Davenport v. State
| Decision Date | 03 January 1921 |
| Docket Number | A-3388. |
| Citation | 202 P. 18,20 Okla.Crim. 253 |
| Parties | DAVENPORT v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
On Petition for Rehearing December 12, 1921.
Syllabus by the Court.
In a prosecution for embezzlement under section 7437, Revised Laws 1910, an allegation that the property alleged to have been embezzled was the property of the state, county, and political subdivisions thereof, sufficiently negatives ownership and the right to the property in the defendant, and it is not necessary to specifically allege that he was not the owner of or entitled to same.
Under sections 5794 to 5797, inclusive, Revised Laws 1910, if a demurrer to an indictment or information is sustained and the court is of the opinion that the objection to the demurrer may be avoided by a new indictment or information, the direction of the court to hold the defendant for further prosecution is sufficient to prevent a judgment bar arising from sustaining the demurrer, if, from the language used in the order, it may be fairly inferred that the court intended that the case be resubmitted to a grand jury or that a new information be filed.
When the prosecution for a felony is commenced by the return of an indictment, to which a demurrer is afterwards sustained, and the court is of the opinion that the defects in the indictment may be cured by a new indictment or information the court has the alternate discretion of directing that the case be submitted to the same or another grand jury or that a new information be filed. In case of filing a new information it is necessary that an examining trial be had unless the same be waived by the accused.
In a felony case in which an examining trial is had, the prosecution is "commenced" when the complaint is filed before the examining magistrate, and a warrant of arrest issued thereon served in due time thereafter.
When a demurrer is sustained to an indictment or information for a felony, and the court, at the time of sustaining the demurrer, directs the case to be resubmitted to the same or another grand jury or that a new information be filed, and a new indictment is returned or a new information is filed in obedience to such direction of the court, the prosecution is continuous and relates back to the time of the return of the defective indictment or in case an examining trial was had to the original commencement of the prosecution before the examining magistrate.
By the term "the prosecution," as used in a criminal case is meant the continuous following up, through instrumentalities created by law, of a person accused of a public offense with a steady and fixed purpose of reaching a judicial determination of the guilt or innocence of the accused. It should not be confounded with the written accusation, nor is the term synonymous with criminal action. It consists of all the successive steps, having relation to each other, taken against the accused by the officer or officers charged with the enforcement of the criminal law. It contemplates proceeding judicially and involves all written accusations, including complaints, presentments, indictments, and informations successively and continuously lodged against the accused. It may comprehend one or more related actions, provided the offense in each instance is identical and the actions are continuous and are brought and maintained pursuant to lawful authority.
A statute of limitation confers no vested right, being an act of grace on the part of the state enabling the accused to be informed of the nature of the state's grievance in time to obtain the facts necessary to his defense. A defective indictment or information apprises the defendant of the character of crime with which he is charged and is sufficient to place the statute in repose during the pendency thereof.
If an order of the court is made, at the request of the state, during the pendency of the trial of a case, that the name of a witness for the state not appearing indorsed on the information be then indorsed thereon, the defendant cannot complain unless he shows that he was substantially prejudiced thereby, and it is immaterial whether, after the order of the court, made in the presence of the defendant and his attorney, the name was actually indorsed.
Evidence in this case examined, and held to support the verdict of the jury on question of defendant's guilt.
Additional Syllabus by Editorial Staff.
On the death pending rehearing on appeal, of one accused of crime, the criminal action being to punish defendant in person, must necessarily abate.
Appeal from District Court, Seminole County; J. W. Bolen, Judge.
R. G. Davenport was convicted of embezzlement, and he appeals. Affirmed. Petition for rehearing filed, and, pending determination, prosecution abated, on suggestion of death of defendant.
When the prosecution for a felony is commenced by the return of an indictment, to which a demurrer is afterwards sustained, and the court is of the opinion that the defects may be cured by a new indictment or information, the court has the alternate discretion of directing that the case be submitted to the same or another grand jury or that a new information be filed.
Asp, Snyder, Owen & Lybrand and Ames, Chambers, Lowe & Richardson, all of Oklahoma City, for plaintiff in error.
S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
R. G. Davenport, plaintiff in error, hereinafter called defendant, was convicted in the district court of Seminole county of embezzlement and sentenced to a term of seven years' imprisonment in the state penitentiary and to pay a fine of $5,021.10. He was tried and convicted upon an information in which Mace Herndon, county treasurer, Vernon Kiker, deputy county treasurer, and himself, were jointly charged with the commission of the offense. On application, the trial court ordered a severance, and the defendant appeals to this court from the judgment of conviction.
The defendant complains that the information upon which he was tried is insufficient in that there is no averment that the property alleged to have been embezzled did not belong to the defendant and that he was not entitled to the same.
The defendant was prosecuted under section 7437, Revised Laws 1910, for advising, aiding, and knowingly participating in alleged acts of the county treasurer and deputy county treasurer in converting money and property of the state, county, and political subdivisions of the county, intrusted to the keeping of such officers, to their own use and to the use of the defendant. Section 7437 reads:
"If any county treasurer, or other officer or person charged with the collection, receipt, safe-keeping, transfer or disbursement of the public money, or any part thereof, belonging to the state or to any county, precinct, district, city, town or school district of the state, shall convert to his own use or the use of any other person, body corporate or other association, in any way whatever, any of such public money, or any other funds, property, bonds, securities, assets or effects of any kind received, controlled or held by such officer or person by virtue of such office or public trust for safe-keeping, transfer or disbursement, or in any other way or manner, or for any other purpose; or shall use the same by way of investment in any kind of security, stocks, loan property, land or merchandise, or in any other manner or form whatever; or shall loan the same, with or without interest, to any person, firm or corporation, except when authorized by law; or if any person shall advise, aid, or in any manner knowingly participate in such act, such county treasurer, or other officer or person shall be deemed guilty of an embezzlement of so much of said money or other property, as aforesaid, as shall be converted, used, invested, loaned or paid out as aforesaid; and upon conviction thereof, such county treasurer or other officer or person shall be sentenced to imprisonment in the penitentiary at hard labor for a term of not less than three years nor more than twenty-one years, and also to pay a fine equal to double the amount in money or other property so embezzled as aforesaid; which fine shall operate as a judgment lien at law on all the estate of the party so convicted and sentenced, and shall be enforced by execution or other process for the use of the person whose money or other funds or property as aforesaid shall have been so embezzled; and in all cases such fines, so operating as a judgment, shall be released or entered as satisfied only by the person in interest, as aforesaid."
The Legislature unquestionably had the power to enact that the malfeasance of officers intrusted with public property and money as set forth in the section quoted should constitute the crime of embezzlement, and that any person advising, aiding, or in any manner knowingly participating therein is guilty of the same crime. Therefore, in determining whether or not the information states an offense, we must look to this particular legislative enactment, and not to the law relating in general to embezzlement. An indictment or information which sets out the elements of the offense as contemplated in the foregoing statute and in substantial compliance with the language of the section would be sufficient.
The information now before this court is verbose, replete with repetition, lengthy, and tedious. Perhaps it would not serve as a model of excellent pleading, but we think it was sufficient to place the defendant on trial. To set the same out in full would greatly incumber this opinion, which, on account of the numerous questions raised by learned counsel for defendant, must necessarily be extended, and would serve no useful purpose. The...
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