State v. Bennett

• Decision Date: 11 October 1945
• Docket Number: A-10509.
• Citation: State v. Bennett, 162 P.2d 581, 81 Okla. Crim. 206 (Okla. Crim. App. 1945)
• Parties: STATE v. BENNETT et al.
• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

162 P.2d 581

81 Okla.Crim. 206

STATE v. BENNETT et al.

No. A-10509.

Court of Criminal Appeals of Oklahoma

Oct. 11, 1945

Appeal from District Court, Tulsa County; Oras A. Shaw, Judge.

Henry G. Bennett and others were indicted for conspiracy.Separate motions of certain defendants to quash the indictment were granted, and the State appeals.

Affirmed.

See also, Okl.Cr.App., 162 P.2d 561.

Syllabus by the Court.

1.Where trial court hears evidence and passes upon a motion sustaining or overruling the same, the judgment of the trial court thereon is a discretionary one and will not be disturbed on appeal in the absence of an assignment and a clear showing that the trial court in either overruling or sustaining the motion clearly abused its judicial discretion.

2.A conspiracy is a combination of two or more persons by some concerted action to accomplish some criminal or unlawful purpose, or to accomplish some purpose not in itself criminal by criminal or unlawful means.

3.Where the offense charged is an unlawful conspiracy in violation of the Statute, 21 O.S.1941 § 424, which prescribes as an essential element of the offense, an overt act by one or more of the parties to effect the object of the conspiracy, the overt act must be one which is a step in the execution of the conspiracy.

4.After the object of a conspiracy has been attained, the subsequent sale of commodities involved in the alleged conspiracy is not an overt act sufficient to extend the statute of limitations or vest local jurisdiction.

5.Where indictment charges conspiracy to defraud the State is connection with certain textbook adoptions in 1937, and proof before Grand Jury showed that new adoptions were made by textbook commission in 1939 pursuant to legislative enactment, sales of textbooks thereafter made were under contract pursuant to the adoptions made in 1939 or by authority of the State, and prosecution commenced in December, 1943, based on sales of textbooks pursuant to 1937 adoptions is barred by three year Statute of Limitations.

6.By specific statutory enactment, it is duty of grand jury to investigate law violations in its own county, and it has no duty to investigate transactions occurring wholly outside its county not connected with law violations in its county or triable therein.22 O.S.1941 §§ 311, 324, 331.

7.Grand Jury impaneled in T County has no jurisdiction to investigate crime of conspiracy to defraud State, where the alleged conspiracy and all overt acts committed in effecting the object of the conspiracy were committed in O County.

Randell S. Cobb, Atty. Gen., E. J. Broaddus Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., and M. S Simms and John L. Ward, Jr., Asst. Co. Attys., all of Tulsa for plaintiff in error.

Swank & Swank, John Monk, and W. Hendrix Wolf, all of Stillwater, F. A. Rittenhouse and Blakeney & Blakeney, all of Oklahoma City, Welch & Welch, of Madill, and Ownby & Warren, of Tulsa, for Henry G. Bennett, defendant in error.

Hudson & Hudson, of Tulsa, for Willis L. Smith, defendant in error.

Harley Ivy, of Waurika, for J. T. Daniel, defendant in error.

Busby, Harrell & Trice, of Ada, and Chas. E. McPherren, of Oklahoma City, for A. L. Crable, defendant in error.

F. A. Rittenhouse, or Oklahoma City, for Ed Morrison, defendant in error.

LOONEY Special Judge.

This case comes here on appeal by the State from an order and judgment of the District Court of Tulsa County sustaining separate motions of defendants to quash and set aside an indictment for conspiracy.

The indictment herein is an outgrowth of certain textbook adoptions by the Oklahoma Textbook Commission in the year 1937.Among those indicted were Ed Morrison, O. E. Shaw, J. E. Perry, members of the Textbook Commission, Willis Smith, owner and manager of the School Book Depository, J. T. Daniel, Speaker of the Oklahoma House of Representatives for the 1937 Legislative Session, A. L. Crable, Superintendent of Public Instruction and Secretary of the Textbook Commission, Henry G. Bennett, President of Oklahoma A & M College, who was co-author of one of the textbooks that were adopted, and Howard B. Drake, an alleged patronage dispenser of the then Governor of the State of Oklahoma.

