State v. Rule
| Decision Date | 19 December 1914 |
| Docket Number | A-2274. |
| Citation | 144 P. 807,11 Okla.Crim. 237,1914 OK CR 153 |
| Parties | STATE v. RULE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
As a general rule, evidence of other offenses, though of the same nature, is not admissible for the purpose of showing that the defendant is guilty of the particular offense charged. To this rule, however, there are well-settled exceptions. Those applicable to the question presented on the record in this case are as follows:
(a) Evidence of other offenses similar to that charged is relevant and admissible, when it tends to prove some element of the one charged, as when it shows or tends to show guilty knowledge or intent in the commission of the offense charged.
(b) Evidence that tends directly to prove the defendant's guilt is not rendered inadmissible because it proves or tends to prove him guilty of another and distinct offense.
(c) Evidence of a different offense from the one charged is admissible when both offenses are so closely linked or connected as to form a part of the res gestæ.
(d) Evidence of other offenses is competent to prove the specific offense charged when it tends to establish a systematic scheme or plan embracing the commission of two or more offenses so related to each other that proof of one tends to establish the other, or to connect the defendant with the commission of the offense charged.
(e) In support of an information, charging the filing of a false claim with intent to defraud the state, and that by such false pretense the defendant did obtain from the State Auditor a warrant for the amount of the claim, evidence is admissible of other instances when he did the same thing as tending to show guilty knowledge or intent, and that the offense charged was a part of a plan or scheme to cheat and defraud the state.
Where evidence is offered tending to prove that the defendant has committed an offense other than that for which he is on trial, good practice requires that the prosecuting attorney should state the purpose for which the evidence is offered and, if it is admissible for that purpose, the trial court should instruct the jury as to the purpose for which they may consider it.
On the trial of an information in two counts, the first charging the larceny of a state warrant, the second charging the filing of a false claim with intent to defraud the state, and that by such false pretense the defendant did obtain from the State Auditor said warrant, the proof showed that defendant secured a contract to do legislative printing, and employed the W. Printing Company to do the said printing, that said company delivered to defendant claims against the state for the amount of printing delivered, that the warrant in question was secured by the defendant upon one of these claims, one item of which had been raised from 282 House Journal pages at $1.10 a page to 710 pages at $1.10 a page, it also appeared that three other similar informations were pending against defendant at the time of the trial, the president of the W P. Co. testified that the claims against the state were made out from the book of the W. P. Co.; that the entries therein were made in the usual course of business by witness and by the secretary and by an employé; that he knows the entries were correct when made; that he had no present independent recollection of the entries in the books or in the claims delivered to the defendant. The secretary testified that when the entries were made they were correct; that the entries relating to the claim upon which the warrant in question was obtained were made by witness. Another witness testified that some of the entries were made by him as an employé of the W P. Co., and the entries so made were correct; that he assisted the president and secretary of the company to count the pages of printing done, and knows that the entries were correct when made. During the examination of each witness the book with the entries therein was offered in evidence by the state. To the use of the book in evidence the defendant objected. The court sustained the objections and excluded the evidence offered. The president of the W. P. Co. was recalled and stated that without the book he could not state the facts stated therein. He was then asked to refer to the book to refresh his memory and state the amount of legislative printing done, which, on the defendant's objection he was not permitted by the court to do. The state reserved objections to the rulings of the court. Held:
(a) That said book, with the entries therein, was admissible, not only as independent evidence of facts forming a part of the res gestæ, but also as declarations or admissions made by the defendant against his interest; and further held that, on the testimony of witnesses that the entries therein were made in the usual course of business, and known by them to have been correct when made, said book with the entries therein was competent and admissible as evidence of the facts therein stated.
(b) Held, further, that, whether the witness retained a present independent recollection of the facts therein stated or not, the witness had the right to refresh his memory by consulting on the witness stand the entries in said book, and the same was also admissible as a means of verification or confirmation of what the witness stated from memory.
Appeal from District Court, Oklahoma County; John J. Carney, Judge.
J. M. Rule was acquitted of grand larceny and obtaining a warrant under false pretenses, and the State appeals on questions reserved. Questions answered in opinion.
In a prosecution for larceny of a state warrant and for obtaining a state warrant by false representations as to the amount of printing done for the state, held that, though a witness retained no independent recollection of the amount of printing done, he could refresh his memory by consulting entries in defendant's books on the witness stand.
This case comes to this court under the third subdivision of section 5990, Rev. Laws, upon exceptions taken by the prosecuting attorney to certain rulings of the trial court, excluding evidence offered by the state.
The facts of the case, as shown by the record, are as follows: On the 5th day of December, 1913, the county attorney of Oklahoma county filed an information in the district court of said county, containing two counts. In the first count the defendant was charged with the crime of grand larceny committed in taking by fraud and stealth a certain state warrant, described in the information, payable in the sum of $1,310.20. In the second count the defendant was charged with the crime of obtaining the said warrant under false pretenses. On January 15, 1914, the case proceeded to trial.
It appears that on the 13th day of January, 1911, the Third Legislature of the state of Oklahoma was in session, and, by resolutions of the House and Senate, the standing committees on legislative printing were instructed to let a contract for the legislative printing of the 1911 session of the Legislature. Bids were received for the printing, among which was the bid of the defendant, J. M. Rule. It was determined by the committees to award the contract to the defendant, and, agreeably to the laws and regulations prevailing in such matters, the Board of Public Affairs of the state of Oklahoma was directed to enter into a written contract with the defendant for the legislative printing, and on said 13th day of January, 1911, a contract was entered into between the Board of Public Affairs and the defendant; the contract being prepared in two parts, or separate contracts, one for the House printing and one for the Senate printing, at certain prices therein named. The defendant employed the Warden Printing Company, of Oklahoma City, to do the printing at prices agreed upon by a verbal contract entered into between the defendant and the Warden Printing Company, and they entered upon the discharge of this contract and performed certain services for the defendant.
Payments were not made at any stated time, but from time to time, as the work progressed, the company rendered its bills showing the amount of printing delivered to the Legislature since the last previous statement. For the purpose of having its bills presented in regular form, the Warden Company obtained from the Board of Public Affairs the blanks which are prescribed for use in presenting bills for materials and supplies to the state. In each instance, when a bill was made out, it was made by the Warden Printing Company on these blank vouchers and was made in triplicate. Each voucher showed the number of pages of each separate class of printing, the contract price per page, and the aggregate amount of the items in each bill; the Warden Company retaining one of the copies for its use in its settlement with defendant under his contract with the company, and delivering to the defendant the remaining two copies of the vouchers, which, after being properly certified and sworn to by him according to the regulations of the State Auditor's office and of the office of the Board of Public Affairs, were to be filed by him, one copy with the Board of Public Affairs, and the other copy with the State Auditor. The warrant in question was issued upon one of the vouchers so filed, and, upon comparison of the vouchers filed with the Board of Public Affairs and the State Auditor with the copy retained by the Warden Company, it was ascertained that, after delivery of the two triplicates to the defendant, the items purporting to show the number of pages of House Journals printed as made by the Warden Company and delivered to the defendant had been raised from 282 pages at $1.10 page to 710 at $1.10 page; that the aggregate amount for printing the said...
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