Crain v. State

• Decision Date: 03 July 1940
• Docket Number: A-9632.
• Citation: 104 P.2d 450,70 Okla.Crim. 45
• Parties: CRAIN v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

104 P.2d 450

70 Okla.Crim. 45

CRAIN v. STATE.

No. A-9632.

Court of Criminal Appeals of Oklahoma

July 3, 1940

Syllabus by the Court.

1. A prosecution for larceny of domestic animals must be commenced within three years after its commission.

2. A prosecution is commenced by the filing of a preliminary complaint before the county judge, acting as a magistrate, in good faith and a warrant is issued thereon.

3. Under Oklahoma Statutes, 1931, Section 2726; Oklahoma Statutes Annotated. Title 22, Section 153, the statute of limitation does not run during the time in "which the defendant is not an inhabitant of or usually resident within the state".

4. Where an original complaint was filed under the name of Richard Doe within the time specified by the statute of limitations, and the evidence revealed that defendant was the party intended, the filing of an amended complaint substituting the name of defendant instead of "Richard Doe", after the statute of limitations had run, will be considered from the filing of the original complaint, and the action is not barred by the statute of limitations.

5. It is not essential that corroborating evidence shall cover every material point testified to by the accomplice, or be sufficient alone to warrant a verdict of guilty. If the accomplice is corroborated as to some material fact or facts by independent evidence tending to connect the defendant with the commission of the crime, the jury may from that infer that he speaks the truth as to all. Such corroborating evidence, however, must show more than the mere commission of the offense or the circumstances thereof.

6. A motion for continuance for the reason that the prosecuting witness was a member of the jury panel at the time of the defendant's trial was properly denied, where it was not shown that defendant had been in any way prejudiced, or that any member of the jury were biased or prejudiced against the defendant.

7. A requested instruction that it was necessary for an accomplice "to be corroborated by other testimony on every material point in the case" was properly denied.

8. Where the state does not rely wholly upon circumstantial evidence for a conviction, it is not error for the court to fail to instruct thereon.

9. Record examined, and in the furtherance of justice, the judgment and sentence is modified from ten years in the penitentiary to seven years in the penitentiary.

Appeal from District Court, Ottawa County; Ad V. Coppedge, Judge.

Claud Crain was convicted of the larceny of domestic animals, and he appeals.

Judgment and sentence modified from ten years in the penitentiary to seven years in the penitentiary, and, as so modified affirmed.

J. J Smith and H. P. Walker, both of Miami, for plaintiff in error.

Mac Q Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Wm. E. Poteet, Co. Atty., of Miami, for the State.

BAREFOOT Judge.

The defendant, Claud Crain, was charged in the District Court of Ottawa County with the crime of larceny of domestic animals; was tried, convicted, and his punishment assessed by the jury at 10 years in the penitentiary. From this judgment and sentence he has appealed.

For reversal of this case defendant contends:

First: The matter of limitations.

Second: The lack of corroborative evidence.

Third: The manifest bias of the jury.

Fourth: Instructions refused.

The first question requires a statement of the history of this case. The defendant, Claud Crain, Fred Rosenthal, Ora Cox, and Paul McHorney, were all residents of the State of Missouri. The evidence revealed that on the night of September 12th, 1934, they came from Missouri to Ottawa County, Oklahoma, and entered the pasture of Henry Byard, and stole therefrom four mules, the personal property of the said Henry Byard. After loading the mules into a truck belonging to Fred Rosenthal they started to St. Louis, Missouri, where the mules were to be disposed of. After crossing the Oklahoma line the truck turned over, but a wrecker was secured, and the next night they proceeded on their way. Fred Rosenthal, Ora Cox and Paul McHorney, were apprehended by the officers of the Highway Patrol, near Springfield, Missouri, who had been notified of the theft. They were returned to Ottawa County, Oklahoma, by the Sheriff of that county, who went to Springfield, Missouri, for them. The mules were recovered.

