Coleman v. Territory Oklahoma

• Decision Date: 12 February 1897
• Parties: ASA COLEMAN v. THE TERRITORY OF OKLAHOMA.
• Court: Oklahoma Supreme Court

1897 OK 15

47 P. 1079

5 Okla. 201

ASA COLEMAN v. THE TERRITORY OF OKLAHOMA.

Supreme Court of Oklahoma

Decided: February 12, 1897

Error from the District Court of Oklahoma County.

At the February, 1896, term of the district court of Oklahoma county, plaintiff in error, Asa Coleman, was tried and found guilty and sentenced for the crime of forgery. From such judgment he appealed.

Syllabus

¶0 1. CRIMINAL LAW--Statute of Limitation--Inhabitant of, or Usually Resident--Meaning of. The clause in the exception In the statute of limitations, § 4953, Statutes of Oklahoma, 1893, reading, "and no time during which the defendant is not an inhabitant of or usually resident within the territory is part of the limitation," means, that no time during which the defendant did not have a fixed, permanent and established home where his personal presence might reasonably be known, would constitute any part of the period of limitation.

2.CRIMINAL LAW--Statute of Limitation--Inhabitancy and Residence--Proof of--Burden Upon Whom--Degree of. The defense of the statute of limitation is an extrinsic, exculpatory defense in the nature of confession and avoidance. It does not traverse any of the material elements of the crime charged; and where an indictment was not found until more than four years after the commission of the crime, and the territory had established that, immediately after the commission of the crime, the defendant fled, the burden was not upon the territory to establish, by evidence, to the satisfaction of the jury, beyond a reasonable doubt, that the defendant, during the period of the statute of limitation, was not an inhabitant or usually resident within the territory; but the burden was upon the defendant to satisfy the jury, by the preponderance of evidence, that during said time he was an inhabitant and usually resident within the territory. Where, in a criminal case, the defense is extrinsic, not traversing any of the material elements of the defense and the facts upon which such defense is based, are peculiarly within the knowledge of the defendant, he will be held to establish those facts to the satisfaction of the jury, by the preponderance of the evidence, before he is entitled to an acquittal.

Hays & Jenkins, for plaintiff in error.

C. A. Galbraith, Attorney General, for defendant in error.

TARSNEY, J.:

¶1 Plaintiff in error brings this case here and asks a reversal on numerous assignments of error.

¶2 The only questions presented in this court requiring our consideration or attention, are those presented by the action of the court below, in overruling a demurrer to the indictment, and upon the instructions, as to the law of the case, given to the jury.

¶3 At the November, 1895, term of said court, the defendant was indicted under the second paragraph of § 2356, of the Statutes of Oklahoma, which said paragraph reads as follows:

"Second. Any instrument of writing being, or pur- porting to be, the act of another, by which any pecuniary demand or obligation is, or purports to be, created, increased, discharged or diminished, or by which any rights of property whatever, are, or purport to be, transferred, conveyed, discharged, diminished or in any manner affected, the punishment of which is not hereinbefore prescribed, by which false making, altering, forging or counterfeiting, any person may be affected, bound or in any way injured in his person or property, is guilty of a forgery in the second degree."

¶4 The indictment, in due and proper form charged, substantially, that on the fifteenth day of April, 1891, one George A. Strauss, had pending in the United States land office, a contest against the homestead entry of the defendant on certain lands in Oklahoma county, seeking to procure a cancellation of such homestead entry, and to obtain for himself, under the laws of the United States, the preference right to make entry of said land; that the defendant did, on said fifteenth day of April, 1891, cause and procure one John Doe to personate the said Strauss, and falsely make, forge and counterfeit and file in said land office an instrument in writing as follows:

"Before the United States Land office, Oklahoma City, O. T., April 15, 1891.

George A.Strauss vs. Asa Coleman.

Involving the S. W. 1/4 of Sec. 25, Town. 12, R. 3, W.

MOTION TO DISMISS.

Comes now the plaintiff in the above entitled cause, George A. Strauss, and moves the honorable register and receiver to dismiss said cause, and that it appear of record.

(Signed)

GEORGE A. STRAUSS."

Witness, J.

