Leslie v. State , 22 Okla. Crim. 111 ( 1920 )

Considerable space is devoted in the brief of counsel for defendant to the proposition that there is a fatal variance between the allegations of the information and the proof adduced by the state in support of the charge.

In this connection it is contended that the proof tends, if at all, to support any crime it is that the defendant, as active managing officer of the bank, indirectly borrowed money from the bank, which act is deemed to be larceny under the provisions of section 270, Revised Laws 1910, a provision of the state banking laws.

This theory of the case was not contended for in the trial court, as there was no motion to direct a verdict of not guilty by reason of such a variance. The sole defense advanced in the trial court appears to have been that the specific transaction which the information charges to have been larcenous and felonious was in fact a good-faith transaction on the part of the defendant, for which a civil liability may have ensued in favor of the bank and against him and his bondsmen, but for which no criminal liability in any event could be charged to him. This theory of the defense was fully covered in the court's instructions.

We deem it unnecessary, therefore, to enter into any discussion of the question as to whether an accused managing officer of a state bank may be charged with larceny under the common-law definition of the crime, and without a fatal variance ensuing proved to be guilty of borrowing money from the bank either directly or indirectly, which said offense is made larceny by section 270, supra; as the sole question presented by this appeal is whether or not the facts are sufficient to sustain the conviction of defendant of stealing the funds of the bank by fraud in the manner and form as alleged in the information.

This court has repeatedly held that, if there is any evidence in the record from which the jury could legitimately conclude that the defendant was guilty of the crime charged, the conviction will not be set aside because of the insufficiency of the evidence. Clingan v. State, 15 Okla. Cr. 483, 178 P. 486; Crilley v. State, 15 Okla. Cr. 44, 181 P. 316.

In this case the evidence establishes that early in the year 1915 Leslie permitted not only Ora Sands, with whom he was dealing for the purchase of certain real estate, to make an overdraft in the bank, and thereafter drew a sight draft on her which he placed in the cash drawer of the bank, and never submitted it to her for acceptance or payment, but was guilty of doing the same thing in several other instances. The evidence of these other similar transactions was admissible for the purpose of showing the intent with which the particular act charged in the information was committed, as covered by the court's instructions. We do not think it absolutely necessary for the state to prove that defendant physically extracted the sum of $460 of money from the bank, nor that he obtained any benefit by reason of the larceny of this money. Under the charge, it was necessary only that the state prove that he took the money of the bank by fraud and with intent to deprive the bank thereof. That he took the money we think is proven beyond any reasonable doubt by the evidence on the part of the state. That the transaction was fraudulent we also believe to be sustained by the circumstances and means used by defendant to conceal the taking of the money. There is no contention that the bank at any time consented to any of these fraudulent transactions, and the manner in which the defendant obtained the money was concealed by the method pursued by him. Under the instructions of the court it was incumbent upon the jury to find beyond a reasonable doubt that this defendant used certain fraudulent means, to wit, fictitious and worthless checks, and "phoney" drafts, to obtain from the bank its funds in excess of $20, with the intent to deprive the bank thereof. On the other hand, the jury was instructed fully and clearly upon the theory of the defendant that he acted in good faith in these transactions, and without any intent to deprive the bank thereof; and in this connection the jury were told that, if they believed such facts to be true, they should acquit defendant; and further, if the jury had a reasonable doubt as to whether such facts were true they should acquit the defendant. It was incumbent upon the jury, therefore, before they could convict the defendant, to find beyond a reasonable doubt that he was guilty of the crime of larceny by fraud as charged in the information. The issues between the state and the defendant were fully covered by the court's instructions in such a manner that the jury could not have been misled in the least as to the necessity of finding that the defendant, by means of fraud, stole the particular $460 of the money of the bank, as alleged in the information, or in that identical transaction stole a sum of money in excess of $20.

We are of opinion that the state's evidence, as summarized above and as appears in the record in this case, is amply sufficient to authorize the jury to reasonably conclude that defendant was guilty of the crime charged, and for such reason is sufficient to sustain the verdict and the judgment of conviction as pronounced thereon. Holding such view, it is incumbent upon this court to affirm the judgment, and it is therefore ordered that the judgment of the district court of Wagoner county sentencing the defendant to a term of two years' imprisonment in the state penitentiary be, and is hereby, affirmed.

DOYLE, P.J., and ARMSTRONG, J., concur.