State v. Underwood

• Decision Date: 22 May 1920
• Docket Number: A-3407.
• Citation: State v. Underwood, 190 P. 281, 17 Okla. Crim. 443 (Okla. Crim. App. 1920)
• Parties: STATE v. UNDERWOOD.
• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

190 P. 281

17 Okla.Crim. 443

STATE v. UNDERWOOD.

No. A-3407.

Court of Criminal Appeals of Oklahoma

May 22, 1920

Syllabus by the Court.

An information charging the offense in ordinary and concise language without repetition, in such a manner as to enable a person of common understanding to know what is intended, is sufficient.

Ownership of a chattel denotes possession, dominion, and control over it.

Words used in a statute to define a public offense need not be strictly pursued in the information, but other words conveying the same meaning may be used.

The common-law doctrine of a strict construction of criminal law and all proceedings in criminal cases, and that an information should be certain to a certain intent in every particular, is not in force in Oklahoma.

For reasons holding an information sufficient as charging the defendant with having obtained certain property by false pretenses, as against a motion in arrest of judgment, see body of opinion.

Appeal from District Court, Bryan County; Jesse M. Hatchett, Judge.

D. F Underwood was convicted of the crime of obtaining property by false pretenses and his punishment fixed by verdict at imprisonment for two years, and, from an order arresting the judgment, the State appeals. Reversed, and cause remanded with directions to overrule the motion in arrest of judgment and pronounce judgment in conformity with the verdict.

Chas P. Abbott, Co. Atty., of Durant, and S. P. Freeling, Atty Gen., and W. C. Hall, Asst. Atty. Gen., for the State.

Hatchett & Ferguson, of Durant, for defendant in error.

MATSON J.

This is an appeal by the state from an order of the district court of Bryan county arresting the judgment upon a trial in which the defendant, Underwood, was convicted of the crime of obtaining property by false pretenses, and the punishment fixed by the jury's verdict at imprisonment in the state penitentiary for a term of two years.

The information upon which this prosecution is based, omitting the caption, is as follows:

"Comes now Chas. P. Abbott, the duly qualified and acting county attorney in and for Bryan county, state of Oklahoma, and gives the district court of Bryan county and state of Oklahoma to know and be informed that the above-named defendants, D. F. Underwood, and Frank Adams, late of Bryan county, did in Bryan county and in the state of Oklahoma, on or about the 15th day of November, in the year of our Lord one thousand nine hundred and fourteen, commit the crime of obtaining property under false pretenses in the manner and form as follows:

That is to say, the defendants did in said county and state, at the date above named, unlawfully, willfully, and feloniously represent to one I. C. Tally that one D. F. Underwood was the owner of a certain good and valid note for the sum of $1,250.00, and that said note was secured by mortgage on certain lands located in Murray county, Okl., and relying upon said representations as being true, and believing same to be true, the said I. C. Tally was then and there induced to and did part with a certain stock of goods located at Silo, Okl., in exchange for said note and mortgage, when in truth and in fact said note was bogus and was not secured by mortgage on said lands as represented and same is worthless, all of which said defendants then and there well knew, and the said representations were made designedly, fraudulently, feloniously and willfully with intent to wrong, cheat and defraud the said I. C. Tally out of the said stock of goods and the value thereof, contrary to the form of statutes in such cases made and provided, and against the peace and dignity of the state."

Section 2694, Revised Laws 1910, is the statute upon which this prosecution was based, and reads as follows:

"Any person who, with intent to cheat or defraud another, designedly, by color or aid of any false token or writing, or other false pretense, obtains the signature of any person to any written instrument, or obtains from any person any money or property, is punishable by imprisonment in the penitentiary not exceeding three years or in a county jail not exceeding one year, or by a fine not exceeding three times the value of the money or property so obtained, or by both such fine and imprisonment."

No demurrer was interposed to said information in the lower court, neither was any objection made to the introduction of evidence upon the ground that the information failed to state a public offense. The first time the sufficiency of the information was attacked in the lower court was after verdict, and upon motion in arrest of judgment, which reads as follows: "Now comes the above-named defendant and moves the court to set aside and vacate the verdict of the jury returned in this cause and dismiss this action for the following reasons and on the following grounds, to wit:

Because the information filed against the defendant in this cause does not state facts sufficient to constitute a public offense against the state of Oklahoma and does not state facts sufficient to constitute the offense of false pretense with which it attempts to charge the defendant.

Of all of which the defendant prays the judgment of the court."

Section 5791, Revised Laws 1910, provides:

"The defendant may demur to the indictment or information when it appears upon the face thereof, either:

First. That the grand jury by which an indictment was found had no legal authority to inquire into the offense charged, by reason of its not being within the legal jurisdiction of the county.

Second. That it does not substantially conform to the requirements of this chapter.

Third. That more than one offense is charged in the indictment or information.

Fourth. That the facts stated do not constitute a public offense.

Fifth. That the indictment or information contains any matter which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution."

Section 5799, Id., provides:

"When the objections mentioned in section 5791 appear from the face of the indictment or information, they can only be taken by demurrer, except that the objection to the jurisdiction of the court over the subject of the indictment or information, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, and in arrest of judgment."

Section 5939, Id., provides:

"A motion in arrest of judgment is an application on the part of the defendant that no judgment be rendered on plea or verdict of guilty, or on a verdict against the defendant on a plea of former conviction or acquittal. It may be founded on any of the defects in the indictment or information mentioned as grounds of demurrer unless such objection has been waived by a failure to demur, and must be before or at the time the defendant is called for judgment."

In Rhea v. U. S., 6 Okl. 254, 50 P. 993, it is said:

"The defendant below, so far as the record in this court discloses, neither moved to set aside the indictment nor demurred thereto, and has therefore waived all objections to the same, except that it does not state facts sufficient to constitute a public offense, or to give the court jurisdiction of

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