Harris v. State

• Decision Date: 02 November 1918
• Docket Number: A-2645.
• Citation: 175 P. 627,17 Okla.Crim. 69,1918 OK CR 209
• Parties: HARRIS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

175 P. 627

17 Okla.Crim. 69, 1918 OK CR 209

HARRIS v. STATE.

No. A-2645.

Court of Criminal Appeals of Oklahoma

November 2, 1918

Syllabus by the Court.

Where a plea of former jeopardy is interposed in the form of a plea in abatement, it should be treated as a plea in bar to the action, unless it clearly appears from the plea itself as a matter of law it is insufficient.

Where the plea of former acquittal shows an acquittal of an offense other than that for which defendant is informed against and placed on trial, the failure of the trial court to submit the issue of former acquittal to the jury under such circumstances was not error.

The Register of Deeds was required to make a monthly report of the fees earned and collected by him, and to pay the same monthly into the county treasury. His failure or refusal so to do (pay all of such fees into the county treasury at the end of each month) constituted an embezzlement on his part for which crime he was liable to a separate prosecution for each and every month for which he had failed so to account.

[Ed Note.-For other definitions, see Words and Phrases, First and Second Series, Embezzlement.]

Where on the trial for embezzlement of fees by a register of deeds alleged to have been committed on or about a designated date, the evidence showed distinct appropriations by the accused of certain sums of money during several different months of his term of office, and that the defendant moved the court to require the state to elect on which particular month's shortage it would rely for a conviction, which motion was sustained, and the state elected to rely upon the failure to report for the month of January, 1914, and the instructions of the court filed in support of the plea of former jeopardy show conclusively that the jury was limited in considering guilt to a particular embezzlement for January, 1914, and the verdict of the jury return acquits the defendant only of embezzlement of funds received during the month of January, 1914, it appears conclusively that the defendant was only charged, tried for, and acquitted of an embezzlement of fees collected during the month of January, 1914. Such an acquittal was not a bar to subsequent prosecution for the embezzlement of fees collected during the month of January, 1913.

The constitutional provision against a second jeopardy is merely declaratory of the ancient principle of the common law. In application it is limited only to a second prosecution for the identical act and crime, both in law and fact, for which the first prosecution was instituted.

The burden is upon the defendant to show that his plea of former acquittal and former jeopardy is well founded, both in law and fact.

Where it is clear, from an examination of the entire record, that remarks of the trial court indulged in when ruling upon the admissibility of evidence, have not injured the defendant, such remarks will not be considered alone as a sufficient ground for granting a new trial, especially where no request was made to withdraw the same from the consideration of the jury, and no ruling of the trial court thereon, which was excepted to at the time.

Appeal from District Court, Marshall County; George C. Crump, Judge.

G. C. Harris was convicted of the crime of embezzlement, and he appeals. Affirmed.

F. E. Kennamer, of Madill, James Bolen and C. C. Williams, both of Ada, and Ben F. Rogers and E. S. Hurt, both of Madill, for plaintiff in error.

S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.

MATSON J.

This is an appeal from the district court of Marshall county, wherein the defendant was convicted of the crime of embezzlement, and sentenced to serve a term of one year and one day in the state penitentiary. From such judgment of conviction he prosecutes an appeal to this court, and asks that the judgment be reversed upon two grounds: First, that the court erred in overruling his plea in abatement, which set up former jeopardy and former acquittal of the offense charged in the information on which this conviction was based; second, error of the trial court in making certain statements and remarks during the trial of the cause over the objection and exception of the defendant, which were prejudicial to his substantial rights.

In order to understand the facts upon which the plea of former jeopardy is based, it will be necessary to set out in this opinion a copy of the information upon which this trial is had and conviction rendered, as well as a copy of the plea of former jeopardy interposed, which was overruled by the trial court:

"Information.

State of Oklahoma, Plaintiff, v. G. C. Harris, Defendant.

In the District Court in and for Marshall County, State of Oklahoma.

