Syllabus
by the Court.
(a) In
this jurisdiction, an indictment for larceny does not include
the crime of receiving stolen property, knowing the same to
have been stolen.
(b)
When a person is lawfully put on trial on a charge of
larceny, and a jury returns a verdict under the instructions
of the court finding such person guilty of receiving stolen
property, knowing the same to have been stolen, such verdict
is equivalent to an acquittal on the larceny charge, and
another trial cannot be had on the indictment.
A trial
court cannot render judgment imposing a sentence in the
penitentiary for larceny when the verdict of the jury
convicts of receiving stolen property, knowing the same to
have been stolen. And when it clearly appears that a person
was tried for larceny and convicted by the jury of receiving
stolen property, knowing the same to have been stolen, and
was sentenced to the penitentiary by the trial court upon the
original charge of larceny, such judgment is void, and the
person accused is entitled to be discharged on the writ of
habeas corpus.
The
judgment of the court must in all cases be based upon the
verdict of the jury, and the verdict of the jury must be
responsive to the issue joined by the indictment or
information and the plea of the person on trial thereto
otherwise the court is without jurisdiction to render
judgment thereon.
Petition
of J. R. Harris for writ of habeas corpus. Writ granted.
ARMSTRONG
J.
This is
an original application for the writ of habeas corpus by J
R. Harris, who was tried in the district court of Murray
county in September, 1909, on an indictment charging him with
larceny of domestic animals. The charging part of the
indictment is as follows: "* * * Do present and find
that in said Murray county and state of Oklahoma, on the 24th
day of September, in the year of our Lord one thousand nine
hundred and eight, and prior to the finding of this
indictment, J. R. Harris and Charles Lewis, then and there
being, did then and there by stealth willfully, unlawfully
and feloniously steal and carry away personal property of
another, to wit, two bay mules and one black mare then being
the property of one N. A. Armos, with willful, unlawful, and
felonious intent to deprive another thereof and to
appropriate the same to their own use and benefit. And so the
grand jurors aforesaid, upon their oaths aforesaid, do say
and find that J. R. Harris and Charles Lewis, in the manner
and form and by the means aforesaid, did willfully,
unlawfully, and feloniously steal and carry away said two
mules and mare aforesaid, with the willful, unlawful, and
felonious intent to deprive another thereof and to
appropriate the same to their own use and benefit, contrary
to the form of the statutes in such cases made and provided,
and against the peace and dignity of the state." When
the case was called for trial, a severance was asked by
petitioner and granted by the court. The trial resulted in
the jury returning the following verdict, to wit: "We,
the jury, impaneled and sworn to try the issues in the
above-entitled cause, do, upon our oaths, find the defendant
guilty of receiving stolen property knowingly, and fix his
punishment at 2 1/2 years in the state penitentiary. John L.
Meyers, Foreman."
Thereafter
the following judgment was pronounced by the court: "* *
* The prisoner above named, J. R. Harris, defendant, being
personally present in open court and having been legally
indicted and arraigned, and having plead not guilty to the
crime of grand larceny charged in said indictment, and having
been then and there in said court, duly and legally tried and
convicted of said crime, and upon being asked by the court
whether he had any legal cause to show why judgment and
sentence should not be pronounced against him, and giving no
good reason in bar thereof, and none appearing to the court:
It is therefore ordered, adjudged, and decreed by the court
that the said J. R. Harris be confined in the state
penitentiary at McAlester, in the state of Oklahoma, for the
term of two and one-half years for said crime by him
committed. Said term of imprisonment to begin at and from the
18th day of September, A. D. 1909, and that said defendant
pay the costs of this prosecution, for which execution is
awarded. It is further ordered, adjudged, and decreed by the
court that the sheriff of Murray county, state of Oklahoma,
transport said J. R. Harris to the said penitentiary at
McAlester, in the state of Oklahoma, and that the warden of
said penitentiary do confine and imprison said defendant in
accordance with this judgment, and that the clerk of this
court do immediately certify, under the seal of the court,
and deliver to the sheriff aforesaid, two copies of this
judgment, one of said copies to accompany the body of said
defendant to the said penitentiary and to be left therewith
to be warrant and authority for the imprisonment of said
defendant in said penitentiary, and the other copy to be
warrant and authority of said sheriff for the transportation
and imprisonment of said defendant, as hereinbefore provided.
Said last-named copy to be returned to the clerk of said
court with the proceedings of said sheriff thereunder
indorsed thereon. Done in open court this 16th day of
September, 1909. R. McMillan, Judge."
In the
case of Vickers v. United States, 1 Okl. Cr. 458, 98
P. 469, discussing the principle here involved, this court in
an opinion by Doyle, J., said: "To authorize a judgment
the verdict in a criminal case must respond to the issues
submitted to the jury. Its sufficiency is determined by
ascertaining whether it is responsive to and covers the
offense charged in the indictment. 12 Cyc. p. 690. It must
contain within its system, or by reference to the indictment,
every material element of the crime. Where an indictment
shows a crime, a general verdict of guilty, in manner and
form as charged in the indictment, is a special finding of
each element of the crime as charged, and is sufficient.
Reference to the indictment is limited to the crime therein
charged. In this case, while the indictment is labeled
'indictment for rape,' the only offense charged was
assault, and the verdict was a verdict merely of assault and
not of rape, and, as a general verdict, it was not sufficient
to authorize the judgment and...
