Johnson v. U.S.

• Decision Date: 04 February 1909
• Citation: 99 P. 1022,2 Okla.Crim. 16,1909 OK CR 24
• Parties: JOHNSON v. UNITED STATES.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

99 P. 1022

2 Okla.Crim. 16, 1909 OK CR 24

JOHNSON v. UNITED STATES.

Court of Criminal Appeals of Oklahoma

February 4, 1909

Syllabus by the Court.

Where the defense in a larceny case offers proof to show that the accused honestly believed, at the time of the taking of the property alleged to be stolen, that it was his property, it is error for the court to refuse to instruct the jury when requested by the accused that: "If the property mentioned in the indictment was the property of the defendant, you will acquit him; or, if you have a reasonable doubt as to whether it was defendant 's property or not you will acquit him." It is likewise error in such a case for the court to refuse to instruct the jury when requested by the accused as follows: "If the property mentioned in the indictment was the property of the party named in the indictment at the time of the taking by the defendant, yet if the defendant believed that said property was his, you will acquit him; or, if you have a reasonable doubt as to whether he thought the property was his when he took it, you will acquit him."

[Ed Note.-For other cases, see Larceny, Cent. Dig. §§ 194, 196; Dec. Dig. §§ 71, 73. ^[*]]

In a larceny case, where the defense is made upon the theory that the defendant honestly believed he was taking his property when he took the property alleged to have been stolen, it is error for the court to instruct the jury as follows "The jury are further instructed that, although they may believe from the evidence, beyond a reasonable doubt, that the defendant took and drove away the animal in question, as charged in the indictment, still, if they further believe from the evidence, and are satisfied from the testimony, that the defendant took the property under a claim of title by him honestly entertained (it must be honestly), then he is not guilty of larceny."

[Ed Note.-For other cases, see Larceny, Cent. Dig. § 194; Dec. Dig. § 71. ^[*] ]

The judgment of the court below will not be reversed when the error complained of is (except in capital offenses) founded upon the improper conduct of the prosecuting attorney, unless the record shows that the accused not only objected to the statements and arguments at the time they were made, but moved the court to withdraw them from the jury and admonish the jury against considering them, and the record shows the overruling of such motion.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1691, 2645; Dec. Dig. § 1037. ^[*]]

Error from the United States Court for the Western District of the Indian Territory; Louis Sulzbacher, Judge.

Monroe Johnson was convicted of larceny, and brings error. Reversed and remanded.

The accused in this case was indicted during the December, 1904, term of the United States Court for the Western District of Indian Territory sitting at Wagoner, on the charge of grand larceny and receiving stolen property, and on the 7th day of March, 1905, the case was tried, and resulted in a verdict of guilty of grand larceny, and a sentence to the United States penitentiary at Ft. Leavenworth, Kan., for a period of three years, and to pay a fine of $50. An appeal was duly prosecuted to the United States Court of Appeals for the Indian Territory, and this case was pending in that court when the state of Oklahoma was admitted into the Union. Under the provisions of the enabling act and the Constitution of this state this case was duly transferred to the Supreme Court. Upon the creation of this court the Supreme Court duly transferred the case to this court. Objections and exceptions were duly taken and properly saved in the record by the accused in the court below in respect to all the errors herein complained of. A motion for a new trial was made in due time and overruled, to which ruling the accused duly objected and excepted, and now prosecutes error in this court to reverse the judgment of the court below.

Chas. G. Watts, De Roos Bailey, and Thomas H. Owen, for plaintiff in error.

Charles West, Atty. Gen., and W. C. Reeves, Asst. Atty. Gen., for the United States.

BAKER J.

The petition in error of the accused alleges that there is manifest error in the action, rulings, and opinions of the court below, and makes the following specifications: (1) The court erred in not granting appellant a new trial. (2) The court erred in rendering judgment on the verdict of the jury. (3) The court erred in rendering judgment on the verdict, the said verdict being a general one. (4) The court erred in not instructing the jury, at the request of appellant, as follows: "You are instructed that before you will be authorized to find the defendant guilty, you must believe that the property mentioned in the indictment was the property of the party named in the indictment, and that the defendant feloniously took the same." (5) The court erred in not instructing the jury, at the request of appellant, as follows: "If the property mentioned in the indictment was the property of the defendant, you will acquit him; or, if you have reasonable doubt as to whether it was defendant's property or not, you will acquit him." (6) The court erred in not instructing the jury, at the request of appellant, as follows: "If the property mentioned in the indictment was the property of the party named in the indictment at the time of the taking by the defendant, yet, if the defendant believed that said property was his, you will acquit; or, if you have a reasonable doubt as to whether he thought the property was his when he took it, you will acquit him." (7) The court erred in not stopping the attorney for the government at the request of appellant, who, in closing the case, used the following language: "You can't afford to turn these defendants loose on their own testimony. This case reminds me of a case I tried at Eufaula. To illustrate, last week at Eufaula I tried a case in which a negro was charged with stealing cattle. That negro used to live at Wagoner, and was identified there by persons who lived in Wagoner. That negro took the stand and testified that he was never in Wagoner in his life, and told such a straightforward and impressive story that he almost convinced his honor on the bench that he was not guilty, and in fact he had me doubting as to whether he was guilty, until I got hold of him on cross-examination, and there were some things cropped out that convinced me that he was not telling the truth, and now we can prove by a dozen negroes in Wagoner that he did at that time live near Wagoner, and that he is the identical party that he was identified to be in Eufaula. If you turn this defendant loose in the face of this evidence, I want you to come to me and this court with a petition to dismiss every case of larceny on this docket." (8) The court erred in not allowing the jury to assess the punishment of appellant. (9) The court erred in refusing appellant's request that the jury fix his punishment in the event of his conviction.

The court instructed the jury in this case as follows: "The jury are further instructed that, although they may believe from the evidence, beyond a reasonable doubt, that the defendant took and drove away the animal in question, as charged in the indictment, still, if they further believe from the evidence, and are satisfied from the testimony that the defendant took the property under a claim of title by him honestly entertained (it must be...