State v. Chapin

• Citation: 144 P. 1187,74 Or. 346
• Parties: STATE v. CHAPIN ET AL.
• Decision Date: 22 December 1914
• Court: Oregon Supreme Court

144 P. 1187

74 Or. 346

STATE v. CHAPIN ET AL.

Supreme Court of Oregon

December 22, 1914

Department 2.

Appeal from Circuit Court, Multnomah County; John P. Kavanaugh Judge.

W. H Chapin was convicted of larceny as bailee, and he appeals. Affirmed.

A. King Wilson and Geo. Rossman, both of Portland (Wilson, Neal & Rossman and J. J. Fitzgerald, all of Portland, on the brief), for appellant. A. A. Murphy and John A. Collier, both of Portland (Walter H. Evans, Robert Maguire, and John A. Collier, all of Portland, on the brief) for the State.

BEAN J.

The defendants, W. H. Chapin and E. C. Herlow, were charged by the grand jury of Multnomah county, Or., by an indictment returned on the 28th day of February, 1914, with the crime of larceny by bailee of $3,500, lawful money of the United States, the personal property of William Grace and Marion Anne Grace. On May 11, 1914, the defendants entered their pleas of not guilty. The March and April terms of court having intervened, in May defendant W. H. Chapin was tried separately, at his request. The jury, being unable to agree upon a verdict, were discharged, and on the 3d day of June, 1914, defendant Chapin was again brought to trial. The jury returned a verdict of guilty as charged. From an ensuing judgment the defendant appeals.

Defendant's counsel makes the contention that under section 1701, L. O. L., "the court lost jurisdiction to try the case." That section is as follows:

"If a defendant indicted for a crime, whose trial has not been postponed upon his application or by his consent, be not brought to trial at the next term of the court in which the indictment is triable, after it is found, the court must order the indictment to be dismissed, unless good cause to the contrary be shown."

Section 1606 of the same laws provides that an appeal may be taken from an order refusing to dismiss an indictment as provided in the section quoted. According to the provisions of these sections of the Code, if the cause was not continued upon proper application, or unless good cause therefor was shown, it was incumbent upon the defendant to make a request to the court for such dismissal and obtain an order granting or refusing the same. No motion of that kind was made before the trial in this case, nor was any objection interposed to the trial of the cause on that ground. Under the circumstances the defendant waived the right, if any there was, to make such a motion. People v. Hawkins, 127 Cal. 372, 59 P. 697. The court is authorized by section 1513, L. O. L., to postpone the trial of a criminal action to another day in the same term, or to another term, upon sufficient cause shown by the affidavit of the defendant or the statement of the district attorney. State v. Breaw, 45 Or. 586, 78 P. 896; In re Von Klein, 67 Or. 298, 135 P. 870. In the absence of any showing as to what proceedings were had for a continuance, after a trial of the cause without any objection of that kind, it will be presumed that a proper showing was made, or else the defendant consented to such postponement. Error will not be presumed. State v. Van Waters, 36 Wash. 358, 78 P. 897; People v. Hawkins, supra; Johnson v. State, 42 Ohio St. 207. Section 10, art. 1, of the Constitution declares that justice shall be administered without delay, and the statute, no doubt, was enacted with that end in view; but we do not think it was intended that the defendant should neglect to invoke the privilege granted or avail himself of a trial upon an indictment, and then upon an appeal from a conviction invoke the statute and have the judgment annulled, without calling the attention of the trial court to the matter before the trial of the cause and affording the state an opportunity to show good cause for the delay, or that the same was in truth "upon the application or by the consent" of the defendant. The defendant's remedy, if he was, at any time, entitled to a dismissal, was to apply to the lower court for the same at the proper time, and if such request was deemed to be improperly refused, he had the right of appeal. It was held by this court in the case In re Von Klein, supra, that mandamus would not lie to compel the dismissal of an indictment for delay in bringing the accused to trial, and that an appeal from an order refusing to dismiss an indictment was the proper remedy.

