190 6. Criminal law 209 PACIFIC REPORTER 829(10)-Refusing instruc- | property described therein was the subject of tions on a matter covered by an instruction forgery; that said information failed to given is not error. charge whom the defendants are charged Instructions relating to the testimony of with attempting to defraud. This demurrer accomplices examined, and held sufficient. (Additional Syllabus by Editorial Staff.) 7. Criminal law 268-Each defendant must plead for himself, whether prosecuted jointly or severally. was by the court sustained, and an order made permitting the county attorney to file an amended information, but no amended information was filed pursuant to said order. The record further discloses that on the 9th day of September, 1919, the defendant John Q. Adams filed a separate demurrer to the information, which was by the court overruled, and that the defendants, upon their motion, were then granted a severance. Thereupon 8. Indictment and information 146-Demur- this defendant announced ready for trial and rer is an objection to a plea, and rules of the trial proceeded, with the result before pleading apply. Where several persons join in the commission of an offense, the action is joint or several, and, whether prosecuted jointly or severally, each defendant must plead for himself. While a demurrer, strictly speaking, is not a plea, it is an objection to a plea, and the rules of pleading apply. 9. Indictment and information 153-Where demurrer of one joint defendant was sustain ed, and another voluntarily appeared, filed a demurrer, which was overruled, and was convicted, held, that court had jurisdiction. stated. The facts in this case disclose that John Q. Adams and D. F. Underwood had an agree ment and understanding with Sam Jackson that the latter should impersonate an Indian allottee, by the name of Jimmie Thomas, and other Indian allottees, and should falsely and fraudulently execute forged and spurious deeds, purporting to be executed by Jimmie Where three defendants were charged joint- Thomas and other Indian allottees, to por ly with a forgery, and a general demurrer by one of them was sustained, and the filing of tions of their allotted lands, without the amended information permitted, but none was knowledge or consent of the allottees; that filed, and one of the defendants voluntarily ap- pursuant to this conspiracy and fraudulent peared and filed a separate demurrer, which agreement and understanding Sam Jackson was overruled, and pleaded not guilty and an-executed a deed to a portion of the land benounced ready for trial, held, that the court had jurisdiction to try the offense, and his conviction was not void because of like sustaining of the demurrer of the other defendant. Appeal from District Court, Marshall County; Geo. S. Marsh, Judge. John Q. Adams was convicted of forgery in the first degree, and sentenced to serve ten years in the state penitentiary, and he appeals. Affirmed. R. C. Roland, of Ada, for plaintiff in error. S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State. BESSEY, J. John Q. Adams, plaintiff in error, referred to in this opinion as the defendant, was by information filed in the district court of Marshall county, November 19, 1918, charged with knowingly, fraudulently, and feloniously making and forging a certain At the trial, described deed to real estate. on September 10, 1919, the jury rendered a verdict finding the defendant guilty, and assessing his punishment at confinement in the state penitentiary for a period of 10 years. D. F. Underwood and Sam Jackson were charged jointly with this defendant for this crime, and on May 23, 1919, D. F. Underwood, by his attorney, demurred to the information filed on the grounds that it did not state facts sufficient to constitute the crime of forgery; that said information did not charge that the longing to Jimmie Thomas, and signed the name of Jimmie Thomas to this purported conveyance, and by fraud and deception, and as a part of the conspiracy, acknowledged this purported conveyance before a notary public; that these defendants received, the purchase price named in the deed for the execution of this spurious deed and divided it among themselves. The assignments of error urged by the defendant in his brief may be summarized as follows: (1) That the record does not disclose that there was any preliminary hearing, and that the district court was therefore without jurisdiction. (2) That the amendment to the record shows that a demurrer to the information was filed on behalf of D. F. Underwood, a codefendant, and that the demurrer as to Underwood was sustained and that the county attorney failed to file an amended information. (3) Error of the court in permitting the witness Sam Jackson to testify to conversations had with his coconspirator, Underwood, in the absence of this defendant. (4) Error of the court in permitting the state to show a series of acts and transactions by these conspirators before and after the execution of the spurious deed here at issue. (5) That the testimony of Sam Jackson, an accomplice, was not corroborated by independ ent testimony. (6) That the verdict was rendered on September 10, 1919, a motion for a new trial was filed and overruled, and judgment rendered on For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ADAMS v. STATE (209 P.) September 11th, and that the rendition of judg-, 157 U. S. 113, 15 Sup. Ct. 498, 39 L. Ed. 639; 191 ment was therefore premature. (7) Error of the court in refusing to give instructions numbered 1, 2, and 3, requested by the defendant. ex Jackson, 28 Cal. 105; Freeland v. Jasper Co., Dyal v. Hays (Ark.) 12 S. W. 874; Farwell v. 27 Ill. 303; National Ins. Co. v. Bowman, 60 Mo. 252. Ordinarily, where one of several ground of the insufficiency of the informaparties demurs to an information on the tion, and the exceptions urged might apply to all of the defendants alike, a judgment on fendant who files it; but there are decisions the demurrer should apply only to the deof a demurrer attacking the sufficiency of an to the contrary, holding that the sustaining information may inure to the benefit of the codefendants who did not demur. 