacogdoches, Tex., where they were shortly arrested and something over $1,300 of the money recovered from them. After the state had made this proof and rested, plaintiffs in error moved the court to direct a verdict of not guilty on the ground that there was a fatal variance between the allegations of the information and the proof. This motion the court overruled, and its action in so doing is assigned as error.
Snyder's Compiled Laws of Oklahoma defines larceny as follows:
It is urged that each of these sections define a different offense, and that upon an information drawn under section 2591, charging that the defendant did take, steal, and carry away certain personal property of another with the intent to convert the same to his own use, and to deprive such other thereof, a conviction cannot be had upon proof that the defendant found lost property under circumstances which gave him means of inquiry as to the true owner, and appropriated the same to his own use without first making an effort to find the owner and restore the property; the contention being that, where such offense is intended to be charged, the information should specifically set forth the facts enumerated in the latter section. With this contention we cannot agree. We think that section 2591 is the statutory definition of larceny, and that section 2592 only prescribes a state of facts, which, being proved, establishes the offense as defined by the previous section; that it merely enunciates one rule of evidence, a compliance with which proves the crime as previously defined. To constitute larceny, there must be a taking of personal property. It must be done by fraud or stealth, and with a larcenous intent; and these requisites are all present when the facts enumerated in section 2592 exist. The taking is shown when it is proved that the defendant found lost property and took it into his possession. If the evidence shows that he knew to whom the property belonged, or that the circumstances gave him means of inquiry as to the true owner, and he made no reasonable effort to find the owner and restore the property, but on the other hand concealed the fact that he had found it, the taking is then deemed to have been done by stealth. And, when it is further shown that under such circumstances he appropriated the property to his own use or to the use of any other person not entitled thereto, his larcenous intent is established. The Supreme Court of California has so construed these identical sections in People v. Buelna, 81 Cal. 135, 22 P. 396. The syllabus of that case is as follows: "Section 485 of the Penal Code, declaring it larceny for one who finds lost property under circumstances which give him knowledge or means of inquiry as to the true owner to appropriate such property to his own use, etc., does not create a distinct kind of larceny, but declares a rule of evidence which, being fulfilled, constitutes the crime as defined in section 484 of the Penal Code; and it is proper to instruct the jury as to such rule of evidence under an information drawn under section 484 defining larceny in general, if the evidence tends to show an unlawful appropriation by the finder of lost property as described in section 485." In many states where the statutes only define larceny generally as is done in section 2591, and where there appears to be no such statute as section 2592, it is nevertheless held that proof of the facts enumerated in the latter section establishes the crime as defined by the general statute. Flemister v. State, 121 Ga. 146, 48 S.E. 910; State v. Weston, 9 Conn. 527, 25 Am. Dec. 46; People v. McGarren, 17 Wend. (N. Y.) 460; Brooks v. State, 35 Ohio St. 46. And in State v. Boyd, 36 Minn. 538, 32 N.W. 780, it is stated that this was true at common law. Minnesota, however, had a statute similar to section 2592. And in all the cases in the books involving the larceny of lost property we have found none in which the opinion or statement of facts indicated that the indictment alleged the finding, etc., and none holding that such allegations were necessary. See cases cited above; also, United States v. Pearl, 27 F. Cas. No. 16,022, 5 Cranch, C. C. 392; State v. Bolander, 71 Iowa, 706, 29 N.W. 602; State v. Hayes, 98 Iowa, 619, 67 N.W. 673, 37 L. R. A. 116, 60 Am. St. Rep. 219; Com. v. Titus, 116 Mass. 42, 17 Am. Rep. 138. The motion to direct a verdict of not guilty was properly overruled.
It is next contended that the court erred in admitting in evidence a confession made by plaintiffs in error to the sheriff while en route from Texas, because the same was not voluntarily made, but was extorted by fear of punishment and prompted by hope of leniency. When proof of the confession was offered plaintiffs in error objected to its admission on the grounds just stated. The court...
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