George v. U.S.

• Decision Date: 24 October 1908
• Citation: 97 P. 1052,1 Okla.Crim. 307,1909 OK CR 4
• Parties: GEORGE v. UNITED STATES.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

97 P. 1052

1 Okla.Crim. 307, 1909 OK CR 4

GEORGE v. UNITED STATES.

Court of Criminal Appeals of Oklahoma

October 24, 1908

Syllabus by the Court.

In cases of larceny it is essential for the prosecution to prove that the property was feloniously taken from the person named in the indictment as the owner, but this does not require that in every case direct proof of ownership shall be given.

[Ed Note.-For other cases, see Larceny, Cent. Dig. § 156; Dec Dig. § 60. ^[*] ]

It is not essential that the corpus delicti should be established by evidence independent of that which tends to connect the accused with its perpetration. The same evidence which tends to prove one may also tend to prove the other, so that the existence of the crime and the guilt of the defendant may stand together inseparable on one foundation of circumstantial evidence.

[Ed Note.-For other cases, see Criminal Law, Cent. Dig. § 1269; Dec. Dig. § 563. ^[*]]

The want of consent of the owner to the taking of his property alleged to have been stolen is an essential ingredient of the crime of larceny. The fact of nonconsent to the taking may be proven by facts and circumstances which sufficiently show that the property was feloniously taken, and the fact that the owner caused search to be made for the stolen property is a cogent circumstance to show want of consent to the taking.

[Ed. Note.-For other cases, see Larceny, Cent. Dig. § 153; Dec. Dig. § 62. ^[*] ]

Where a similar instruction has been given a requested instruction need not be given.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829. ^[*]]

Reputation or hearsay is admissible in all matters of pedigree, and so the declarations of the defendant that he is a white man, and his general reputation for 25 years that he was a white man, is sufficient when uncontradicted to prove noncitizenship in any Indian tribe or nation.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 976; Dec. Dig. § 421. ^[*]]

Where the record shows no objection was made and no exceptions taken, the error will not be considered by the court except in the interest of justice.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2619; Dec. Dig. § 1030. ^[*]]

Error from the United States Court for the Central District of the Indian Territory, at Durant; Thomas C. Humphrey, Judge.

Campbell George was convicted of larceny, and brings error. Affirmed.

Campbell George was indicted in the United States court in the Indian Territory for the Central district of said territory, sitting at Atoka, which indictment was returned by the grand jury and filed in open court on the 10th day of October, 1903, wherein said defendant was charged with having on the 29th day of April, 1903, within that jurisdiction, committed the offense of larceny of a horse, the property of John Adkins. The defendant entered a plea of not guilty, and on October 10, 1904, upon trial in said court at Atoka, he was found guilty as charged in said indictment. Whereupon he filed his motion for a new trial, which motion was by the court on November 1, 1904, sustained, and a new trial granted. The defendant having filed a motion for a change of venue the court ordered on January 7, 1905, that the venue be changed to the Durant division of said court, and directed the clerk of said court to forward there a duly certified copy of the indictment, together with the original papers and certified copies of the record entries in said case. At the June, 1905, term of said court at Durant, in said district, a second trial was had, and on June 9, 1905, the jury in said case returned a verdict finding the defendant guilty as charged. On June 13, 1905, the court overruled defendant's motion for a new trial, and sentenced defendant to imprisonment in the United States penitentiary at Ft. Leavenworth for a period of one year and one day. A writ of error was allowed to the United States Court of Appeals for the Indian Territory, at South McAlester, and this case was pending there on the passing of that court, with the organization of the state of Oklahoma, and was duly removed to the Supreme Court of Oklahoma by virtue of the provisions of the enabling act (Act June 16, 1906, c. 3335, 34 Stat. 267) and the Constitution of Oklahoma, and is now before this court by virtue of section 170, art. 7, Const. Okl., and chapter 28 of the Session Laws of the First Session of the Legislative Assembly of the State of Oklahoma, entitled "An act creating a Criminal Court of Appeals, and defining the jurisdiction of said court," approved May 18, 1908 (Laws 1908, p. 291, c. 28).

