Harry v. State

• Decision Date: 23 May 1936
• Docket Number: A-9095.
• Citation: 58 P.2d 340,59 Okla.Crim. 302
• Parties: HARRY v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

58 P.2d 340

59 Okla.Crim. 302

HARRY v. STATE.

No. A-9095.

Court of Criminal Appeals of Oklahoma

May 23, 1936

Syllabus by the Court.

1. In a criminal action the defendant has the right to plead guilty and the effect of such a plea is to authorize the imposition of punishment prescribed by law upon a verdict of guilty of the offense sufficiently charged in the indictment or information.

2. The true test of the sufficiency of an indictment or information is, not whether it might possibly have been made more certain, but whether it alleges every element of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet.

3. Where the objections mentioned in section 2948, St.1931 appear upon the face of the indictment, they can only be taken by demurrer, except that objection to the jurisdiction of the court over the subject of the indictment, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, and in arrest of judgment. Section 2956.

4. An objection to the sufficiency of an indictment cannot be raised for the first time upon appeal, unless it appears that the indictment does not charge any criminal offense.

5. A plea of guilty does not preclude the defendant from attacking the indictment on the ground that it charges no offense.

6. Bank's managing officers who permit bank to continue to receive deposits by its employees with knowledge of bank's insolvency are guilty of receiving deposits within statute making it a felony for bank officer to accept or connive at accepting deposit with knowledge of bank's insolvency, notwithstanding officers do not personally receive deposits. Section 9188.

7. The punishment or the penalty is the payment of the fine and costs. The commitment until the fine and costs are paid, or satisfied, is no part of the punishment; it is the mode of executing the sentence, that is, of enforcing the payment of the fine and costs.

8. The power of this court to modify a judgment by reducing the punishment in the furtherance of justice is not the power to pardon or commute by the chief executive of the state. The judicial power to modify a judgment and the executive power to pardon or commute are wholly distinct in their nature. The one is an award of justice. The other is an act of grace.

9. Indictment charging the offense of receiving money for deposit in an insolvent bank held sufficient. Section 9188.

Appeal from District Court, Pawnee County; Bradford J. Williams Judge.

V. M. Harry was convicted of receiving money for deposit when bank was insolvent, and he appeals.

Affirmed.

W. Lee Johnson and McCollum & McCollum, all of Pawnee, for appellant.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Carl D. McGee, Co. Atty., of Pawnee, for the State.

DOYLE Judge.

This appeal is from a judgment of conviction and sentence to pay a fine of $1,000 and costs, pronounced and entered October 3, 1935, in the district court of Pawnee county upon a plea of guilty entered by appellant, V. M. Harry, following his arraignment on an indictment presented in open court by the grand jury, and filed November 28, 1934, which indictment, omitting, formal parts, reads as follows:

"in the name and by the authority of said State of Oklahoma, do present and find that in said County of Pawnee in said State of Oklahoma, on the 30th day of July, in the year of our Lord, One Thousand Nine Hundred and Thirty-two one V. M. Harry, a person then and there being did, then and there, knowingly, willfully, unlawfully, feloniously commit the crime of receiving a deposit in an insolvent bank, in the manner and form as follows, towit:

That said defendant, V. M. Harry, being then and there a director and Chairman of the Board of Directors, and active managing officer of the First Commerce Bank, and the said First Commerce Bank being then and there a banking corporation, organized and existing under and by virtue of the laws of the State of Oklahoma, and engaged in transacting a general banking business at Ralston, Pawnee County, Oklahoma, did then and there unlawfully willfully and feloniously receive and accept a deposit in said bank and was accessory to, and did permit and connive at the receiving and accepting on deposit in said bank the sum of Twenty Two and 50/100 Dollars ($22.50) in money, bank bills, bank notes, United States Treasury Notes, gold certificates, silver certificates, currency, checks, drafts of the value of Twenty Two and 50/100 Dollars ($22.50), the personal property of one George Price, when said bank was then and there insolvent, and the said defendant then and there knew said bank was insolvent, contrary to the form of the Statute and the Constitution of the State of Oklahoma in such case made and provided."

The assignments of error are:

First. That the indictment was insufficient both as to form and substance to give the said district court jurisdiction over the person of said defendant, and insufficient to confer jurisdiction upon said court to pass the judgment and sentence herein appealed from.

Second. That the judgment and sentence of the court is excessive.

Counsel for appellant in their brief say:

"We submit two propositions to the court for its careful consideration:

First. That the trial court did not have jurisdiction because the indictment is nothing more or less than a general letter written by the county attorney to the district court of Pawnee county, with the endorsement of the grand jury.

Furthermore, the indictment is duplicitas. It accuses the defendant with four separate and distinct things.

First, receiving and accepting a deposit,

Second, being an accessory to receiving and accepting a deposit,

Third, that he permitted the receiving and accepting the deposit,

Fourth, that he connived at the receiving and accepting the deposit."

It is strenuously insisted that the indictment fails to charge an offense because it does not allege the bank was insolvent at the time the deposit was received.

Upon the record in this case the only question presented is the sufficiency of the indictment to charge an offense.

The true test of the sufficiency of an indictment or information is not whether it might possibly have been made more certain, but whether it alleges every element of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet. Warren v. State, 24 Okl.Cr. 6, 215 P. 635; Martin v. State, 35 Okl.Cr. 248, 250 P. 552.

An indictment cannot be attacked upon appeal unless some foundation was laid therefor before final judgment was rendered. The defendant may take advantage of a defective indictment by demurring thereto before the trial, or by motion in arrest of judgment.

The function of a demurrer, which was not resorted to by the defendant in this case, is to defeat the indictment without a trial, whenever it appears upon the face thereof that it is subject to one or more of the five objections named in the statute. Section 2948, St.1931. These objections can be taken only by demurrer, "except that the objection to the jurisdiction of the court over the subject of the indictment or information, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, and in arrest of judgment." Section 2956. Stone v. State, 12 Okl.Cr. 313, 155 P. 701; Franklin v. State, 17 Okl.Cr. 348, 188 P. 686; Cotton v. State, 22 Okl.Cr. 252, 210 P. 739; Rhodes v. State (Okl.Cr.App.) 49 P.2d 226.

If no crime is charged in the indictment, then none is confessed by pleading guilty thereto, and this question may be considered though for the first time raised on appeal as in this case.

It is an elementary principle in criminal jurisprudence that every material fact essential to the commission of a criminal offense must be alleged in the indictment or information.

There can be no conviction or punishment for a crime without a formal and sufficient accusation. In the absence thereof the court acquires no jurisdiction whatever, and if it assumes jurisdiction, the trial and conviction are a nullity. 31 C.J. 559.

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