39 Cent. Dig. 1867; Tate v. Goode (Ga.) 33 L. R. A. (N. S.) 310, notes and annotations. [1] The Constitution of this state provides that no person shall be prosecuted for a felony by information without having first had a preliminary examination before an amining magistrate, or having waived such preliminary examination. does not claim that no preliminary examinaThe defendant tion was had, but now makes the objection for the first time that the record does not show that a preliminary hearing was had or waived. If the defendant did not have a preliminary examination it would be necessary for him to make some showing to that effect; record the meaning and effect of the order In this case it is difficult to glean from the the mere fact that such examination does not made in sustaining the demurrer of defendappear of record is not sufficient. In criminal ant Underwood. The grounds for demurrer cases prosecuted upon information in courts urged by Underwood were that the informaof record there is a presumption that the tion does not state facts sufficient to consticourt had jurisdiction, and that the defend-tute the crime of forgery; that the informaant had or waived a preliminary hearing. In the case of Williams v. State, 6 Okl. Cr. 373, 118 Pac. 1006, the third syllabus is as follows: "The fact that there has been a preliminary examination or a waiver thereof need not be stated or averred in the information, or shown affirmatively by the prosecution. That the defendant did not have a preliminary examination is a fact to be established on a plea in abatement or on a motion to quash; otherwise all essential preliminary proceedings will be presumed." To the same effect, see Robbins v. State, 12 Okl. Cr. 294, 155 Pac. 491. tion does not disclose that the property described therein was the subject of forgery; and that the information fails to charge whom an amendment to the record it appears that the defendants attempted to defraud. From on January 23, 1919, the court made an order, upon presentation and hearing of the demurrer of Underwood, and did "sustain said demurrer and quash the information on file in said cause and granted the county attorney permission to file an amended information within ten days thereafter." It further appears that no amended information was filed. Thereafter, on the 9th day of September, 1919, defendant John Q. Adams filed a deThe defendant made no objection in the murrer to the information on the ground trial court to the effect that no preliminary that the same did not state facts sufficient to hearing had been had or waived, and he can- constitute the crime charged. This demurnot here, for the first time, urge such ob-rer on the part of the defendant Adams was jection. In the case of McDaniel v. State, 8 Okl. Cr. at page 220, 127 Pac. 358, it was held that a defendant has a right to insist upon such an examination before being called upon to plead, but this right may be waived when called upon to plead, as well as when called before a magistrate for examination. This is not a matter which goes to the merits of the trial, but only to the regularity of previous proceedings. Doubtless there was a preliminary examination; otherwise the objection would have been urged in the trial court. [2] It is next urged that, because the court sustained a demurrer attacking the sufficiency of the information, filed on behalf of the codefendant Underwood, such ruling of the court amounted to a judgment of the court that the information was insufficient as to the other codefendants. A demurrer urged by one of several parties may be passed upon without affecting the rights of the others. 31 Cyc. 349; U. S. v. Piatt, on the same day heard and overruled; a severance was ordered and the defendant Adams announced ready for trial. [3] Section 6099, R. L. 1910, is as follows: upon the application of the county attorney, "The court may, either of its own motion or and the furtherance of justice, order an action or indictment to be dismissed; but in that case the reasons of the dismissal must be set forth in the order, which must be entered upon the minutes." when the objection that the facts stated do Section 5799, R. L. 1910, provides that, not constitute a public offense appears upon the face of the information, objection may be taken by demurrer, or, at the trial, under a plea of not guilty, and in arrest of judgment. Section 5795, R. L. 1910, provides that if the upon the information demurred to, unless demurrer is sustained the judgment is final the court directs a new information to be filed. The court cannot delegate this author ity to the county attorney, leaving it to his