John Adkins, the owner of the horse charged to have been stolen, was not present at the trial to testify as to the identity and ownership of the horse or his want of consent to the taking of the same by the defendant.

J. H. Riddle was the first witness called on behalf of the government. He testified that he lived near Globe, about 16 miles northwest of Coalgate and about 8 miles east from Pine, and that John Adkins was at his place on Wednesday, the third day after his horse was stolen, inquiring for the horse, and, at his request, witness went with him, hunting for the horse. They found in the woods where a horse had been roached. The mane that had been cut off was black. They then went west to the "Pott" country, to the home of one Walter Vail. When they arrived there, Vail was not at home, and Adkins arranged with witness to go to the George place, in the Comanche country. Adkins then returned home. Witness proceeded west, and met Dera Duncan, who informed him that he had seen defendant with such horse; and, when witness reached Bob George's place, he found the horse there. Bob George is a brother of the defendant, and his place is about 130 miles from where the horse was taken. This was about two weeks after the horse was taken. Witness took the horse and brought him back, and delivered him to Adkins, who was a railroad laborer, living in a tent near Coalgate. The horse had a black mane, and had been roached, and was branded "A D." Witness further testified that Adkins was a white man, and his camp was in the Choctaw Nation.

S. T. Stevens was the second witness for the government. He testified that he lived at Pine, was acquainted with defendant, Campbell George, and with Walter Vail, and that they were in his store on Sunday, the 29th of April, 1903, the night of the day the horse was taken, and that Pine is about 15 miles north of Coalgate.

Mrs. Fanny Pope was the third witness for the government. She testified that in April, 1903, she was living at Adelia post office, about five miles southwest of Pine, and that she knew Campbell George and Walter Vail, and that they passed her house on Sunday, and that she heard that Adkins lost a horse that night.

J. R. Hutchins was the fourth witness for the government. He testified that he knew the defendant, Campbell George, and in the spring of 1903 he met him and another man about three miles east of Mill Creek in the Chickasaw Nation, and that Mill Creek is about 15 miles west of Coalgate. This was on a Monday morning, about 9 or 10 o'clock. Dera Duncan was riding in the buggy with witness. Defendant and his fellow traveler were going west, and were riding very fast. Defendant, Campbell George, was riding what witness described as a bay, chunky built, roached mane pony, and the other man was riding a bay mare. Witness was acquainted with J. H. Riddle, and met him a few days later, looking for Adkins' horse.

Dera Duncan was the fifth witness for the government. He testified that he was living at Mill Creek in the spring of 1903, and met defendant and another man in the road near Mill Creek, and now recognizes defendant as one of the men he met. Defendant was riding a bay pony that had a little white on his nose, and white specks on hip, and mane roached, and also branded. The man with defendant was riding a bay mare. Witness saw the same horse about 10 or 12 days later in a livery stable at Mill Creek, where he pointed it out as the horse defendant was riding on that Monday morning when witness, in buggy with the witness Hutchins, met the defendant. The defendant and the man with him were going west, and were riding at an unusually fast trot.

J. J. Ward was the sixth witness for the government. He testified that in the spring of 1903 he lived west of Coalgate, and knew a man that was working in a tie camp named Adkins, and knew that he lost a horse about the same time witness lost a bay mare, and from information given by J. R. Riddle witness went to the Bob George place, in the Comanche country, and there found his bay mare, and that at that time Adkins' camp was about two miles from where witness lived. Witness does not know where Adkins is now.

J. H. Riddle, recalled on behalf of the government, testified that he has known defendant's family about 25 years, and that they are not Indians, and never claimed to be, and are noncitizens.

S.D. Stevens, recalled on behalf of the government, testified that he has known Walker George, father of defendant, and his family for over four years; that they are renters in his neighborhood; that he never heard them claim to be citizens; that they are regarded as noncitizens; that they seem to be white people.

R. L. Williams testified on behalf of the government that he was a resident of Durant, lawyer by profession, and had seen defendant and his father several times, and had known of them for several years, and that he knew, by general reputation, that they were noncitizens, and knew, by reputation, that the defendant's mother was a noncitizen.

There were no witnesses sworn nor testimony offered on behalf of the defendant.

J. G Ralls, for plaintiff in error.

T. B....