Burns v. State

• Decision Date: 10 September 1941
• Docket Number: A-9859.
• Parties: BURNS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

117 P.2d 155

72 Okla.Crim. 432

BURNS v. STATE.

No. A-9859.

Court of Criminal Appeals of Oklahoma

September 10, 1941

Syllabus by the Court.

1. The crime of conspiracy does not merge in the felonies described as overt acts in the indictment, where the conspiracy is a crime and not an essential part of the felonies to accomplish which the conspiracy was formed.

2. A conspiracy to commit a felony constitutes an independent crime, complete in itself and distinct from the felony contemplated.

3. The fact that an indictment for conspiracy to defraud the state under § 1963, O.S.1931, 21 Okl.St.Ann. § 424, alleges overt acts constituting a felony or that the evidence discloses that the conspiracy was executed by the commission of a felony does not render the indictment demurrable or prevent a conviction for conspiracy.

4. One accomplice cannot corroborate another so as to authorize a conviction on the testimony of two accomplices alone.

5. A conspiracy must first be proved before a declaration of one not on trial is admissible against the defendant; but if there is competent evidence, however slight, of the conspiracy, the acts and declarations of a coconspirator made during the consummation of the conspiracy may be admitted in evidence against the defendant.

6. The trial court did not err in instructing the jury that "If two or more persons conspire to commit an offense the act of any one of the parties to the conspiracy, done in furtherance of the common design and to effect the object thereof, is the act of all, although not present when said act was done. In other words, every person who enters into a common design is in law held to be a party to every act which may be done by any of the others in furtherance of the common design. And in this connection you are instructed that when a conspiracy is shown to exist, the least degree of concert or collusion between the parties to an illegal transaction makes the act of one the act of all. After the conspiracy has been formed, then all acts, statements, and declarations by one of the conspirators, having reference to the common design or purpose of the conspirators is admissible as against each and every one of the parties to the conspiracy, and in contemplation of law is the act of all."

7. Where a motion for a new trial upon the grounds of newly discovered evidence is filed several weeks after sentence has been pronounced upon the defendant, and said motion does not show due diligence to ascertain the facts concerning which the alleged newly discovered evidence is directed, and when the affidavits attached to said motion are so contradictory to admitted facts it is evident they were falsely made, the court did not err in overruling the motion for a new trial thus presented.

8. In a prosecution for a conspiracy to defraud the state by padding the payroll presented to the State Highway Department with fictitious names, procuring warrants issued to said fictitious persons and cashing the same; record examined instructions approved, and evidence held sufficient to sustain conviction.

Appeal from District Court, Kiowa County; John B. Wilson, Judge.

DeRoy H. Burns was convicted of conspiracy to defraud the State, and he appeals.

Judgment affirmed.

R. Place Montgomery and Hughes & Hughes, all of Hobart, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

JONES Judge.

DeRoy Burns, Bryan B. Burns, and Charles Merchant were charged by an indictment presented and filed by a grand jury of Kiowa County with the crime of conspiracy to defraud the state; a severance was granted; the defendant, DeRoy Burns, was tried, convicted and sentenced to serve two years in the State Penitentiary and to pay a $3,500 fine, from which judgment and sentence an appeal has been taken to this court.

It is first contended by the defendant that the court erred in overruling his demurrer to the indictment for the reason that the indictment alleges the consummation of certain overt acts which amount to felonies, and that under the doctrine of merger the crime of conspiracy has been merged in the overt act, and that the defendant, if indictable at all, should be indicted for the felony described under each of the overt acts alleged in the indictment.

It is not necessary to set forth the indictment in this opinion. The same is lengthy and in substance alleges that the three defendants conspired together to defraud the State of Oklahoma of money by representing that certain persons therein named were employed and actually engaged in work upon the public highways of the state in Kiowa County.

