Taylor v. State , 38 Okla. Crim. 350 ( 1927 )

I am not able to concur in the reasoning in this case. It is my view of the law that section 1649, Comp. Stat. 1921, defining a misdemeanor for two or more persons to conspire to commit any crime, is not repealed by section 1, c. 260, Session Laws 1915 (section 1652, Comp. Stat. 1921), which defines a conspiracy as a felony where two or more persons conspire to commit an offense against the state of Oklahoma or to defraud the state of Oklahoma. The latter section modifies the prior law only as to conspiracies against the state of Oklahoma as such or as to conspiracies to defraud the state of Oklahoma, leaving the remainder of section 1649 unimpaired. That is to say, the act of 1915 defines as a felony and provides an enlarged punishment for the specific offenses therein mentioned. I am not unmindful of the decisions of the federal courts construing the federal statute from which section 1652, supra, was adopted. It is a sound rule of statutory construction that where a statute is adopted from a sister state or from an act of Congress, the judicial construction already placed upon it by the state or the United States, as the case may be, accompanies the statute and is to be treated as incorporated therein unless such construction would be in derogation of some general law. This rule I think not applicable here, for the reason that at the time the federal conspiracy statute was enacted by Congress there was no federal statute defining a conspiracy as a misdemeanor as there was in this state when the act of 1915 (section 1652, supra) was enacted. This distinction requires that section 1649 and section 1652 be construed together. Under this aspect of the law the conviction in this case could not stand, as the conspiracy charged would be a misdemeanor, under section 1649, and not a felony as defined by section 1652. This view is in harmony with the case of State v. Young, 20 Okla. Cr. 383, 203 P. 484, and Burtner v. State, 20 Okla. Cr. 469, 204 P. 135.

There is, however, some conflict in the authorities as to whether a conspiracy to commit an offense is merged in the offense when the object of the conspiracy is accomplished. 12 C.J. 580, §§ 93-95, and authorities cited; 5 R.C.L. 1077, § 21, and authorities cited.

The majority opinion in effect holds that the conspiracy merges in the overt act. In my judgment, the conspiracy statute does not conflict with the constitutional provisions in reference to prohibition enforcement, that a conspiracy to violate the prohibition enforcement act is not the same offense as the violation of the act. Rambo v. State,38 Okla. Cr. 192, 259 P. 602.