State v. Owen

• Decision Date: 23 March 1926
• Citation: 119 Or. 15,244 P. 516
• Parties: STATE v. OWEN.
• Court: Oregon Supreme Court

244 P. 516

119 Or. 15

STATE v. OWEN.

Supreme Court of Oregon

March 23, 1926

In Bank.

Appeal from Circuit Court, Jackson County; F. M. Calkins, Judge.

C. H Owen was convicted of aiding in willful misapplication of bank funds, and he appeals. Affirmed.

A. E. Reames, of Medford (Reames & Reames, of Medford, on the brief), for appellant.

Clarence D. Phillips and Newton C. Chaney, both of Medford (Rawles Moore, of Medford, on the brief), for the State.

BURNETT J.

The defendant was indicted by the grand jury of Jackson county Or., under subdivision (c) of section 6187, Oregon Laws, for aiding and abetting the cashier of the Bank of Jacksonville in that county in willfully misapplying, to the advantage of the defendant, certain moneys, funds, credits, and property of the bank of the amount and value of $100. After stating in the indictment what the cashier did, which, in substance, was that he paid a check for that amount drawn on the bank by the defendant, knowing that the latter had no moneys, funds credits, or property in the bank applicable to the payment of the check, and was not entitled to draw from the bank $100 or any portion thereof, the indictment charged:

"That said C. H. Owen, on the 3d day of April, 1919, in the county of Jackson, state of Oregon, then and there being, did then and there wrongfully, unlawfully, feloniously, and willfully, and with intent to injure said bank, aid, abet, incite, counsel, and procure the said W. H. Johnson, officer and cashier as aforesaid, to convert and willfully misapply the moneys, funds, credits, and property of said bank in manner and form as aforesaid, contrary to the statutes in such cases made and provided," etc.

The defendant demurred to the indictment on the ground that it did not state facts sufficient to constitute a crime, but the demurrer was overruled. At the trial, on a plea of not guilty, he likewise objected on the same ground to the introduction of any testimony in support of the indictment, but this objection was disregarded. He was convicted and sentenced to imprisonment in the penitentiary "for a period not to exceed 3 years"; hence this appeal.

The clause of the statute under which the indictment is drawn reads thus:

"(c) Embezzlement. Every owner, officer, director or employee of any bank who embezzles, abstracts or willfully misapplies any of the money, funds, credits, assets or property of the bank, whether owned by such bank or held in trust, or who without authority of the board of directors of such bank issues or puts forth any certificate of deposit, draws any order, draft or bill of exchange, makes any acceptance, assigns any note, bond, draft, bill, bill of exchange, mortgage, judgment or decree, or who makes any false entry in the books or statements of the bank with intent in either case to injure or defraud the bank or deceive any officer of such bank or any other person appointed to examine the affairs of said bank, or any person who with like intent aids or abets any owner, officer, director or employee of any bank in the violation of this section, upon conviction thereof, shall be imprisoned in the state penitentiary for not less than one year or more than twenty years, at the discretion of the court."

The indictment follows the words of the statute, sufficiently informs the defendant of the nature of the crime charged against him, and is a valid accusation within the meaning of State v. Kubli, 244 P. 512, this day decided, sustaining a similar pleading.

The testimony shows that on March 25, 1919, the defendant was in San Francisco, Cal., and there drew the check in question, addressed to the Bank of Jacksonville, Jacksonville, Or., requesting it to pay to the order of "Cash" $100. He negotiated the check in San Francisco by cashing it at the Hotel St. Francis in that city. In due course of business it arrived in Oregon, where it was first paid in money at a bank in Portland, Multnomah county, Or., out of funds on deposit there to the credit of the Jacksonville bank. Later, however, it was forwarded to the latter bank, and the cashier took it up by forwarding a draft to the Portland bank covering the check.

The defendant, Owen, never returned to Oregon after drawing the check in question, but went to live in the state of Utah. From there he was extradited on the request of the Governor of Oregon, was surrendered by the Utah authorities, and brought into this state, and tried as stated. Section 1381, Oregon Laws, reads thus:

"When the commission of a crime commenced outside this state is consummated within its boundaries, the defendant is liable to punishment therefor in this state if he be afterwards found therein, though he were out of the state at the time of the commission of the crime charged, provided he consummated it in this state, through the intervention of an innocent or guilty agent, or by any means proceeding directly from himself; and in such case, the action therefor may be commenced and tried in the county in which the offense is consummated."

