Byers v. State
| Decision Date | 22 March 1944 |
| Docket Number | A-10257. |
| Citation | 147 P.2d 185,78 Okla.Crim. 267 |
| Parties | BYERS v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. The general rule is that when a defendant is put upon trial for one offense, he should be convicted, if at all, by evidence which shows that he is guilty of that offense alone; and evidence which in any manner shows, or tends to show, that he has committed another crime, wholly independent, even though it be a crime of the same sort, is irrelevant and inadmissible.
2. As an exception to the general rule, evidence of other offenses recently committed, similar to that charged, is admissible when it tends to establish a common scheme or plan, embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, or when it shows or tends to show guilty knowledge or intent in the commission of the offense.
3. When the state offers to prove other alleged offenses for the purpose of showing a common scheme, plan or un-unlawful intent, the proof must clearly come within the exception to the general rule; and where the offenses are wholly independent and no visible connection between them, even though of the same kind, an objection by the defendant to the proof should be sustained. If the trial court is doubtful whether the alleged other offenses are admissible, he should resolve the doubt in favor of the defendant and refuse the admission of such evidence.
4. In prosecution for obtaining property by false pretenses by use of a credit card purportedly issued by M. Oil Company evidence that defendant had made approximately eighty other purchases at about the same time as the purchase involved in the instant case by use of the same credit card was admissible to show systematic scheme or plan.
5. Trial court erred in admitting in evidence, over objection of defendant, a typed list of the alleged purchases made by defendant, which list carried the caption "Purchases Made by Jimmie Byers," as statement was a conclusion of person who prepared the list.
6. Where credit invoices of purchases signed by defendant are admitted in evidence, the admission in evidence of a list of the alleged purchases made by defendant with the caption "Purchases Made by Jimmie Byers" was harmless error where said list corresponds with the credit invoices legally admitted in evidence.
7. Instruction advising jury that court had permitted defendant to introduce evidence showing he had plead guilty in another county to similar offense, and had served term in penitentiary upon being sentenced therefor, and that defendant had given bill of sale to his automobile to oil company, might or might not be considered by jury in mitigation of punishment in event they find defendant guilty as charged in information; held, not so fundamentally erroneous as to require a reversal in the absence of an exception taken to said instruction.
Appeal from District Court, Pottawatomie County; Kenneth Jarrett Judge.
Jimmie Byers was convicted of obtaining property under false pretenses, and he appeals.
Affirmed.
Wimbish & Wimbish, of Ada, for plaintiff in error.
Randell S. Cobb, Atty. Gen., and J. Walker Field, Asst. Atty. Gen for defendant in error.
This is an appeal from verdict of jury and sentence of the District Court of Pottawatomie County wherein the defendant, Jimmie Byers, was convicted and sentenced to serve one year in the state penitentiary for the crime of obtaining property under false pretenses.
The defendant, on or about April 28, 1940, went to the Rooker Brothers Service Station in McLoud, Oklahoma, and purchased two automobile tires and tubes on the strength of a credit card of the Magnolia Petroleum Company, purportedly issued to the Bender Tool Company of Denver City, Texas. The defendant represented himself as being one J. P. Myers agent of the Bender Tool Company, and signed a credit ticket for the purchase of the automobile tires and tubes which amounted to the sum of $24.80.
A representative of the Magnolia Petroleum Company testified to the plan of the company concerning the issuance of credit cards to various customers who were on their approved credit lists. These cards would enable the customer to make purchases at various Magnolia service stations over the country and sign a credit memorandum or invoice in triplicate for their purchase. One of said invoices would in turn be sent to the home office of the oil company. The oil company then would bill the customer the first of each month for the purchases that had been made. Each of the credit cards bore an identifying number.
The proof of the state showed that the Bender Tool Company, which was the company in whose name the card used by the defendant was purportedly issued, was a fictitious company and the name J. P. Myers used by the defendant was a fictitious name. The defendant was arrested in Memphis, Tennessee, when he had gone to a lithographing shop and sought to have credit cards similar to the one he had been using made for the purpose of continuing to perpetrate the fraud upon the Magnolia Petroleum Company. After the arrest of the defendant he made several statements to officials of the Magnolia Petroleum Company in which he said that he had obtained the card from a friend while he was in a cafe in Seagraves, Texas. That the friend had several credit cards and spread them out on a table and he selected the Magnolia card. That he used the Magnolia card in making various purchases over several states during the period from about April 20th to May 6th.
The credit manager for the Magnolia Petroleum Company identified eighty-one sales tickets which evidenced purchases made under the purported authority of the credit card in the possession of the defendant. In each of the purchases the sales ticket was made to the Bender Tool Company of Denver, Texas, and was signed by J. P. Myers, which was the same name used by the defendant in making the purchase at McLoud. Most of these purchases were for new tires and tubes. Under the admission of the defendant to the officers, in order to secure money, he would later resell these tires and tubes at a discount. The total purchases during the period when the defendant was using the fictitious credit card was about the sum of $900.
It is first contended that the court erred in admitting in evidence one of the credit cards issued by the Magnolia Petroleum Company which was admitted solely for the purpose of showing the general type of card used by the defendant. This exhibit did not purport to be the one used by the defendant in making the various purchases charged against him. At the time this exhibit was introduced in evidence the record discloses the following:
Counsel have not pointed out in their brief where the admission of this evidence prejudiced the defendant. As a part of the state's case the prosecution sought to show the system and method of sale of goods by the use of credit cards. In this connection the display of the type of credit card used by defendant in making the purchases was an aid to the jury so that they might better understand the testimony and explanation of the procedure followed by defendant in procuring the goods charged to him.
It is next contended that the court erred in admitting in...
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