The indictment charges among other things that in the year 1937defendants conspired to control the adoption of textbooks by the Oklahoma Textbook Commission; to obtain the adoption of certain school books at excessive prices; to secure the execution of contracts for the publication of such books in the State of Oklahoma for the purpose of repaying to certain school book companies moneys which said companies had advanced to defendants Drake and Daniel prior to the proposed adoption.

The learned trial judge at the conclusion of a lengthy hearing of the evidence offered by both the State and defendants on the motion to quash the indictment correctly summarized the indictment and evidence as follows:

'The Court analyzes this indictment by saying that according to the indictment there were five objects and purposes of the conspiracy.First, that they would control the adoption of textbooks by the Oklahoma Textbook Commission; Second, that they would destroy competition in two fields, first, in the securing of textbooks, and second, in the making of contracts; the third purpose, that they would demand and receive large sums of money in consideration of the adoption of textbooks and the securing of the contracts; fourth, that they would defraud the State of Oklahoma thereby of large sums of money in securing and consummating the purchase by the State on the order of the Superintendent of Public Instruction, through the State Welfare Department, of large quantities of books; fifth, that the contracts thus secured would provide for a purchase price of the textbooks in an excessive amount, in order to reimburse the co-conspirators for large sums of money expended in connection with the alleged conspiracy; and, finally, as a result of these five purposes, the school children and school patrons of the State of Oklahoma, including the County of Tulsa and all other counties of the State, would thereby be cheated and defrauded, the last being a result alleged in the indictment, rather than a purpose for which the alleged conspiracy was formed.

'Now, then, there are two defendants in this conspiracy case, J. E. Perry and O. E. Shaw, who did not file their motions to quash.We will not discuss this case in so far as those two defendants are concerned, because they are not now involved in these proceedings.They filed demurrers instead of motions to quash and those demurrers have not as yet been heard.

'First, with reference to the defendantEd Morrison, was there evidence in this case sufficient for the grand jury to return an indictment against Ed Morrison as a member of an alleged band of conspirators?

'He was a member of the Textbook Commission who voted, according to the evidence before the grand jury, for the adoption of textbooks and the granting of contracts, when he knew there had been graft and corruption in connection therewith.

'There was no evidence before the grand jury which showed that any of this money came into his hands, but certainly on a motion to quash the indictment, this Court is not going to absolve a defendant from blame when he, occupying a position of public trust, approved, by his acts and his deeds, transactions which he himself had been advised and knows have been contaminated by fraud and graft.

'There was evidence in this case sufficient to indict the defendantEd Morrison, and when we consider the evidence in so far as Daniel, Drake and Crable are concerned, there can be no question but that the grand jury had ample evidence to say by their indictment that these men were the arch conspirators of an unlawful and vicious scheme, contaminated from top to bottom by graft and corruption.By their own testimony before the grand jury, this situation was disclosed.

'Drake and Daniel testified with regard to the receipt as pure political graft, thousands upon thousands of dollars, and Crable, Superintendent of Public Instruction for the State of Oklahoma, under the evidence before the grand jury, was the man who activated the program and he was the man without whom this situation could not have existed, had he not given it his complete support and been a part thereof.'

'I hesitate to go further in the analysis of the evidence regarding that feature of the case, because it is so rank and so devoid of propriety that the grand jury in their indictment, and under the evidence before them was amply justified in finding this alleged unlawful conspiracy to have existed, and it indicates a complete unfitness and lack of character on the part of these individuals.

'As to the defendant, Henry G. Bennett, the evidence in this case is not sufficient, and was not sufficient to warrant the grand jury to return an indictment against him.I pause here to analyze, briefly, the alleged damaging evidence in this case.It has to do with the revision of the arithmetic.The evidence in this case--I will put it this way--there was no evidence in this case before the grand jury that the defendant, Bennett, revised the textbook, or took any active part therein.The contract between Bennett and the school book company, which was introduced in evidence before the grand jury, discloses that the question of revision of these books, as to whether they should be revised, or not, was in the hands of the publishing company.I have been unable to find any evidence in this case which shows that Henry G. Bennett took any active part in the conspiracy.I have been unable to find any evidence before the grand jury from which it can be reasonably inferred that he...