Several overt acts were alleged in the indictment, wherein the defendants were alleged to have submitted payroll claims with a person's name signed thereon who did not work and did fraudulently receive from the state certain State Highway warrants in a stated amount, which warrants were endorsed by the defendants, transmitted to the State Auditor, and were paid out of the public funds of the State of Oklahoma. These warrants are fully described and the acts concerning the procurement of the money upon them are detailed at length in the indictment.

The prosecution hereinabove is based upon § 1963, O.S.1931, 21 Okl.St.Ann.§ 424 , which provides: "If two or more persons conspire either to commit any offense against the State of Oklahoma, or to defraud the State of Oklahoma in any manner or for any purpose, and if one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty of not more than ten thousand dollars ($10,000.00) or to imprisonment for not more than two years or to both fine and imprisonment in the discretion of the court or jury."

Under the doctrine of merger where the overt acts pleaded in the indictment amount to completed, separate crimes, it is held that the conspiracy merged in the completed crime. We do not think that the case of Taylor v. State, 38 Okl.Cr. 350, 261 P. 978, cited by counsel, is an authority to sustain this proposition, although the author of the dissenting opinion makes certain statements in his opinion which tend to show that the majority opinion was predicated upon the theory of merger. However, the opinion of the court merely held that the conspiracy statute would not apply to violations of the intoxicating liquor laws because of certain constitutional provisions relating to said laws.

This court has never definitely passed upon the question, and with the exception of the case of Taylor v. State, supra, no authorities are cited by the defendant to sustain his position.

The general rule which has been adopted in the states which have had occasion to discuss this question, and the one which we think is in accordance with sound public policy and which will promote the ends of justice and be conducive to the efficient enforcement of the criminal law, is as stated in the case of People v. Tavormina, 257 N.Y. 84, 177 N.E. 317, 75 A.L.R. 1405, in which it is stated:

"The crime of conspiracy does not merge in the felonies described as overt acts in the indictment, where the conspiracy is a crime and not an essential part of the felonies to accomplish which it was entered into."

"A conspiracy to commit a felony constitutes an independent crime, complete in itself and distinct from the felony contemplated."

"The fact that indictment for conspiracy alleges overt acts constituting a felony, or that the evidence discloses that the conspiracy was executed by the commission of a felony, does not render the indictment demurrable or prevent a conviction for conspiracy."

There is a lengthy annotation at the conclusion of this case, in which authorities are cited from many jurisdictions sustaining this view. 75 A.L.R., supra.

The next assignment of error is that the verdict is not sustained by sufficient evidence, in that there is no proper corroboration of the testimony of the admitted accomplice, Clarence Jackson.

Several witnesses testified on behalf of the state. No evidence was introduced in behalf of the defendant.

To better enable the court to make a proper discussion of this assignment of error, a short statement of the evidence is presented.

Harold Jones testified that he was a music teacher at Indiahoma; that he was employed by DeRoy Burns to play a trumpet in the hillbilly band in the defendant's campaign for State Senator, beginning about May 20, 1938. That Cecil Wilhite, Troy Wilhite, and Coy Daily were the other members of the band; that he had never at any time been employed on the state highways, and did not receive nor endorse State's Exhibit No. 5, being a warrant in the sum of $10.50, dated June 21, 1938, payable to Harold Jones; nor State's Exhibit No. 8, being a warrant in the sum of $64.40, payable to Harold Jones, dated July 21, 1938; nor State's Exhibit No. 2, being a warrant in the sum of $42, dated August 26, 1938, and payable to Harold Jones; nor State's Exhibit No. 15, being a warrant in the sum of $72, dated September 16, 1938, and payable to Harold Jones.

On cross-examination witness stated that he was generally known as "Chink" Jones; that the defendant paid him in cash for his services, and that he did not know that his name was being carried on the Highway payroll.

On redirect examination the witness stated that on two occasions prior to 1938 the defendant, DeRoy Burns, had delivered two State of Oklahoma Highway warrants, which were made payable to Harold Jones, to him.

Clarence Jackson testified that for four years prior to 1939 he was employed as truck foreman with supervision over certain projects of the State Highway Department in Kiowa County that Charles Merchant was...