Woodring v. Territory Oklahoma
| Decision Date | 15 June 1905 |
| Citation | 1905 OK 36,81 P. 631,15 Okla. 309 |
| Parties | ALBERT SIDNEY WOODRING AND FRANK WOODRING v. THE TERRITORY OF OKLAHOMA. |
| Court | Oklahoma Supreme Court |
¶0 1. DOMESTIC ANIMALS-- Larceny--Statutes. Sec. 1. art. 1, chap. 20, Session Laws of Oklahoma, 1895, which provides, "that if any person shall steal any stallion, mare, colt, gelding ridgeling, or any ass, genet or mule, or any bull, cow calf, steer, or stag he shall be guilty of a felony and on conviction thereof shall be punished by confinement in the territorial penitentiary for a term of not less than one nor more than ten years" creates a distinct and separate offense from larceny as defined by the statute of Oklahoma, 1893, and does not make the stealing of the domestic animals named in such act grand larceny without regard to value.
2. TRIALS--Presence of Defendant. Where the record shows the presence of the defendant in a criminal case at a session of court it will be presumed that he continued to be present in court during the day, or until the first adjournment, unless the contrary is made to affirmatively appear.
3. CONTINUANCES--Not Granted, When. Where an affidavit in a criminal case is filed by the defendant in support of his application for a continuance, and the affidavit gives the names of the defendant's witnesses desired, and sets forth what he expects to prove by them, if the county attorney admits that the witnesses if present would so testify, and the court orders that such affidavit may be used as a deposition in said cause, it is not error to overrule the motion for continuance.
J. A. Powers and G. A. Brown, for plaintiffs in error.
P. C. Simons, Att'y. Gen. and Don C. Smith, Ass't. for defendant in error.
STATEMENT OF FACTS.
This is a proceeding in error brought by plaintiffs in error from the district court of Greer county, in which the plaintiffs in error were indicted by the grand jury of that county, charged with the theft of domestic animals, to-wit: Two mares and colts, alleged to be the property of W. J. McDonald. Indictment filed March 7th, 1903. At the August term 1903, of said court, the defendants having been arrested, demurred to the indictment on the ground that the facts therein stated did not constitute a public offense. Demurrer was overruled, defendants excepted, and entered pleas of not guilty. August 29, 1903, the case was called for trial, and the defendant Reynolds, with whom the plaintiffs in error were jointly indicted, was granted a severance. The Territory announced ready, and the defendants announced not ready, and presented a motion for continuance, supported by affidavit, on the ground of the absence of certain witnesses, in said affidavit named. The county attorney, in open court, admitted the witnesses named in the motion for continuance, would, if present, testify as alleged in said motion, and it was ordered that the affidavit might be read to the jury as the deposition of the witnesses, whereupon the court overruled the defendants' motion for continuance, and defendants excepted. On the same day the case proceeded to trial, and resulted in a verdict finding the defendants guilty as charged in the indictment. September 5th, the defendants presented a motion for new trial which was overruled by the court, and the defendants were sentenced, Albert Sidney Woodring to five years, and Frank Woodring to four years in the territorial penitentiary, to which judgment and sentence the defendants excepted, and bring the case here for review.
Error from the District Court of Greer County; before James K. Beauchamp, Trial Judge.
J. A. Powers and G. A. Brown, for plaintiffs in error.
P. C. Simons, Att'y. Gen. and Don C. Smith, Ass't. for defendant in error.
¶1 The first assignment of error urged by the defendants is that the court erred in overruling the defendants' demurrer to the indictment. The charging part of the indictment is as follows:
"On the first day of August, in the year of our Lord, nineteen hundred, in the county of Greer, and Territory of Oklahoma, aforesaid, did, then and there, unlawfully and feloniously, by fraud and stealth, take, steal and carry away four certain domestic animals,...
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