Bivens v. State
| Decision Date | 15 January 1912 |
| Parties | BIVENS v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Where in an indictment for larceny the property is charged to have been taken by fraud, it is not necessary to set out the fraudulent acts relied upon as constituting the fraud.
The distinction between larceny, where the taking is by fraud and embezzlement is determined with reference to the time when the fraudulent intent to convert the property to the taker's own use occurs. In larceny, the criminal intent must exist at the time of taking the property, and it must be taken with intent to deprive another thereof. If, on the other hand, the taker receives the property as a bailment intending at the time a compliance with the terms of the bailment, or to conform to the owner's wishes concerning the property, and he afterwards fraudulently appropriates the property to his own use, intending to deprive the owner thereof, the crime is embezzlement.
Where the owner of personal property voluntarily parts with the possession of the same for a particular purpose, and the person who receives the possession avowedly for that purpose has at the time a fraudulent intention to make use of such possession as a means of converting the property to his own use and does so convert it, the crime is larceny.
A larceny does not deprive the owner of the legal right of possession or right of property which still continues wherever the stolen property may be carried by the thief, and where a thief brings into this state property which he has stolen in another state, he is guilty of larceny here, and he may be convicted in any county into which he has carried the stolen property.
The courts of this state have no jurisdiction to punish for criminal acts committed outside the state, but, in order to ascertain the intention with which an act was done within this state, the acts and declarations of the defendant done and made in any other jurisdiction may be considered in a prosecution for larceny, in order to show the character of the defendant's possession in this state of the property alleged to be stolen.
Appeal from District Court, Tillman County; J. T. Johnson, Judge.
B. B Bivens was convicted of grand larceny, and he appeals. Affirmed.
The state courts have no jurisdiction to punish for criminal acts committed outside the state, but, to ascertain the intent with which an act was done within the state, the acts and declarations of defendant in any other jurisdiction may be considered in a prosecution for larceny to show the character of the original taking.
B. B. Bivens, plaintiff in error, was convicted of the crime of grand larceny and sentenced to serve a term of one year and one day in the penitentiary. The information charges: "The defendant, B. B. Bivens, then and there being, did then and there willfully and unlawfully, fraudulently and feloniously, take, steal, and carry away by fraud, without the consent and against the will of the true owner, forty-five dollars, good and lawful money of the United States and of the value of forty-five dollars, the personal property of one Oscar Weihs, of said county and state, with the unlawful, willful, felonious, and fraudulent intent then and there of him the said B. B. Bivens, to deprive the said Oscar Weihs thereof and to convert the same to his own use and benefit, contrary," etc. At the trial Oscar Weihs testified that he lived in Texas, and first met the defendant in a hotel at Vernon, Tex., on November 19, 1908. From the transcript the following is taken:
"Q. Did you have any other business transactions with Bivens that night? A. Why, we slept together in one bed, and I had some greenbacks, $45, and he had $5 greenbacks. I didn't have but one purse, and I had $12 silver, and I asked him what I was going to do, and he said I will hide it. He says, 'Give it here, I will hide it; I will put it away.' He had a black bill book and put the $45 in it, and he said, 'Where is your silver?' I said, 'I got it down there,' and he said, 'Give it here.' He said, 'If you are scared of me, don't hand it to me.' I said, 'Oh, no; I believe you are all right.' I handed it to him, and he taken this silver and put it in this little purse, and taken the purse and silver and threw it under the pillow inside the sheet around the pillow, and threw the facing of the pillow opening to the north. The bed was extending east and west, and threw the open end to the north with my silver, $11 and something, and he had $45 of my greenbacks, and he put that under his pillow and turned the opening to the south, and went to bed and had the door locked. He asked if I was easy to wake, and I said that I was. The train is due five something, and we got up in the morning, and he woke before I did. Q. What did he say to you with reference to giving this money back? A. He said he would give