Bozarth v. State

• Decision Date: 12 October 1934
• Docket Number: A-8733.
• Citation: 41 P.2d 924,56 Okla.Crim. 424
• Parties: BOZARTH v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

41 P.2d 924

56 Okla.Crim. 424

BOZARTH v. STATE.

No. A-8733.

Court of Criminal Appeals of Oklahoma

October 12, 1934

Rehearing Denied Feb. 26, 1935.

Syllabus by the Court.

1. Evidence held sufficient to sustain the judgment.

2. One who, by means of a false claim, sent from one county in the state to another county therein and thereby induced a person in the latter county to deposit property in the United States mail for the person making such claim, may be prosecuted in the latter county for obtaining property by false pretenses since the United States mail is the agent of the person to whom addressed.

3. Where offense is partly committed or acts constituting offense occur in two or more counties, prosecution therefor may be had in either county. Section 2730, Okla. Stat. 1931.

Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.

Mark L Bozarth was convicted of obtaining property under false pretenses, and he appeals.

Affirmed.

Earl Foster and Gomer Smith, both of Oklahoma City, and A. N Boatman, of Okmulgee, for plaintiff in error.

J Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.

EDWARDS Presiding Judge.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of obtaining property under false pretenses, and was sentenced to pay a fine of $500.

A brief statement of facts will make clear defendant's contention. In 1931 he was district judge of the district including Okmulgee county. As such officer he was due from the state a monthly salary of $416.66. He was indebted to a Henryetta bank, and made arrangements with the bank for payments of $50 per month out of his salary as it became due from month to month. On September 12, 1931, he directed the state auditor, by a blanket assignment, to mail salary warrants due each month to the bank at Henryetta. This arrangement was rejected by the state auditor for the reason compliance would require the issuance of two warrants each month. Then defendant made a further arrangement and delivered to the bank 36 claims for monthly salary, with an assignment thereon, with the understanding that the claims for salary and the assignments were to be authenticated by a notary and sent to the auditor each month; that upon receipt of warrants the bank would deposit to defendant's credit, less the amount to be retained by it on defendant's indebtedness.

This arrangement was carried out; the claims and assignments were completed, sent to the auditor each month, warrant issued and returned to the bank, which then deposited the amount to defendant's credit, less payment made on the bank indebtedness. On September 20th, the auditor received claim and assignment for September salary. He issued a warrant thereon, and sent it to the bank. Five days later the auditor received a claim for September salary direct from defendant. This double claim was detected by the auditor, who considered it an error, and warrant was not issued. On October 23d, he again received claim and assignment from the bank, and issued a warrant in full for defendant's October salary. A few days later a claim for October salary was received direct from defendant, the duplication was not detected, and a second warrant for the full amount was issued to defendant. The defendant checked out of the Henryetta bank the exact amount deposited by it to his credit on the first warrant. A double payment of defendant's salary was made for November and December in the same way as in the case of the October salary, and the amounts deposited to defendant's credit by the bank on the warrants issued to it were checked out by defendant.

For January and February, 1932, warrants were issued by the auditor to bank on the assigned claims, but for both said months defendant also made direct claims which were detected by the auditor and warrants not issued.

The prosecution is based on the salary claim sent direct from defendant for December, 1931, in which, among other things, the affidavit states that the state was justly indebted to him "after allowing all just credits, in the sum of $416.66." In March, 1932, after an investigation, defendant paid back to the state the sum of $1,248 as excess salary payments.

On the facts detailed, which are not controverted, only two contentions are made: First, no crime was actually committed; second, if a crime were committed, the venue thereon is not in Oklahoma county.

Under the first it is urged that to constitute the crime charged, it is essential the accused made some affirmative false representation; that a failure to disclose the entire truth is not sufficient, that is, defendant's failure to disclose to the auditor when filing his claim that he had theretofore made an assignment to the bank was a mere silence and not an affirmative false representation; that the claim and representations therein were in fact true; that the salary was due him. Further, that the assignment of an official's unearned salary is void-citing 5 C.J. p. 872, Art. 42c, Note 71; State v. Williamson, 118 Mo. 146, 23 S.W. 1054, 21 L. R. A. 827, 40 Am. St. Rep. 358; McGowan v. City of New Orleans, 118 La. 429, 43 So. 40, 8 L. R. A. (N. S.) 1120, 10 Ann. Cas. 633; King v. Hawkins, 2 Ariz. 358, 16 P. 434; Nelson v. Townsend (Mo. App.) 111 S.W. 894; Bangs v. Dunn, 66 Cal. 72, 4 P. 963; Willis v. Weatherford Compress Co. (Tex. Civ. App.) 66 S.W. 472.

To constitute the crime charged there must have been some affirmative false representation at the time of filing claim for December salary. The claim affirmatively states:

"I, Mark L. Bozarth, the undersigned, upon oath, do depose and say that I have full knowledge of the above and foregoing account; and that the said account is just, correct, due and according to law and that the amount claimed after allowing all just credits, is now due and wholly unpaid, and that I am duly authorized to make this affidavit, so help me God.

[Signed] Mark L. Bozarth, Claimant."

That this statement was false is obvious, for at that time defendant had received an overpayment of salary in the sum of $833.32, which overpayment, to say the least, was a credit against the salary due him from the state.

It is not necessary this court decide whether or not the assignment of an official's unearned salary is invalid. The authorities are divided. 3 C.J. p. 872, art. 42; State v.

Williamson 118 Mo. 146, 23 S.W. 1054, 21 L. R. A. 827, 40 Am. St. Rep. 358; McGowan v. City of New Orleans, 118 La. 429, 43 So. 40, 8 L. R. A. (N. S.) 1120, 10 Ann. Cas. 633; King v. Hawkins, 2 Ariz. 358, 16 P. 434; Nelson v. Townsend (Mo. App.) 111 S.W. 894;...