Flohr v. Territory Oklahoma
| Citation | 78 P. 565,14 Okla. 477,1904 OK 93 |
| Parties | CHARLES FLOHR AND EMMA FLOHR v. THE TERRITORY OF OKLAHOMA. |
| Decision Date | 03 September 1904 |
| Court | Supreme Court of Oklahoma |
¶0 1. INDICTMENT--Demurrer. A demurrer to an indictment in the following form: "It does not substantially conform to chapter 68, Statutes of Oklahoma, 1893, entitled Procedure Criminal," is too indefinite in its terms and will not be considered upon review, unless the exact defect intended to be reached is pointed out by the brief of counsel who complain of the judgment of the court in overruling the same.
2. SAME--Larceny by Fraud and Stealth. An indictment which in a single count charging the crime of grand larceny alleges that the property was taken by fraud and stealth will not be held insufficient upon an objection to the introduction of testimony upon the ground that the indictment charges two separate and distinct offenses, or that the indictment is uncertain, and fails to charge larceny under the statute, or because the offense is charged to have been committed in the different ways in which the statute designates the same may be accomplished.
3. SAME--When Sufficient. Where in an indictment for larceny the property is charged to have been taken by fraud and stealth, it is not necessary to set out the fraudulent acts relied upon as constituting the fraud, and in such cases the crime of larceny may be satisfactorily shown by proof that at the time of taking it was taken with the felonious intent to convert it to the taker's own use, and to deprive the owner thereof, regardless of the fact as to whether the taking was accomplished by fraud or by stealth.
4. SAME--Venue. An indictment charging a criminal offense which shows that it was found by a grand jury of a county of this Territory duly impanelled, charged and sworn to inquire into and true presentment make of all public offenses against the Territory of Oklahoma triable within the county of .... (naming it), and that the defendant on a day certain (naming it) in said county of .... (naming it) did then and there, etc., sufficiently charges the venue in the Territory of Oklahoma, and in the county named.
5. LARCENY--EMBEZZLEMENT--Distinction. The distinction between larceny where the taking is fraudulent, and embezzlement, is determined with reference to the time when the intent to wrongfully convert the property to the taker's use, occurs. If the property in the hands of the taker amounted to a bailment, or if the property went into the possession of the taker with knowledge of the owner on account of any fraudulent representation by the taker, and the taker received the same, intending at the time of its reception to convert the same to his own use and deprive the owner thereof, the crime is larceny. If, on the other hand, the taker receives the property as a bailment of the same, or with the knowledge and consent of the owner, intending at the time a compliance with the terms of the bailment, or to conform to the owner's wishes concerning the property in his possession, and afterwards converts the property to his own use and fails to account for the same upon demand, the crime is embezzlement.
6. EVIDENCE--Memory, Refreshing From Memoranda. It is not error, where during the progress of a trial an officer who has taken goods upon a legal process is testifying, to permit such officer to refresh his memory from a copy of his return upon process showing the property taken by himself, which copy has been made by a typewriter in his (the officer's) presence and under his direction. It is not error, where, for the purpose of expediting the business of the court, the court permits a witness to use for the purpose of refreshing his memory a copy of a legal instrument which has been made under the direction of the court and furnished the witness by the court.
7. SAME--Of Other Stolen Property. Where in the trial of a criminal cause, the defendant was charged with the larceny of numerous items of merchandise, possession of which had been recovered through the service of a writ of replevin and the execution of a search warrant, it was not error to permit the officers serving such process to show what property was so recovered, notwithstanding the fact that some of the property so recovered was not enumerated in the indictment or charged to have been stolen.
8. SAME--Cross--Examination--Privileged Subjects. A practicing physician and his wife, prosecuting witnesses in a cause wherein a charge of grand larceny is being tried, may not be compelled upon cross-examination to answer questions touching the marriage relations between them for the purpose of affecting their credibility as witnesses concerning such larceny; nor can such physician rightfully be compelled to answer questions which intimate that he has at some time been guilty of producing an abortion, for the purpose of affecting his credibility as such witness.