it back in the morning. Q. What was the value of this money? A. $45 in greenbacks. Q. Worth $45? A. Yes, sir; I reckon. Three tens and three fives. Q. Go ahead. A. He woke up before I did. I woke when the other fellow did; and we woke up and I put on my stuff, and he did too, and it was about train time, and he taken the bills and put in his pocket, and I taken the silver, and we walked right over to the depot, and the train just came in, and we had our sacks and little things. We had it over to a little restaurant northwest of the Frisco depot. We got the stuff and came back and got our tickets to Frederick. I paid for mine and he paid for his, and sat down. The train was standing there a few minutes, and he got up and walked around and I got up and he went back and I went back in too. We sat down. The train stood a few minutes and when it left, I believe it was a little this side of Davidson, he got up and went to the closet and he came back and sat down, and he said this is pretty rough riding. I said, 'Isn't this easy riding?' When we got here, we went down here to the restaurant to eat. I paid for it, and come up and went down the street to Cooks, I believe, and walked. He walked in the closet and he said he got to go there, and just a little after sunup he said the post office is open then, and he went on and he said, 'By George, I lost.' He says, 'The only thing I can do is to go over and have a phone to the conductor or telegram.' I said, 'No use to do that.' And he said, 'Yes, that's right; if somebody found it, he would have taken it.' So he says, 'I might have lost it in the closet of Mr. Cooks,' and he went back and he went in there and looked around and couldn't see it, and he walked back out. Mr. McConnell, we cashed a check at Mr.-- at Vernon. I knew him, and when we came to town it was too late, and we walked in and I knew him and I been there, and Mr. McConnell gave me a check for $38 and I walked to Mr. -- store, and hands him the check and he read it, $38, and he paid it, and I told him I was coming to Frederick, and he said he had a store there at Frederick, I believe he said he had one, and he give us a recommendation and got a piece of paper, and Mr. Bivens taken it, and put it in the purse where he had his money and where he put mine, and when we got here he taken it and give it to Mr. McConnell, and Mr. McConnell told us he would find us a job, and he phoned around, and Craig--he lived about a mile from town I believe--he said Mr. Craig would be in at dinner with a load of corn and we stood around there a while, and
I said 'Let's go out and pick cotton,' and he said, 'Let's wait until night and go in the wagon,' and he said, 'What's the use of walking?' I said I can pick some cotton before night. And he says, 'We might go out and the cotton might not be worth a damn.' He said, 'If you want to go, we will go.' We started out and got out, and Mr. Mongold came along with a wagon and asked where were we going, and we told him, and we rode with him, and he said he had some cotton to pick, and he said he was going to haul the wagon to the field as soon as he goes home, and talked about how much he was giving--six bits. I said I will go, and we went out and picked before dinner. I picked 23 pounds and Mr. Bivens picked 24 pounds. I couldn't hardly eat anything, I felt so sorry my money was gone. I said to Mr. Mongold, I said I didn't believe I needed any water. I thought that is the way I can get a chance to get away. We went back to the field, and he said, 'You believe I got that money,' and I said, 'For all I know you might.' And he said, And finally, I had about six or seven pounds in my sack and I said I got to get some water. I felt sick, and I taken my sack and emptied it, and put in my little stuff and walked to town, and I told Mr. Mongold I was coming to town, and what few pounds I picked he could have for that dinner. I walked to town and came around to that gin down yonder below the railroad and met a fellow there. He was talking, and I told him all about it-- (Objected to by counsel for the defendant as to what he told him.) A. I just told him-- (Objected to by counsel for the defendant.) By the Court: Don't tell what he said. Go ahead and tell what you did. A. I seen Mr. Waggoner and told him all about it, and Mr. Waggoner said-- (Objected to.) Q. Tell what he did. A. Well, Mr. Waggoner went in and called another fellow. This other fellow is around here somewhere. Said for him to come along. (Objected to.) Q. Mr. Veal? A. Yes; and we all three got in a buggy and drove out there, and we got over three-fourths of the way and met Mr. Mongold coming in with a load of corn, and we passed Mr. Mongold, and he said, 'Are you coming back out?' and I said, 'Yes,' and he said that fellow is gone. (Objected to.) Q. Go ahead...
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