Bivens v. State , 6 Okla. Crim. 521 ( 1912 )

The first assignment of error is that the court erred in overruling the demurrer to the information. The objection here urged by the defendant's counsel to the sufficiency of the information is, that it attempts to charge "theft by fraud" in general terms, and that the failure to allege the specific acts constituting fraud is fatal. Citing the case of Martin v.Territory, 4 Okla. 105.

The Supreme Court of Oklahoma Territory passed directly upon this question in the case of Flohr v. Territory, 14 Okla. 477. Mr. Justice Gillette, delivering the opinion of the court, after reviewing numerous decisions, in conclusion said:

"We are referred to no case or authorities supporting the defendant's contention in this respect, except the case of Martinv. Territory, supra, which, as we have before remarked, does not go to the extent of holding that in an indictment where a fraudulent taking is charged, it is necessary to set out the acts relied upon as constituting the fraud, and we must hold, therefore, on the strength of the authorities above cited, that it is not necessary, and that the crime of larceny may be satisfactorily shown by proof that, at the time of taking the property, it was taken with the felonious intent to convert it to the taker's own use, and to deprive the owner thereof, regardless of the fact as to whether the taking was accomplished by fraud or stealth."

We think the information sufficiently charges the crime of larceny by fraud.

The next assignment, that the court erred in overruling the defendant's demurrer to the evidence introduced by the state, is equally untenable.

Under the provisions of the Penal Code, larceny and embezzlement are defined as follows:

Section 2591, Snyder's Stat.:

"Larceny is the taking of personal property, accomplished by fraud or stealth, and with intent to deprive another thereof."

Section 2609:

"Embezzlement is the fraudulent appropriation of property by a person to whom it has been entrusted."

As to the distinction between the two crimes as defined by the statute, in the case of Flohr v. Territory, supra, it is said:

"In larceny the criminal intent must exist at the time of taking the property, and it must be taken, when taken, with intent to appropriate it to the taker's own use, and to deprive another thereof. It may be taken by stealth with such intent, or it may be taken with the owner's knowledge through fraudulent practice, by which the owner was induced to give up possession without parting with the title or right to the property, and if the taker receives it under such circumstances intending to convert it to his own use and thereby deprive the owner thereof, the crime is larceny.

"If, on the other hand, the property is received by the taker as a bailment, or the right of possession is entrusted to him by the owner with intent to confer upon the taker the present use and possession of the property to be afterwards re-delivered to the owner, and the taker receives it intending a compliance with the terms upon which he receives it, and after he has received it with such intent, he converts it to his own use intending to deprive the owner thereof, the crime is embezzlement."

If the owner of personal property parts with the possession of the same for a particular purpose, and the person who receives the possession avowedly for that purpose has a fraudulent intention to make use of the possession as a means of converting such property to his own use, and does so convert it, the crime is larceny.

Under this assignment it is also contended that the evidence is not sufficient to sustain a conviction, because the owner voluntarily parted with the possession of his property for a specified time and then did not ask a return of the same.

We think this was entirely a question for the jury. Taking all the facts and circumstances surrounding the taking of the money by the defendant from the owner, they are sufficient to show the felonious intent of the defendant at the time of the taking, and that it was taken by fraud, with the design then entertained to deprive the owner thereof, which the state was bound to prove, and the fact that the defendant in possession of the stolen property distinctly asserted his ownership, is evidence of the fact that he intended at the time of the taking to deprive the owner thereof and convert it to his own use.

It is further contended that if the proof on the part of the prosecution tends to show the commission of larceny by fraud, the commission of the crime was complete in the state of Texas; that larceny by fraud is in the nature of a local offense, and for this reason the defendant could not be convicted of the offense in Oklahoma.

We think the fact that the defendant secured the possession of the property in Texas in no way detracts from the force and effect of his fraudulent acts, and the facts in evidence showing fraudulent intent in taking the property from the owner. The right of possession, as well as the right of the property, remained in the owner all the time as a matter of law, if the original taking and transportation of the property was under such circumstances as constituted a larceny.

Our Penal Code provides that (section 2605, Snyder's Stat.):

"Every person who steals the property of another, in any other state or country, and brings the same into this state may be convicted and punished in the same manner as if such larceny had been committed in this state, and such larceny may be charged to have been committed in any town or city into and through which such stolen property has been brought."

We do not deem it necessary to further discuss the arguments upon the defendant's behalf, because we regard the contentions as entirely devoid of merit.

Not a single authority is cited supporting the assignments of error predicated on the instructions requested and refused, and on the instructions given. We find that the instructions given by the court fairly state the law of the case.

Our conclusion is that the defendant had a fair, impartial, and legal trial, and the judgment of conviction is manifestly just. It will therefore be affirmed.

FURMAN, P.J., and ARMSTRONG, J., concur.