Bruning v. State

• Decision Date: 08 October 1937
• Docket Number: A-9243.
• Citation: 72 P.2d 393,63 Okla.Crim. 1
• Parties: BRUNING v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

72 P.2d 393

63 Okla.Crim. 1

BRUNING v. STATE.

No. A-9243.

Court of Criminal Appeals of Oklahoma

October 8, 1937

Syllabus by the Court.

1. The introductory paragraph of an information is ordinarily equivalent to a mere descriptive label, and a wrong name given to the crime in that part of an information is an irregularity only, and not fatal. The charging part of the information must be looked to, to determine the character of the offense.

2. When a conspiracy is entered into to cheat and defraud any person of any property, all persons who engage therein are responsible for all that is done in pursuance thereof by any of their coconspirators until the object for which the conspiracy is entered into is fully accomplished.

3. In a prosecution for forgery in the second degree, the instructions of the court carefully considered and held to correctly state the law.

4. In a prosecution for forgery in the second degree, evidence reviewed and held sufficient to sustain the conviction, and that no material error was committed on the trial.

Appeal from District Court, Oklahoma County; George H. Giddings Jr., Judge.

H. R Bruning was convicted of second degree forgery, and he appeals.

Affirmed.

Owen F Renegar, of Oklahoma City, for plaintiff in error.

Mac Q Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State.

DOYLE Judge.

Upon an information against H. R. Bruning, Rosa E. Bell, Albert Zirm, and others, charging them with the crime of forgery, the defendant H. R. Bruning asked for and was granted a severance. Upon his trial the jury returned their verdict finding him guilty of forgery in the second degree, leaving the punishment to the court. The court overruled the motion for a new trial on June 26, 1936, and rendered judgment and sentenced defendant to serve a term of 3 years in the state penitentiary. From the judgment of conviction he appeals.

The information charged that in Oklahoma County on the 25th day of April, 1936, the said defendants, then and there being, while acting conjointly and together, did then and there knowingly, fraudulently, unlawfully, and feloniously, with intent to defraud, utter and publish as true a certain instrument in writing, to wit, one mineral deed. The alleged forged instrument or deed is set forth in extenso, and the acknowledgment thereon. The instrument purported to be a mineral deed, executed by John B. Straw and Mable Meredith Straw, husband and wife, to lots 11, 12, 13, and 14, in block 1, Hare's Lincoln Boulevard addition to Oklahoma City, consideration named, $1 cash and other good and valuable considerations. It bears the date of the 25th day of April, 1936, and acknowledged before Albert Zirm, a notary public in and for Oklahoma County, and purports to grant, bargain, sell, and convey, transfer, and deliver unto D. B. Ellis, of Oklahoma City, an undivided whole interest in and to all the oil, gas, and other minerals in and under that may be produced from the aforesaid land; that at the time said defendants so uttered the false instrument as genuine said defendants well knew that said names "John B. Straw and Mable Meredith Straw" were forgeries.

The record shows that when the case was called for trial the defendant objected to going to trial and moved the court to strike the case from the assignment on the ground that his demurrer to the information had not been heard or passed upon.

It appears that the defendant's plea of not guilty had been entered on June 6th, that no permission of the court to withdraw said plea had been asked or secured, but counsel for the defendant, without leave of the court, had on June 17th, the day before the case was called for trial, filed a general demurrer to the information.

Thereupon the court announced, "if you want to present your demurrer I will hear it now." After hearing the argument, the court overruled said demurrer and the motion to strike.

The first assignment is: "Error of the court in requiring this defendant to be tried on an information charging first degree forgery, on evidence presented making out a case of second degree forgery, and thereby sustaining a conviction of second degree forgery."

The statute upon which the conviction is based (Penal Code. [St.1931] § 2139 [21 Okl.St.Ann. § 1592]) defines the offense of forgery in the second degree as follows: "Every person who, with intent to defraud, utters or publishes as true any forged, altered or counterfeited instrument or any counterfeit gold or silver coin, the forging, altering or counterfeiting of which is hereinbefore declared to be punishable, knowing such instrument or coin to be forged, altered or counterfeited, is guilty of forgery in the second degree."