S. LINDSAY.

¶5 The indictment charged the crime to have consisted in falsely making and forging said instrument. And the sufficiency of the indictment, and the correctness of the ruling of the court in overruling the demurrer thereto, must depend upon the determination of the question whether the instrument set out in the indictment was susceptible of being forged or counterfeited, and whether the falsely making and forging of such instrument amounted, in law, to forgery. If this instrument, if genuine, could have the effect to create, increase, discharge or diminish, or in any manner affect the property rights of the person whose name appeared to be signed thereto, and the defendant falsely made and forged such instrument or procured the same to be done, then such act was within the statute we have quoted and the indictment was sufficient.

¶6 The determining point in this question was before this court at the last term; and in Tecumseh State Bank v. Maddox, 4 Okla. 583, 46 P. 563, we there held that an agreement by a contestant to surrender his preferment right and not assert the same, when such preferment right should have been affirmed by the land office, constituted a valid consideration for an assignment of money.

¶7 In Lamb v. Davenport, 18 Wall. 307, 21 L. Ed. 759, it was held that:

"The right of the United States to dispose of her own property is undisputed, and to make rules by which the lands of the government that are sold or given away is acknowledged; but, subject to these well known principles, parties in possession of the soil might make valid contracts, even concerning the title, predicated upon the hypothesis that they might thereafter lawfully acquire the title, except in cases where congress has imposed restrictions upon such contracts."

¶8 In that case the court held that, unless forbidden by some positive law, contracts made by actual settlers upon the public land concerning their possessory rights and concerning the title to be acquired in the future from the United States, are valid as between the parties to the contract, though there be, at the time, no act of congress by which the title may be acquired, and though the government is under no obligations to either of the parties in regard to the title. (See also Pelham v. Service, [Kan. Sup. 36], Pac. Rep. 29; McCabe v. Caner, 58 Mich. 182, 35 N. W. 902; Lapham v. Head, 21 Kan. 332; Bell v. Parks, 18 Kan. 152; Fessler v. Haas, 19 Kan. 216 Olson v. Orton, [Minn.], 8 N.W. 878; Thompson v. Hanson, [Minn.], 11 N.W. 86; Kennedy v. Shaw, 43 Mich. 359, 5 N.W. 396; Sanford v. Huxford, 32 Mich. 313).

¶9 We think that one who contests the right of entry made upon public lands, by another, and who is himself qualified to make entry thereon, and who, if successful in his contest, will have a preference right over all others to make entry of said land, has a property right therein; and that any instrument required to evidence a relin- quishment of such right, is of such character, that it may be the subject of forgery. The above authorities clearly holding that the rights of the contestant in such case are such that an agreement to relinquish the same may constitute a good and valid consideration for a contract, we must hold that, upon this point, the instrument alleged to have been forged was one which, if genuine, could have affected the property rights of said Strauss, and that the indictment which properly charged the making, forging and counterfeiting of such instrument, did properly charge a public offense, and that the court below committed no error in overruling the demurrer to the indictment in this cause.

¶10 The other contention of plaintiff in error, which we deem it important to consider, is, that the court erred in its instructions given to the jury.

¶11 The indictment was found and returned into court on the eleventh day of November, 1895, and charged the offense to have been committed on the fifteenth day of April, 1891, the indictment being found and returned four years, six months and twenty-six days after the date at which it alleged that the offense was committed. It, however, contained, in apt words, an averment that on the day of the commission of said offense, the defendant fled from the Territory of Oklahoma, and has not, since that time, been an inhabitant of or usually resident within said territory, for a period of three years. Section 4952, p. 941, Statutes of Oklahoma, 1893, provides that in all cases other than murder, an indictment for a public offense must be found within three years after its commission; and § 4953, of said statutes, provides that:

"If, when the crime is committed, the defendant be out of the territory, the indictment may be found within the term herein limited after his coming within the territory, and no time during which the defendant is not an inhabitant of or usually resident within the territory, is part of the limitation."

¶12 The evident intention of this statute was that as to persons who, being without the territory, should by means or agencies within the territory, or by aiding and abetting others who were in the territory, commit any crime, the statute of limitation should not run until such person came within the territory. And as to all persons committing offenses, whether being at the time of the commission thereof, within or without the territory, the statute of limitation should not run during the time when such offenders...