Oats v. United States , 1 Indian Terr. 152 ( 1897 )

Lewis, J.

This is an appeal from a conviction for larceny. .The property charged to have been stolen was described in the indictment as “two calves, of the value of ten dollars. ” Appellant demurred to the sufficiency of the indictment because it failed to describe the stolen property with enough certainty to apprise him of what he was charged with stealing. The point is urged that “calf” is a term applicable to the young of buffaloes and other animals, as well as to that of the domestic cow, and, therefore, not alone sufficient as a descriptive term. While this objection seems fanciful, it cannot be said to be unsupported by authority, though, happily, the trend of modern judicial opinion is to treat such refinements as without merit. Rap. Lar.; 2 Bish. New Cr. Proc. § 700, and authorities therein cited. In State vs Oakley, 51 Ark. 114, 10 S. W. 17, it is said that, as a general rule, the property taken should'be described specifically by the name usually appropriated to it. Regardless of these considerations, the matter is set at rest, so far as this case is concerned, by section 2107 of Mansfield’s Digest of the Laws of Arkansas, which enacts: “No indictment is insufficient, nor can the trial, judgment or other proceeding thereon, be affected by any defect which does not tend to the prejudice of the substantial rights of the defendant on th( merits. ” The record does not disclose that appellant, uninformed by tbe indictment, prepared to meet the charge of larceny of a buffalo calf or a young elephant; and was surprised when put to trial for the theft of the progeny of a domestic cow. On the contrary, it shows that he was thoroughly advised of the issue he was to meet, and brought witnesses to disprove the identity of the very animal for whose taking he was convicted, and that he suffered no prejudice whatever by the defect in the indictment, if such should be held to exist.

2. Objection is urged to the jurisdiction of the trial court. The indictment was returned on October 17, 1895, and charged the commission of the offense on March 30th of bhat year. By section 4 of the act of congress approved March 1, 1895, it is provided: “The provisions of chapter 45 of Mansfield’s Digest of the General Laws of Arkansas, entitled ‘Criminal Law,’ except as to the crimes and misde-neanors mentioned in the proviso of this section, * * * are hereby extended to and put in force in the Indian Terri-:ory; and the jurisdiction to enforce said provisions is here-ay conferred upon the United States Court in the Indian Territory: provided, that in all cases where the laws of the Jnited States and the said criminal laws of Arkansas have provided for the punishment of the same offense, the laws of ¡he United States shall govern as to said offenses, except for he crime of larceny, the punishment for which shall be that prescribed by the laws of the state of Arkansas, any law in orce in said Indian Territory to the contrary notwithstand-ng. Section 9 of the same act provides “that the United states Court in the Indian Territory shall have exclusive riginal jurisdiction of all offenses committed in said terri-ory of which the United States Court in the Indian Terri - ory now has jurisdiction; and after the first day of Septemer, 1896, shall have exclusive original jurisdiction of all 'ffenses against the laws of the United States committed in aid territory, except such causes whereof the United States Courts at Paris, Texas, Fort Smith, Arkansas, and Fort Scott, Kansas, shall have acquired jurisdiction before that time. ” It is urged, inasmuch as the punishment for the larceny of domestic animals, under the laws of Arkansas, is imprisonment in the penitentiary at hard labor, and inasmuch as the United States Court in the Indian Territory had not jurisdiction of offenses so punishable, except in enumerated cases, under the laws in force prior to the act of March 1, 1895, that by section 9 of said act its jurisdiction was limited, until September 1, 1896, to what it had prior to the adoption of said act. The language of section 9, considered alone, supports this contention; but, when read in connection with section 5, we think it establishes the jurisdiction of the trial court of the present offense, which was prosecuted under the larceny law of Arkansas. By the act of 1895 the punishment for larceny was declared to be that fixed by the law of Arkansas. It cannot be claimed that, prior to this act, the jurisdiction to punish according to the Arkansas larceny law had ever been in the United States Courts, within the Indian Territory or out of it, for the reason that that law was not put in force until the act of March 1, 1895. The terms of that act conferred the jurisdiction to enforce this law upon the United States Courts in the Indian Territory. Whether that jurisdiction was exclusive or concurrent with that of the United States Courts at Paris, Ft. Smith, and Ft. Scott, as held by those courts, need not be determined.

Jurisdiction. Continuance.

3. It is not shown that the court abused its discretion in overruling appellant’s motion for continuance. That motion was made on October 7, 1895, and recites that appellant, on the-- day of September, caused the clerk to issue a subpoena for the absent witness. The application does not show that the subpoena was placed in the hands of an officer, nor where the witness resided, nor that it would have been possible for the officer to have served the witness with process in the time between the issuing out of the same and the trial. In the showing of dilligence, the application is fatally defective.

Cross-examination.

4. Complaint is made that the court permitted a witness for the defense to be asked, in cross-examination, if he had been arrested and indicted, to which the witness replied that he had been arrested and indicted for larceny. It is not error to permit, in cross-examination, questions whose purpose is to impeach the witness, by showing that he has been arrested or indicted for larceny or other offenses involving moral turpitude. The point presented was fully considered in the case of Oxier vs U. S., 1 Ind. Ter. 85. The proof is sufficient to support the verdict, and the judgment is affirmed.

Springer, C. J., concurs.