Sherfield v. State

• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Writing for the Court: POWELL; BRETT, P. J., and JONES
• Citation: Sherfield v. State, 252 P.2d 165, 96 Okla.Crim. 223 (Okla. Crim. App. 1952)
• Decision Date: 31 December 1952
• Docket Number: No. A-11701,A-11701
• Parties: SHERFIELD v. STATE.

Page 165

252 P.2d 165

96 Okla.Crim. 223

SHERFIELD v. STATE.

No. A-11701.

Criminal Court of Appeals of Oklahoma.

Dec. 31, 1952.

Syllabus by the Court.

1. The general larceny statute of this State, Tit. 21 O.S.1951 § 1701, defines larceny as follows: 'Larceny is the taking of personal property accomplished by fraud or stealth, and with intent to deprive another thereof.' Tit. 21 O.S.1951 § 1716 deals with the larceny of domestic animals, and provides: 'Any person in this State who shall steal any horse * * * cow, * * *, shall be guilty of a felony and upon conviction shall be punished by confinement in the State Penitentiary for a term of not less than three years, nor more than ten years.'

2. These statutes create separate and distinct offenses. To support a conviction under the statute on the larceny of domestic animals, it is necessary to prove a felonious intent on the part of the taker to deprive the owner thereof, and to convert the same to his (the taker's) own use, which specific proof is not necessary under the general larceny statute.

3. The actual status of the legal title to stolen property is no concern of the party charged with the theft thereof. So far as he is concerned, one may be taken as the owner who is in possession of the property and whose possession was unlawfully disturbed by the taking.

4. One in possession of personal property has such title thereto as would justify a charge of larceny against another who might unlawfully steal the same.

5. The word 'steal', which is used in the statute on larceny of domestic animals is not defined by statute and therefore its meaning will be determined by the common law.

6. When the word 'steal' is used it means to take and carry away the property of another, with the felonious intent to deprive the owner thereof, and to appropriate the same to one's own use.

7. Tit. 22 O.S.1951 § 406 provides: 'When an offense involves the commission of, or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material.' Held, under this statute the name of the owner is not material if the proof discloses the essential facts necessary to constitute the larceny charged, including the possession of the property by the alleged owner.

8. An information may be amended in matters either of form or substance when it can be done without prejudice to the substantial rights of the accused, and where the amendment made is not such as to prejudice the substantial rights of the accused, he will not be entitled to a new preliminary examination as basis for trial on such information as amended.

Robert H. Warren, Hugo, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Sam H. Lattimire, Asst. Atty. Gen., for defendant in error.

POWELL, Judge.

Elbert Sherfield, defendant (plaintiff in error), was charged in the district court of Choctaw County with the crime of larceny of livestock; was tried before a jury, convicted, and his punishment fixed at five years in the State Penitentiary. Appeal has been perfected to this court by transcript.

The transcript discloses that prior to the conviction appealed from, defendant had been convicted of the charge in question in the same case on December 5, 1950, with punishment fixed at three years in the State Penitentiary, but on hearing of motion for new trial filed by the defendant, the court had granted a new trial upon the ground that the information upon which the case had been tried did not sufficiently allege the offense. The court permitted the county attorney to amend the information instanter by interlineation and overruled defendant's motion to dismiss on the ground that he had not had a preliminary hearing upon said information as amended. The defendant assigns as reversible error the fact that he did not have a preliminary hearing on such information as amended.

It is argued on behalf of defendant that the court did not have further jurisdiction. Counsel states:

'We do not think it necessary to cite authorities. However, the court held in an early case, Anderson v. State, 21 Okl.Cr. at page 177, 204 P. 132, in substance that when a demurrer is sustained to an information and order is made to be further proceeded with by information, in such case it is necessary to accord accused another examining trial. When this defendant was granted a new trial it amounted to exactly the same thing as the demurrer to the information having been sustained when the court granted the new trial for the reason the original information did not state an offense against the defendant against the laws of Oklahoma, especially as to the offense sought to be charged.'

We shall set out the charging part of the original information and show the interlined amendments by italics contained in parenthesis, as follows:

'* * * that Elbert Sherfield did in Choctaw County, State of Oklahoma, on or about the 14 day of February, 1950, and anterior to the presentment hereof, commit the crime of larceny of livestock, in the manner and form as follows, to-wit: that he, the said defendant, then and there being, did then and there wilfully, wrongfully, unlawfully, take, steal and carry away from the pasture of Ernest Steen, in Choctaw County, Oklahoma, a heifer calf about ten months old, (the personal property of the said Ernest Steen) without the knowledge or consent of the said Ernest Steen, (and against his will) with the wilful, wrongful, unlawful and felonious intent on the part of the defendant, to cheat, and defraud, (and deprive) said Ernest Steen (the true owner thereof) and convert the same to his, the defendant's, own use and benefit, contrary to the form of the statutes * * *' etc.

The record discloses that the defendant had a preliminary hearing on the charge for which tried, before an examining magistrate and that thereafter an information was filed in the district court of Choctaw County, as shown above, less the amendments. The record does not show that a demurrer was lodged against said information, or that any complaint was made as to the sufficiency of the same. Ordinarily, an information which is not fatal on jurisdictional grounds is sufficient upon which to base a judgment of conviction, where no question as to its sufficiency is raised until after the verdict of the jury. Flowers v. State, 8 Okl.Cr. 503, 129 P. 81; Monahan v. State, Okl.Cr.App., 243 P.2d 744, and a long list of cases cited. Nevertheless, the court on motion for new trial did consider the information insufficient by reason of failure to allege the matters permitted to be supplied by interlineation as shown and quoted above. And in view of the action of the trial court, if these were material changes and that had the effect of injecting new issues into the case, and such new matter was required in order to charge the crime set out in the applicable statute, Tit. 21 O.S.1951 § 1716, the defendant should have been granted a new preliminary hearing prior to the trial upon such information as amended.

The material portion of the above statutory provision reads:

'Any person in this State who shall steal any horse * * * cow * * * shall be guilty of a felony and upon conviction shall be punished by confinement in the State Penitentiary for a term of not less than three years, nor more than ten years * * *.'

Ordinarily it is sufficient to charge a crime substantially in the language of the statute. Reed v. Territory, 1 Okl.Cr. 481, 98 P. 583; Robinson v. State, 8 Okl.Cr. 667, 130 P. 121; Stone v. State, 80 Okl.Cr. 124, 157 P.2d 468; Douglas v. State, Okl.Cr.App., 225 P.2d 376.

It is the contention of the Attorney General that the interlineations made did not interpose any new issue. He argues:

'While the original information did not allege specifically that the stolen property was the personal property of Ernest Steen and that the larceny was with the intent to 'deprive' the owner, it did charge that the property was stolen and carried away from the pasture of Ernest Steen without his knowledge or consent and with the 'felonious' intent to cheat and defraud said Ernest Steen and convert the property to defendant's own use and benefit.'

Stealing must be construed by the common-law meaning, in that it has not been defined by statute. Crowell v. State, 6 Okl.Cr. 148, 117 P. 883; Hughes v. Territory, 8 Okl. 28, 56 P. 708. However, by provision of Tit. 21 O.S.1951 § 1716, the degrees of the crime are abolished, and the stealing of any of the animals named constitutes a felony without regard to number or value.

In Sneed v. State, 61 Okl.Cr. 96; 65 P.2d 1245, this court...