Counsel in his brief calls the court's attention to the information designating the crime charged as forgery in the first degree, also calls the attention of the court to the instructions given by the court submitting only the issue of second degree forgery, and contends that this action of the court constituted prejudicial error.

It appears that the name given to the crime charged in the information is forgery in the first degree, but by the charging part the defendants are charged with forgery in the second degree.

A mistake in this particular is an irregularity and is not fatal. The introductory paragraph of an information is ordinarily equivalent to a mere descriptive label. Vickers v. U.S., 1 Okl.Cr. 452, 459, 98 P. 467.

A wrong name given to a crime in the preliminary part of an information is an irregularity only, and is not fatal. The charging part of the information must be looked to, to determine the character of the offense. Kelly v. State, 12 Okl.Cr. 208, 153 P. 1094.

Upon the record before us this contention is wholly without merit. It appears from the record that there were no objections made or exceptions reserved to any of the instructions given by the court, and it appears that the instruction on second degree forgery was given at the express request of the defendant.

It is further contended that the evidence is not sufficient to support the verdict, and that the court erred in refusing to direct a verdict of acquittal.

On the part of the State the evidence established the following facts:

That on the date alleged John B. Straw and Mabel Meredith Straw, husband and wife, were joint owners of the lots described in the information; that they had executed an oil and gas mining lease to Anderson-Prichard Oil Company, filed for record with the county clerk on March 17, 1936.

John B. Straw testified that he did not sign or acknowledge or deliver the mineral deed set forth in the information; that a broker, S. J. Sharber, told him that a mineral deed to said lots had been offered for sale at his office and wanted to know if such deed was genuine, if so he was going to buy it; that this was the first knowledge he had of the mineral deed; that he went to the county clerk's office the next day and found said deed had been filed for record; that at that time he did not know the defendant H.

R. Bruning, or his codefendant, Albert Zirm.

The original instrument or deed was offered in evidence.

Mabel Meredith Straw testified that she did not sign this deed and that her name was signed without her authority, knowledge, or consent; that she spells and signs her first name "M-a-b-el," the signature on the deed is spelled "M-a-b-l-e."

Kyle Johnson testified that he had lived in Oklahoma City about 10 years, was unmarried, and made his home with his brother-in-law, Ed. Blaylock. That he had known the defendant Bruning for about a year before the time of the transaction involved. That around the 10th of April he met Bruning in a pool hall on South Hudson. Bruning said he wanted him to run some errands for him, and they walked from there down to the front of the Kress Store. There Bruning pointed to a woman in the store, said her name was Miss Bell, gave him an envelope and told him to give it to her. That he went in and gave her the envelope. She said she would be back there at 1:30. That he went out and told Bruning what she said. That at 1:30 he was back at the Kress Store, and Miss Bell gave him the envelope which he delivered to Bruning, who was waiting around the corner on Harvey street. That a similar transaction occurred the next day. Bruning waited on Harvey street while he delivered an envelope to Miss Bell, and again a little after 1 o'clock he received such envelope from her and delivered it to Bruning. That Bruning told him, "There was some heir stuff, and there was some people dealing he did not want to see him." Then they started out to Capitol Hill. Bruning first drove to the post office, stopping at Third and Harvey. Bruning said he wanted to get these papers fixed up and walked over to the post office. Coming back, he handed him the papers to give to a man he pointed out on the steps at the west entrance of the post office, and said the man's name was Albert Zirm. That he walked over to the man and said Mr. Bruning told him to have him notarize these papers. Zirm took the papers to a desk in the post office and, after signing the paper and affixing his seal to it, gave it back to him, and he went back to the car and gave the papers to Bruning. They then drove out to Forty-Fourth and Shields, Capitol Hill, Miss Bell was sitting in a car parked in front of the Yarbor Pharmacy. Bruning went over and talked to her 10 or 15 minutes; then came back to his car, opened the door on the dash pocket and took out some papers, handed them to him and told him to take them over to Miss Bell. That he recognized the deed as the one Albert Zirm acknowledged in the post office a little while before that. That when he gave her the papers she said Mr....