Collins v. State
| Decision Date | 09 October 1940 |
| Docket Number | A-9678. |
| Parties | COLLINS v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. Section 2137, O.S.1931, 21 Okl.St.Ann. § 1590, which provides: "Every person who being a member or officer or in the employment of any corporation, association or partnership, falsifies, alters, erases, obliterates or destroys any account or books of accounts or records belonging to such corporation, association or partnership, or appertaining to their business or makes any false entries in such account or book or keeps any false account in such business with intent to defraud his employers, or to conceal any embezzlement of their money, or property, or any defalcation or other misconduct, committed by any person in the management of their business, is guilty of forgery in the second degree," recognizes that the crime of forgery and the crime of embezzlement may arise from the same transaction and prosecutions instituted for each offense.
2. A putting in jeopardy for one offense is no bar to a prosecution for a separate and distinct act merely because the two offenses are so closely connected that it is impossible to separate the evidence relating to them on the trial for the one of them first had.
3. Under the constitutional guaranty not to be twice put in jeopardy, the decisive test on a plea of former jeopardy is whether the same testimony will support both charges. Otherwise stated, the offenses are the same whenever evidence adequate to one information will equally sustain the other.
4. Where a plea of former jeopardy is made which involves no question of fact, but presents a question of law only, it is not necessary to submit such plea to the jury, but the court may act upon it as a question of law; and the court may instruct the jury that the plea of jeopardy is not sustained and will not be submitted to them for their consideration.
5. It is error for the court to refuse a request of the defendant to be allowed to be tried in his civilian clothes rather than in the jail clothes with which he was garbed.
6. Such error will not be reversible error where the defendant did not take the stand, offered no defense to the State's charge, and the proof showed many thousands of dollars had been taken by the defendant and no recovery had; the failure of the court to recognize the defendant's right to be dressed in civilian clothes not being prejudicial to him in this instance.
Appeal from District Court, Oklahoma County; Ben Arnold, Judge.
L. A Collins was convicted of forgery in the second degree, and he appeals.
Affirmed.
D. D Archer and Fred M. Black, both of Oklahoma City, for plaintiff in error.
Mac Q Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Lewis R. Morris, Co. Atty., and Walter Marlin, Asst. Co. Atty., both of Oklahoma City, for defendant in error.
The defendant L. A. Collins was charged in the District Court of Oklahoma County with the offense of forgery in the second degree; was tried, convicted, and sentenced to serve a term of five years in the State Penitentiary, and has appealed to this court.
The defendant contends:
The information filed against the defendant is as follows:
"In the name and by the authority of the State of Oklahoma, comes now Lewis R. Morris, the duly qualified and acting County Attorney in and for Oklahoma County, State of Oklahoma, and on his official oath gives the District Court in and for said Oklahoma County and the State of Oklahoma, to know and be informed that heretofore, to-wit: on the 30th day of October, A. D. 1936, in Oklahoma County, State of Oklahoma, L. A. Collins and Bess M. Hedge, whose more full and correct names are to your informant unknown, then and there being, did then and there willfully, unlawfully and feloniously commit the crime of forgery in the second degree in the manner and form as follows, to-wit: That in the county and state aforesaid and on the day and year aforesaid, the said L. A. Collins and B. M. Hedge, with the intent then and there to increase the credit of the Oklahoma Postal Employees Association in its account with The First National Bank & Trust Company of Oklahoma City, Oklahoma, the depository for the funds of said Oklahoma City Postal Employees Association, did cause said The First National Bank & Trust Company of Oklahoma City, Oklahoma, to credit on its books to the account of Oklahoma City Postal Employees Association the amount of one certain false, forged and spurious check in words and figures as follows, to-wit: 'New York, N.Y. October 30, 1936 No. ___ The First National Bank Pay to the order of L. A. Collins......$13,776.00 Thirteen Thousand Seven Hundred Seventy-six Dollars......Dollars (Signed) B. M. Hedge', the said defendants, L. A. Collins and B. M. Hedge well knowing said check to be false, forged and spurious, and that the same was made, executed and delivered and credit received therefor on the account of the Oklahoma City Postal Employees Association with said The First National Bank & Trust Company of Oklahoma City, Oklahoma, for the false and fraudulent purpose of misleading the auditor then and there engaged in auditing the books and accounts of said Oklahoma City Postal Employees Association as to the true financial condition of said Oklahoma City Postal Employees Association of which association the said L. A. Collins was then and there secretary-treasurer and whose books and accounts were then known by him and by the said B. M. Hedge to be short by reason of embezzlement of funds in the custody and control of said defendant, L. A. Collins in his said official capacity, said defendants, L. A. Collins and B. M. Hedge acting conjointly and together for the purpose of concealing the condition of said books from the auditor then and there engaged in auditing such books and for the purpose of concealing from such auditor and from the Oklahoma City Postal Employees Association the fact of such embezzlement and defalcation of the funds of such association, all with the felonious intent aforesaid, contrary to the form of the statutes in such cases made and provided against the peace and dignity of the State of Oklahoma."
The proof in connection with the defendant's plea of former jeopardy showed that on November 12, 1937, the defendant was charged with the embezzlement of $40,000 from the Oklahoma City Postal Employees Association, a corporation, during the period of time from February 1, 1936, to November 6, 1937. To this charge of embezzlement the defendant on December 9, 1937, entered his plea of guilty and was sentenced to serve a term of five years in the Penitentiary at McAlester. He was incarcerated in the State Penitentiary, serving this sentence when the information in the case at bar was filed against him, March 5, 1938.
The defendant introduced in connection with his plea of jeopardy a certified copy of the information, the minutes of the court in connection with his arraignment, and the judgment and sentence pronounced against him in the embezzlement case.
It appears from the facts that the postal employees of Oklahoma City formed a corporation under the name of Oklahoma City Postal Employees Association on July 21, 1933. After the formation of this corporation, the defendant was selected as the treasurer of the association, and as such treasurer was given the control over the funds which were collected for the association as dues from the postal employees who belonged to the association. There were about two hundred members of this association in Oklahoma City. The fiscal year of the corporation closed on October 31st of each year. On October 31, 1936, an auditing committee from the members of the association was selected to audit the books of the defendant and to report the financial condition of the association as of the close of the fiscal year.
On October 30, 1936, the defendant, in order to conceal a shortage in his account, deposited a check in the sum of $13,776 to the credit of the association in their depository bank in Oklahoma City. This check is as follows:
After this check was deposited, the bank credited the account of the Oklahoma City Postal Employees Association with the amount of the check and sent the check through to their correspondent bank in New York for collection. B. M. Hedge had no account in The First National Bank of New York, and the check was accordingly returned to the Oklahoma City bank on November 7, 1936. During the interim between the date of the deposit of the check on October 30, 1936, and the return of the check on November 7, 1936, the auditing committee made an audit of the defendant's books as treasurer of the association and found that his books balanced and the records were correct.
At the close of the fiscal year in October, 1937, another auditing committee was selected to audit the defendant's books. It was during this audit that the embezzlement of the defendant was learned, and the defendant fled from the city for several days at that time.
The defendant did not take the stand, and offered no defense to the proof introduced by the State, but rested his...
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