Rogers v. State

• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Writing for the Court: MATSON, J.
• Citation: Rogers v. State, 170 P. 269, 1918 OK CR 13 (Okla. Crim. App. 1918)
• Decision Date: 02 February 1918
• Docket Number: A-2534.
• Parties: ROGERS v. STATE.

170 P. 269

Okla.Crim. 235, 1918 OK CR 13

ROGERS v. STATE.

No. A-2534.

Court of Criminal Appeals of Oklahoma

February 2, 1918

Syllabus by the Court.

If a person, in one county, is intrusted by another with personal property, to be returned to the owner, and afterwards takes it to another county, and there embezzles it, he cannot be tried for the crime in the county where he received it unless he had conceived the intent of committing the crime when he received it.

Appeal from District Court, Bryan County; Jesse M. Hatchett, Judge.

Will Rogers was convicted of the crime of embezzlement, and appeals. Judgment reversed. Case dismissed.

Jones & McCasland, of Atoka, and R. M. Rainey, of Oklahoma City, for plaintiff in error.

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

MATSON J.

The plaintiff in error, Will Rogers, was convicted in the district court of Bryan county upon information filed against him in said county, charging him with the embezzlement of two mules, the property of one R. C. Freeny. He was sentenced to serve a term in the petitentiary of one year and one day.

Among other things, it is contended that the district court of Bryan county, as shown by the record of this case, did not have jurisdiction to try this offense. The question raised was presented to the lower court by a motion for the court to instruct the jury to return a verdict of not guilty, and also by requested instructions to the effect that although defendant was in possession of the mules in Bryan county that fact is not sufficient to prove embezzlement, unless it is also shown that there was a willful and felonious intent to appropriate the mules in said Bryan county to the use and benefit of said Rogers, and without the consent of said Freeny. The court refused to instruct the jury to acquit, and also refused to give several requested instructions along the line above indicated. We have carefully examined the evidence in this case, and have reached the conclusion from the testimony of the prosecuting witness R. C. Freeny, that the district court of Bryan county did not have jurisdiction to try this offense.

The possession of the mules was obtained in Bryan county. Freeny let Rogers have a pair of mules to use during the crop season, but for some reason or other Rogers did not make a crop with these mules, of which fact Freeny was aware, and afterwards told Freeny that he wanted to use the mules for the purpose of peddling some goods from house to house, which was satisfactory to Freeny. Freeny testified that all he desired was that Rogers break said mules and return them to him. He was asked on cross-examination if Rogers had authority to take the mules where he wanted to so he broke them to work, and Freeny answered that it made no difference. The evidence shows that Rogers took the mules into the adjoining county of Atoka, and it was there that he converted same to his own use. There is not a line of testimony to the effect that he formed any intention to convert or embezzle the mules while in Bryan county. So far as the record shows, there was no criminal intent formed to convert the mules in Bryan county by Rogers-no evidence is in the record to show that any such intent existed, and it clearly appears from the testimony of the prosecuting witness that so far as he was concerned it was perfectly all right for Rogers to take the mules into Atoka county, provided he broke them and returned them to him after they were broken to work. There is nothing in the record to dispute the testimony of the prosecuting witness. We are convinced that he told the truth about the transaction, but upon his own statement, the venue of this action lay in Atoka county.

To sustain the jurisdiction in Bryan county, the state relies upon the following statute:

Sec. 5616, R. L. 1910: "When property taken in one county, by burglary, robbery, larceny, or embezzlement, has been brought into another, the jurisdiction of the offense is in either county. But if, before the beginning of the trial of the defendant in the latter, he be indicted or information be filed against him, in the former county, the sheriff of the latter must, upon demand, deliver him to the sheriff of the former county, upon being served with a certified copy of the indictment or information, and upon a receipt indorsed thereon by the sheriff of the former county, of the delivery of the body of the defendant, and is, on filing the copy of the indictment and the receipt, exonerated from all liability in respect to the custody of the defendant."

It will be noted that the wording of this statute requires that "property taken in one county by embezzlement," etc., be brought into another county,...