On the 13th day of September, 1934, a complaint was filed in the office of John H. Venable, County Judge of Ottawa County, sitting as an examining magistrate, against "Fred Rosenthal l, John Doe, Richard Doe, and Richard Roe", whose true names were unknown, and a warrant was issued thereon and placed in the hands of Dee T. Watters, Sheriff of Ottawa County. On September 24th, 1934, as shown by the transcript of the examining magistrate, "the Sheriff of Ottawa County, State of Oklahoma, brings Fred Rosenthal l, John Doe and Richard Roe *** and thereupon Fred Rosenthal l informed the court that his true name is Fred Rosenthal, and John Doe says his true name is Paul McHorney, and Richard Roe says his true name is Ora Cox". The transcript then recites, "and Richard Doe says his true name is Claud Crain". However, it is afterwards admitted that this last statement is incorrect, and that the defendant, Claud Crain, had at that time not been apprehended, and was not present, and never appeared in the courts of Ottawa County until the 29th day of August, 1938. The transcript further recites: "It is therefore ordered that the county attorney amend the complaint to show the correct and true names of the defendants, and it is further ordered that the prosecution proceed under the true names of the defendants."

The record then reveals that the defendants, Fred Rosenthal, Paul McHorney, and Ora Cox, waived preliminary examination and were bound over to the District Court of Ottawa County. Each of these three defendants were afterwards sentenced to the penitentiary and served their sentences upon the above charges.

During the month of August, 1938, the defendant, Claud Crain, was apprehended and arrested in the State of California. He was returned to the State of Oklahoma by the Sheriff of Ottawa County, Walter L. Young. On the 29th day of August, 1938, the county attorney of Ottawa County filed an amended complaint before John H. Venable, County Judge, of Ottawa County, sitting as an examining magistrate, charging the defendant, Claud Crain, with the larceny of the four mules as above described, on the 12th day of September, 1934. A warrant of arrest was issued on this amended complaint and placed in the hands of the Sheriff of Ottawa County. The transcript of the examining magistrate reveals that defendant was brought before him after the original complaint was amended as aforesaid, and that after having a preliminary examination on the 8th day of September, 1938, defendant was held for his appearance in the District Court, and afterwards an information was filed in the District Court, and defendant was tried and convicted, as heretofore stated. It may be here noted that the record revealed that Fred Rosenthal, at the time of his arraignment before the County Judge in September, 1934, informed him of the true name of the defendant, Claud Crain, and that his true name did not appear in the records of this case until the amended complaint was filed on the 29th day of August, 1938, as aforesaid.

Under the above facts it is contended by defendant that he was not charged within three years, and that his prosecution is therefore barred by the statute of limitations. It is provided by Oklahoma Statutes, 1931, Sections 2724, 2725, and 2726; Oklahoma Statutes Annotated, Title 22, Sections 151, 152, and 153, as follows:

"There is no limitation of time within which a prosecution for murder, the embezzlement of public moneys, and the falsification of public records must be commenced. Prosecution for murder may be commenced at any time after the death of the person killed, and for the embezzlement of public money or the falsification of public records, at any time after the discovery of the crime."

"In all other cases a prosecution for a public offense must be commenced within three years after its commission."

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

It is contended by defendant that the last section of the statute only applies to a person who is out of the state at the time of the commission of the offense, and does not apply to one who was within the state at the time of the commission thereof. This contention is based upon the case of State v. Clemens, 40 Mont. 567, 107 P. 896. The Supreme Court of Montana had before it a statute almost identical with the Oklahoma statute above quoted. This case was a misdemeanor, and we have carefully read it, and can not approve of the reasoning of the court, and the construction placed upon the statute therein. It is in direct conflict with the construction placed upon the Oklahoma statute by the Territorial Supreme Court in the case of Coleman v. Territory, 5 Okl. 201, 47 P. 1079, 1080. In this case Judge Tarsney analyzed this statute, and held that the first part of the statute referred to persons, who, "being without the territory", and that the second part of the statute referred to persons who were within the state at the date of the commission of the offense, but who were not inhabitants of, or usually residents within the state, during the time of the running of the statute of limitations. The court said:

"The evident intention of this

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