Comes Geo. L. Sneed, the duly qualified and acting county attorney in and for Marshall county, Oklahoma, and gives the district court of Marshall county and the state of Oklahoma to know and be informed that the above-named defendant, G. C. Harris, late of Marshall county, did, in the said county and state, on or about the ___ day of February, A. D. 1913, commit the crime of (G. C. Harris) in the manner and form as follows: That is to say, the said defendant did, in the county and state aforesaid, at the time and date above named, then and there, unlawfully, willfully, wrongfully, fraudulently, and feloniously embezzle, convert, and appropriate the sum of $35.75 to his own use and to a use and purpose not in the due and lawful execution of the trust then and there imposed in him; that is to say, the said defendant on the date above named was the duly elected and acting register of deeds of Marshall county, Oklahoma, and by reason of the said official position received in custody for said county certain sums of money, to wit, fees charged and collected for the filing and recording of instruments in said office, and of said funds so received and collected by the said G. C. Harris he did on the day and year above-named then and there willfully, wrongfully, fraudulently, and feloniously embezzle, convert, and appropriate the sum of thirty-five and 75/100 dollars to his own use, and to uses and purposes not in the due and lawful execution of said trust, contrary to the form of the statute in such case made and provided and against the peace and dignity of the state.

Geo. L. Sneed, County Attorney."

State of Oklahoma, County of Marshall. In the District Court.

State of Oklahoma, Plaintiff, v. G. C. Harris, Defendant.

Plea of Former Acquittal and Jeopardy.

Comes now the defendant, G. C. Harris, and for his special plea and bar herein says that the state of Oklahoma should not prosecute further this cause against him, because he says that heretofore, to wit, on the 7th day of December, 1914, in the district court of Marshall county, state of Oklahoma, there was duly and legally presented and filed in said court a valid information against him for the crime of embezzlement, a copy of which is hereto attached, marked Exhibit A, and made a part of this plea.

And that on the 5th day of May, 1915, the said accusation against this defendant, G. C. Harris, in said cause No. 303, was legally tried upon its merits in said court by a jury drawn and impaneled, and the said G. C. Harris was by the verdict of said jury and the judgment of said court duly and legally acquitted of said accusation of said embezzlement, a copy of which verdict is hereto attached marked Exhibit B and made a part of this plea. And also a copy of the instructions of said court to the said jury in said cause No. 303 is hereto attached and marked Exhibit C and made a part of this plea and bar herein.

That said judgment and verdict still remains in full force and effect, and not in the least reversed and made void, and is the verdict and judgment of a court of competent jurisdiction. And the defendant G. C. Harris in fact says and alleges that he, the said G. C. Harris, and the said G. C. Harris so accused and acquitted as last aforesaid, are one and the same person, and no other and different person, and that the offense of which he, the said G. C. Harris, was so acquitted as aforesaid and the offense charged against him in the information herein, and for which he is now being prosecuted, is one and the same transaction or offense and identical in both law and fact.

And the defendant, G. C. Harris, further says that he has been duly and legally acquitted formerly as aforesaid, and that, in the manner and form aforesaid, he was placed in jeopardy for the same offense of which he is now being prosecuted in this cause, and that he is ready to verify and make proof of the things herein alleged.

Wherefore defendant prays that said plea be sustained in every respect, and that he be discharged from the judgment and plea of this court, and for such other and further relief as the court may deem just. G. C. Harris.

State of Oklahoma, Marshall County.

G. C. Harris, of lawful age, being first duly sworn, upon oath says that he is the defendant above named, that he has read the foregoing plea, and that the facts and statements contained therein are true and correct.

G. C. Harris.

Subscribed and sworn to before me this 12th day of September, 1915.

[Seal.] R. D. Stone, Deputy Court Clerk."

"Exhibit A.

State of Oklahoma, Plaintiff, v. G. C. Harris, Defendant.

In the District Court in and for Marshall County, State of Oklahoma.

Information.

Comes Chas. A. Coakley, the duly qualified and acting county attorney in and for Marshall county, Oklahoma, and gives the district court in Marshall county and the state of Oklahoma to know and be informed that the above-named defendant, G. C. Harris, late of Marshall county, did, in the said county and state, on or about the 11th day of July, 1914, commit the crime of

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