Rider v. State

• Decision Date: 11 June 1932
• Docket Number: A-8251.
• Citation: 12 P.2d 552,53 Okla.Crim. 393
• Parties: RIDER v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

12 P.2d 552

53 Okla.Crim. 393

RIDER v. STATE.

No. A-8251.

Court of Criminal Appeals of Oklahoma

June 11, 1932

Syllabus by the Court.

A decoy may be used to detect or entrap a criminal, and as such may afford an opportunity for a criminal to commit a crime, and may be present apparently assisting in the commission of the crime, and such action on the part of the decoy will not constitute a defense. But, when the decoy first suggests initiates, or induces the commission of the crime, or, as it is sometimes said, "artificially propogates" the crime, and thereby lures an otherwise innocent person to aid and abet him, or where the decoy himself does some act essential to the crime charged, a sound public policy will not uphold a conviction.

Appeal from District Court, Texas County; F. Hiner Dale, Judge.

Raymond Rider was convicted of the larceny of domestic animals, and he appeals.

Judgment reversed.

Hughes & Dickson and Rizley & Sweet, all of Guymon, for plaintiff in error.

J Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty Gen., for the State.

CHAPPELL J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Texas county of the crime of larceny of domestic animals, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of two years.

Defendant argues numerous errors, but to dispose of the case it will only be necessary to consider two of them:

(1) That the court erred in overruling defendant's demurrer to the evidence and in overruling defendant's request for an instructed verdict.

Defendant was convicted upon the testimony of Bob Carter, an accomplice, a confessed thief and former convict, and Lonnie Garrett, who was employed by the prosecuting witness. Garrett testified, in substance, that he and Bob Carter were employed by Frank Lindsay to take care of some cattle and sheep; that he was invited by Carter to join him in stealing some of Lindsay's cattle; that he told Lindsay of this proposition, and that Lindsay told him to go back and join in with these boys, and that "I wouldn't get into no trouble in no way and try to catch this boy and try to find out how it was." On cross-examination, referring to his arrangement with the prosecuting witness, Lindsay, he said "He told me to go back down there and take those boys up and join in with them." Garrett was thus commissioned to join in with the supposed thieves in their enterprise. No doubt this is what both Garrett and the prosecuting witness understood at the time. If Garrett was only commissioned to watch and take note of what happened, without being a party to it, why did Lindsay, after telling him to join in with the thieves in the enterprise, see fit to promise Garrett that he would get into no trouble of any kind? The ordinary, obvious, and common-sense construction of the arrangement between Garrett and Lindsay is that Lindsay directed Garrett to become one of the thieves, for the time being and assured him that he would not be prosecuted therefor. And this is borne out by the conduct of the parties afterward. Garrett made the arrangement for the theft of this calf on the 18th day of March, 1931, kept the prosecuting witness and the officers posted as to the progress of the enterprise, and at the time the calf was stolen the officers, together with the son-in-law of the prosecuting witness, were at the ranch watching these boys and followed them from the ranch in Texas to Hardesty, in Texas county.

Garrett left Carter at the ranch and went to Hardesty, made the arrangement with defendant, if any was made, on the evening the calf was stolen, and, not only assisted in catching and loading the calf, but actually drove the truck which conveyed it into Texas county and into the town of Hardesty, and was in possession of the calf and driving the truck at the time he and Carter were arrested.

According to Carter's testimony, there was never anything except a general understanding between him and the defendant as to stealing any cattle. Carter testified he had once stolen a calf and tried to deliver it to defendant, but he had refused to receive it. Carter had invited defendant to visit the ranch on three different occasions and defendant had promised, but never came. Finally, Carter sent Garrett to see defendant and Garrett claims to have made an arrangement to steal the calf and to have received a pistol in payment therefor; claims that defendant instructed him to deliver the calf at his brother's premises, some distance from Hardesty. Garrett claims that Carter went to the house and talked to defendant when they got there with the calf in the truck, but the officers who watched the house on both trips testified that they did not see defendant nor hear any conversation from him. The strange thing about the case is that defendant is nowhere in any manner connected with the larceny of the calf, except by the statements of Carter and Garrett. While the truck was taken to defendant's home with the calf in it, there is nothing in the record to show-aside from the testimony of Carter and Garrett-that defendant knew the truck was there or knew that the calf had been stolen.

Garrett did all these things with the knowledge and consent of the owner and after giving notice to the sheriff's force that the crime would be committed at this particular time.

This statement of fact brings the case within the rule laid down in 18 Am. L. R. 174: "Where the owner, in person or by his duly authorized agent, suggests to the accused the criminal design, and actively urges, co-operates with, and assists the accused in the taking of the goods, such conduct amounts to a consent to the taking, and the criminal quality of the act is wanting."

In Roberts v. Territory, 8 Okl. 326, 57 P. 840, the Supreme Court of the territory said: "Under an indictment for burglary, if it appeared from the evidence that the entry...