We recollect that, according to the indictment, the cashier in charge of the bank in Jacksonville was a principal, and it is alleged that he misapplied the funds of the bank to the payment of this check. It was at the bank in Jackson county that the crime was consummated. When the check was presented there, and the funds applied, the transaction was at an end, and was there consummated. It is true that the part of the defendant, Owen, in the transaction was commenced in the state of California by there drawing the check. It is competent for the legislative power of the state to protect its citizens against such acts and to make it a crime for one out of the state to aid and abet another in the state in the commission of the offense thus created. As said in Commonwealth v. Macloon, 101 Mass. 1, 100 Am. Dec. 89, speaking of a similar statute:

"This statute is founded upon the general power of the Legislature, except so far as restrained by the Constitutions of the commonwealth and of the United States, to declare any willful or negligent act which causes an injury to person or property within its territory to be a crime, and to provide for the punishment of the offender upon being apprehended within its jurisdiction."

In Simpson v. State, 17 S.E. 984, 92 Ga. 41, 22 L. R. A. 248, 44 Am. St. Rep. 80, it is held that a criminal act, begun in one state and completed in another, renders the person who does the act liable to indictment in the latter state. It is likewise said in State v. Hall, 19 S.E. 602, 114 N.C. 909, 28 L. R. A. 59, 41 Am. St. Rep. 822:

"The well-established theory of the law is that, where one puts in force an agency for the commission of crime, he in legal contemplation accompanies the same to the point where it becomes effectual. * * *"

In Commonwealth v. Pettes, 114 Mass. 307, it was held that letters written by the defendant in another state, for the purpose of assisting in passing a forged check, but received in the county of Suffolk, in Massachusetts, and having effect there, constituted acts which were in intendment of law committed in the county of Suffolk, and which might be so alleged in the indictment. Section 1381, Oregon Laws, is a statutory declaration of the precepts announced in these precedents, and is a valid exercise of the lawmaking power.

The defendant complains that the circuit court of Jackson county had no authority to bring him to trial, because he had not fled from justice within the meaning of section 2 of article 4 of the national Constitution, having never been in Oregon since long prior to the drawing of the check upon which the indictment is based. He contends that, having been extradited from Utah and brought to Oregon by force, he was not "found" in the latter state within the scope of section 1381, supra. The courts of the state having actual custody of a defendant for trial on a charge of violating its criminal laws will not concern themselves in the trial of such charges about how he happened to be within the boundaries of the state. In Pettibone v. Nichols, 27 S.Ct. 111, 203 U.S. 192, 51 L.Ed. 148, 7 Ann. Cas. 1047, the defendants were accused of the crime of murder in Idaho. They were residents of Colorado, and had not been in Idaho at any time between the date of their extradition and long before the commission of the crime. The Governor of Idaho demanded of the Governor of Colorado that he deliver them to the agents of Idaho, and they were surrendered accordingly, and rushed by railroad into Idaho, without having any opportunity in Colorado to test the legality of the extradition by habeas corpus or otherwise. The Supreme Court of the United States, where the matter was finally taken on habeas corpus proceedings begun in Idaho, said:

"It is settled that a party is not excused from answering to the state whose laws he has violated because violence has been done him in bringing him within the state."

It was held also that the result is the same if the transportation is accomplished under the forms of law. In the case of In re Johnson, 17 S.Ct. 735, 167 U.S. 120, 42 L.Ed. 103, it was said:

"The law will not permit a person to be kidnapped or decoyed within the jurisdiction for the purpose of being compelled to answer to a mere private claim, but in criminal cases the interests of the public override that which is, after all, a mere privilege from arrest."

In Mahon v. Justice, 8 S.Ct. 1204, 127 U.S. 700, 32 L.Ed. 283, Mahon, being under indictment in Kentucky, was abducted from West Virginia by a mob of lawless persons and carried to Kentucky. In the latter state he was arrested by virtue of its regular criminal process for trial. The United States Supreme Court, in an opinion by Mr. Justice Field said:...