State v. Waldrep

• Decision Date: 25 April 1945
• Docket Number: A-10258.
• Citation: 158 P.2d 368,80 Okla.Crim. 230
• Parties: STATE v. WALDREP.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

158 P.2d 368

80 Okla.Crim. 230

STATE v. WALDREP.

No. A-10258.

Court of Criminal Appeals of Oklahoma

April 25, 1945

Appeal from District Court, Cleveland County; Tom P. Pace, Judge.

Tom C Waldrep was informed against for embezzlement. The trial court rendered its judgment quashing the information discharging defendant's bond, acquitting the defendant and the State appeals on a reserved question of law.

Reversed.

Syllabus by the Court.

1. In a criminal case the State may appeal to this court: First, from a judgment setting aside an indictment or information; second, upon an order of court arresting judgment; and, third, upon a question reserved by the State. An appeal upon a question reserved by the State does not bring up any part of the trial or proceedings of the case, except the question reserved and the judgment of acquittal, and if such question reserved is decided in favor of the State, it simply settles that question of law and does not affect the verdict of acquittal.

2. Every guardian appointed in state accepts his appointment subject to statutory provision requiring guardian to render account and at expiration of his trust to settle his accounts.

3. A former guardian, on removal by county court and appointment of successor, is obligated to pay to such successor all moneys remaining in former guardian's hands belonging to ward, and failure so to pay on lawful demand by successor amounts to unlawful 'conversion' and is 'embezzlement,' as defined by Statute. 21 Okl.St.Ann. § 1454, 58 Okl.St.Ann. § 776.

4. Where State does not rely on any specific act of unlawful conversion, but on facts showing certain moneys coming into hands of guardian which were never accounted for and which were not paid over to successor guardian on formal demand, in absence of any proof of specific act of conversion, limitation on prosecution for embezzlement commenced to run when former guardian was removed and his successor appointed, as such was time when former guardian became obligated to pay to minor's legal representative all funds in former guardian's hands belonging to minor. 21 Okl.St.Ann. § 1454, 58 Okl.St.Ann. § 776.

5. Where State appeals on reserved question of law, action of trial court in acquitting defendant will not be affected by a reversal of the judgment of the trial court on legal question involved.

Randell S. Cobb, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Otis Blankenship, Co. Atty., of Norman, for plaintiff in error.

Al G. Nichols, of Wewoka, for defendant in error.

LOONEY Special Judge.

This case comes to this court on appeal by the State on a reserved question of law under the provisions of the applicable statute, Subdivision 3, 22 O.S.1941 § 1053, which reads:

'Appeals to the Criminal Court of Appeals may be taken by the State in the following cases and no other:

'1. Upon judgment for the defendant on quashing or setting aside an indictment or information.

'2. Upon an order of the court arresting the judgment.

'3. Upon a question reserved by the State.'

The facts out of which the prosecution arose and which are necessary to a consideration of the 'question reserved' by the State, are as follows:

Defendant in error, Tom C. Waldrep, hereinafter referred to as 'defendant', was duly appointed guardian of Una and Dora Hembree. He acted as such guardian until the 29th day of May, 1939, at which time he was removed as guardian by the County Court of Cleveland County. On June 7th, 1939, A. W. Hembree was appointed and qualified as defendant's successor. Thereafter, the defendant's account was surcharged by the County Court of Cleveland County in the sum of $66,557.40. On Appeal, the District Court lowered the amount to $64,238.35, which order became final.

Defendant was arrested on complaint on July 11th, 1941. He was charged with embezzlement alleged to have occurred on the 29th day of May, 1939, the date on which he was removed as guardian. Preliminary hearing was had and the defendant bound over to the District Court of Cleveland County.

On January 20th, 1942, the County Attorney filed information in the District Court of Cleveland County. Defendant filed a motion to quash and set aside the information. The District Court thereafter entered its order quashing the information and ordered the defendant released and his bond discharged. The County Attorney thereupon gave notice of appeal as follows: 'Notice is hereby given that the above styled cause will be appealed to the Criminal Court of Appeals on a reserved question of law as provided by the statutes. Dated the 16th day of April, 1942, Otis Blankenship, County Attorney.'

The chief issue presented for determination on this appeal is: Was prosecution barred by the Statute of Limitations? The Attorney General, in his argument to this court, presented for the first time a question as to whether or not this case could be remanded to the trial court for further proceedings.

The State contends that the offense was not barred by the Statute of Limitations.

In the case of Glenn v. State, 72 Okl.Cr. 165, 114 P.2d 192, 200, this court construed the applicable statutes 58 Okl.St.Ann. § 776, which provides that every guardian appointed in this state accepts his appointment subject to the statutory provisions requiring the guardian to render account, and at the expiration of his trust, to settle his accounts.

21 Okl.St.Ann. § 1454, reads: 'If any person being a trustee, banker, merchant, broker, administrator or collector, or being administrator or collector, or being otherwise entrusted with or having in his control property for the use of any other person, or for any public or benevolent purpose, fraudulently appropriates it to any use or purpose not in the due and lawful execution of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, he is guilty of embezzlement. R.L.1910, § 2673.'

The following language from the opinion of Glenn v. State, supra, is equally applicable to the state of facts shown by this record: 'It is apparent that under the provisions of § 1436, supra [58 O.S.1941 § 776], the defendant in the lawful execution of his trust became obligated to pay to his successor as guardian the sum acknowledged by the defendant in his final account to be due to said ward, and any other sum actually owing to said minor, and his failure upon demand so to do constitutes an act of embezzlement.'

Defendant was charged by complaint filed with the magistrate on July 11th, 1941, which charged that the offense occurred on May 29th, 1939. Evidence introduced at the preliminary hearing relating to specific offenses on other dates, was introduced for the purpose of establishing the liability of the defendant to account. The charge the State relied upon was the failure of the defendant to account at the time of his removal on May 29th, 1939.

We are of the opinion, and so hold, that the limitation commenced to run at the time of the removal of the guardian and the appointment of the outgoing guardian's successor, which was June 7th, 1939, and prosecution of the alleged offense would not be barred by 22 O.S.1941 § 152, until the expiration of three years from said date. Glenn v. State, supra.

A criminal prosecution is 'commenced' when complaint is filed with magistrate and warrant issued. Hicks v. State, 54 Okl.Cr. 431, 23 P.2d 219.

The question raised by the Attorney General for the first time in the argument on this appeal, that the case should be remanded to the District Court of Cleveland County for further proceedings, is not well taken. The County Attorney of Cleveland County appealed this case solely on a reserved question of law.

'An appeal upon a question reserved by the state does not bring up any part of the trial or proceedings of the case, except the question reserved and the judgment of acquittal, and, if such question reserved is decided in favor of the state, it simply settles that question of law, and does not affect a verdict of acquittal.' State v. Pollock, 5 Okl.Cr. 26, 113 P. 207, 209.

The pertinent part of the trial court's order is as follows: '* * * and that the bond heretofore posted by the defendant be discharged and that said defendant be released.'

In Ray v. Stevenson, 71 Okl.Cr. 339, 111 P.2d 824, 829, we reviewed the statutes providing the procedure for the dismissal of indictments or information: 'We do have certain statutes providing the procedure for the dismissal of indictments or informations where a demurrer or a motion to quash is sustained to an indictment or information upon the arraignment of a defendant in the district court in connection with a felony charge.'

We cited the various statutes, including 22 Okl.St.Ann. § 508.

22 Okl.St.Ann. § 499, relating to a motion to set aside an indictment or information, provides:...