9. SAME--Cross--Examination--Limit as to Former Trial. Where a court stenographer has testified to questions propounded to a witness upon a former trial and answers thereto, and for the purpose of answering such questions has been permitted to use his shorthand notes of the testimony at the former trial, and upon cross-examination is asked to read from his shorthand notes all of the testimony given by such witnesses at such former trial, it is not error to sustain objection to such question.
10. INSTRUCTIONS TO JURY. It is not reversible error for the court to refuse an instruction which reads: "And if after retiring to your jury room there remains a reasonable doubt in the minds of any one of the jurors as to the guilt or innocence of the defendant, then the jury cannot convict the defendant," where the court has given in its general instructions a correct instruction touching their duties in case they entertain a reasonable doubt of defendant's guilt, and which instruction given by the court is addressed to the jury as a whole instead of to the individual jurymen as asked for in the instruction refused.
11. SAME--As to Grand and Petit Larceny. Where grand larceny is charged in an indictment, and the court in its instructions to the jury has once plainly and distinctly informed the jury of the distinction between grand and petit larceny, and instructed them that they can convict of the crime of grand larceny only in case they find the value of the property taken to have been more than twenty dollars, and that their verdict should be that of guilty of petit larceny in case they find the value of the property does not exceed twenty dollars, it is not error if such instruction as to value is not repeated in another instruction given where the elements of the crime are defined.
12. FRAUD OR STEALTH--Taking by. Where a statute defines the crime of grand larceny to be the taking of personal property by "fraud or stealth," and an indictment charges the taking of the property by fraud and stealth, it is not error to instruct the jury that before they can find the defendant guilty they must be satisfied beyond a reasonable doubt "that it (the property) was taken either by fraud or stealth, or by fraud and stealth."
13. REPLEVIN OF STOLEN PROPERTY--Effect of. Where possession of stolen property is recovered by a writ of replevin, it is not error to instruct the jury as follows: "But the fact that this replevin suit was commenced, and the fact that the defendants or one of them gave a redelivery bond and retained the property, in no wise relieves him or them of criminal responsibility for the larceny of the property." Such instruction does not invade the province of the jury in determining the weight and effect of the testimony.
14. LARCENY--From Trunk in Possession. An instruction which advises the jury that the crime of larceny is committed by opening a trunk unauthorizedly and taking therefrom the contents, feloniously intending to appropriate the same to the taker's own use and benefit, where such trunk has been left by the owner in the custody of such person so opening the same, is correct. Such taking would not necessarily constitute the crime of embezzlement.
15. TRIAL--Presence of Defendants. Where the record of the trial-shows that after a noon adjournment of the court the defendants were present at the convening of the court when the trial was resumed, and during that afternoon hearing in the case the jury were given a ten minutes' recess, during which time the court had under advisement a legal question presented in the case, it is not necessary that the record should show that the defendants were present upon the resumption of the trial after determining such legal objection. They will be presumed to have been present during that afternoon session of the court, unless the record affirmatively shows their absence.
Error from the District Court of Woods County; before J. L. Pancoast, Trial Judge.
A. C. Towne, Temple Houston, H. A. Noah and W. S. Denton, for plaintiffs in error.
P. C. Simons, Attorney General, and Luther Martin, County Attorney, for defendant in error.
¶1 The appellants Charles Flohr and Emma Flohr were indicted at the February, 1903, term of the district court of Woods county, charged with the crime of grand larceny, and at the same term of said court the cause came on for trial, and the defendants were found guilty and sentenced, the said Emma Flohr for one year, and the said Charles Flohr for three years in the penitentiary.
¶2 Thirteen grounds of error are assigned by defendants in their motion for a new trial, the overruling of which is complained of in the petition of this court.
¶3 The indictment upon which the defendants were tried and convicted is as follows:
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