The charging part of the indictment is as follows:

"The said W. H. Chapin and E. C. Herlow, on the 11th day of November, A. D. 1912, in the county of Multnomah and state of Oregon, then and there being then and there the bailee of $3,500, lawful money of the United States of America, a more particular description of which is to the grand jury unknown, all being the personal property of William Grace and Marion Anne Grace, did then and there unlawfully and feloniously fail, neglect and refuse to deliver, keep, and account for the said personal property according to the nature of their trust, contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Oregon."

It is urged on behalf of defendant Chapin that the indictment does not state facts sufficient to constitute a crime. The general rule is that when the statute sets out what shall constitute the offense, it is sufficient for the indictment to charge the offense substantially in the language of the statute. If the elements of the crime are set forth in the indictment sufficiently to inform the defendant of the charge he is called upon to answer, that is all that is required. State v. Ross, 55 Or. 450, 104 P. 596, 106 P. 1022, 42 L. R. A. (N. S.) 601, 613; State v. Dougherty, 4 Or. 200, 205. The indictment in the case under consideration contains a plain, concise statement of acts and circumstances which identify the offense and show an infraction of the statute by the defendants. This section of the laws of the state declares that the acts described in the indictment constitute larceny.

It is urged by defendant's counsel that there was a variance between the proof and the allegation of the indictment as to ownership. The evidence in this respect tended to show that the money obtained by the defendants from the Graces was in the United States National Bank of Portland, and that the same was evidenced by a certificate of deposit of $3,580 in the name of William Grace, and that on account of the poor health of Mr. Grace Mrs. Grace transacted the principal part of the negotiations with the defendants. It was mainly by her authority that the funds were turned over to the defendants to be invested. Mrs. Grace had a special ownership in the money. Mr. Grace indorsed the certificate, and the defendants returned $80 to the Graces and recognized Mrs. Grace's authority in the matter. Section 1444, L. O. L., reads thus:

"When a crime 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."

Under this section there can be no question but that the crime is described with sufficient certainty to identify the act charged to have been committed, and the conviction would be a complete bar to another prosecution for the offense. There was no fatal variance. State v. Fogarty, 105 Iowa, 32, 74 N.W. 754; State v. Congrove, 109 Iowa, 66, 80 N.W. 227; People v. Nunley, 142 Cal. 105, 75 P. 676. California has a statute the same as section 1444, L. O. L. People v. Leong Quong, 60 Cal. 107, was a case involving the larceny of a horse alleged to belong to one Sang Hop. At the trial the owner testified that Sang Hop was his business name, and his personal name was Yup Chin. It was there said:

"The name of the owner of stolen property is not a material part of the offense charged. It is only required to identify the transaction, so that the defendant, by proper plea, may protect himself against another prosecution for the same offense."

In People v. Ribolsi, 89 Cal. 492, 26 P. 1082, the information charged that the stolen goods were the "personal property of the estate of George H. Tay and Oscar Backus, copartners, * * * under the firm name and style of Geo. H. Tay & Co." It appeared that one of the partners was dead, and that his estate was represented by executors who were the legal owners of the property, and a fatal variance was claimed by reason of these facts. It was held under section 956 that the description left no doubt as to the identity of the act charged to have been committed, and was sufficient. It was said in State v. Nelson, 11 Nev. 339:

"The only thing essential in either case [larceny or robbery] seems to be an averment which shall show conclusively that the property does not belong to defendant. And courts have shown a disposition to allow the proof of any sort of interest in or right to the custody of the property to be sufficient proof of ownership."

In the present case Mrs. Grace had ample authority at all times to receive the money from the defendants. She had the right to the custody thereof. If they had accounted to her according to the nature of their trust, it would have been a full compliance with the law. There was nothing in the allegation of ownership of the funds to mislead the defendants or render it doubtful as to what was the charge against them.

It is claimed that the evidence does not describe the property as alleged, for the reason that the receipt of the certificate of deposit was not a bailment of money. If the proof stopped there, the case would be difficult. The evidence further tended to show that the defendants received the $3,580 from the bank and turned over the $80 to the Graces. People v. Meseros, 16 Cal.App. 277, 116 P. 679, cited...