discretion to file or not to file an amended information. Ex parte Williams, 116 Cal. 512, 48 Pac. 499. Section 5796 provides that, if the court does not direct the defendant to be further prosecuted, he must be discharged. There is no wide difference between civil and criminal pleading. Bishop's New Crim. Law, § 320. [7] Where several persons join in the commission of an offense the action is joint or several, and, whether prosecuted jointly or severally, each defendant must plead for himself. Bliss on Code Pleading (3d Ed.) 414, 418. et seq. [8] While a demurrer, strictly speaking, is not a plea it is an objection to a plea and the rules of pleading apply. [9] We do not understand why the demur rer was sustained as to Underwood and over of conspiracy. A conspiracy may, and generally must, be proved by a number of independent acts, conditions, and circumstances tending to show an unlawful common purpose of the conspirators." alone to the forgery of the deed here at issue; The conspiracy here involved did not relate it contemplated the forgery of other deeds, with the manifest purpose and intent to cheat and defraud various Indian allottees out of their lands. The responsibility of coconspirators for the declarations and conduct of others acting with them is not confined to the accomplishment of the common purpose for extends to and includes all declarations made 339, 169 Pac. 1130, with reference to a con- "The entire scheme was conceived in iniquity. This court has repeatedly held that the least degree of concert of action or collusion makes the act of one conspirator the act of all, and each conspirator is liable for the act of each other conspirator done in pursuance of such conspiracy"-citing many authorities. ruled as to this defendant, unless it was because there were three grounds urged in the demurrer interposed by Underwood and only one of those grounds was urged in the separate demurrer filed by Adams. From the recitals in this record, considered together with the subsequent conduct of this defendant in filing a separate demurrer and the conduct of the court in entertaining, hearing, and ruling on the demurrer, it would seem that the parties interested were of the opin- It therefore follows that, where the conion that the demurrer sustained as to Under-spirators pursued a well-defined system and wood did not affect the prosecution of the method of defrauding certain classes of indicodefendant Adams. We therefore hold, un-viduals, any testimony elucidating that sysder the circumstances here, that the volun- tem would be competent, whether the octary appearance of Adams by filing his sepa-currence or declaration testified to was previrate demurrer to the information, and after ous to or subsequent to the act complained an adverse adjudication thereon, voluntarily of in the information, so long as it was done appearing and entering his plea of not guilty, in pursuance of the common fraudulent deand announcing ready for trial, gave the sign. court jurisdiction to try the offense as to him, and that the judgment afterwards rendered on the verdict was not void because of the sustaining of the demurrer as to the defend-nounce judgment against him. This is anant Underwood. [5] It is next urged that the defendant was entitled to at least two days after the return of the verdict before the court should pro other right that may be waived. The de[4] It is next contended that the court erred fendant interposed no objection to the rendiin permitting the witness Sam Jackson to tion of judgment upon that ground at the testify to conversations he had with Under- time. He did interpose an objection to senwood in the absence of this defendant. These tence being pronounced upon the verdict, but conversations related, for the most part, to it appears that this was an objection to the the agreement and understanding had among judgment itself, and not an objection and the three defendants indicative of a conspir- exception to the fact that it was rendered too acy by which they were to co-operate in ut- soon. Kerkendall v. State, 5 Okl. Cr. 570, tering forged and spurious deeds. The testi-115 Pac. 612; Howard v. State, 2 Okl. Cr. mony as a whole amply supports this theory, and it therefore follows that any act or declaration of one coconspirator may be introduced against the other conspirators when done or made pursuant to their common design. In the case of Matthews v. State (Okl. Cr.) 198 Pac. 112, the eleventh syllabus is as follows: "It is immaterial in what order testimony predicated upon a conspiracy is introduced, if the series of facts and circumstances shown in evidence ultimately makes a prima facie case 200, 101 Pac. 131; McCord v. State, 2 Okl. Cr. 209, 101 Pac. 135. [6] Finally, it is urged that the court erred in refusing to give instructions numbered 2 and 3, requested by the defendant, touching upon the weight and effect of the testimony of an accomplice. The matters complained of were fully covered by instruction No. 5, given by the court, as follows: "You are instructed that the witness Sam Jackson is an accomplice of the defendant, J. Q. Adams, as that term is hereinafter used, SULLIVAN v. STATE and that a conviction cannot be had in this away, dispense, manufacture, produce, deal 193 case upon the testimony of an accomplice unless in, administer, or distribute, or to receive, it be corroborated by such other evidence as conceal, buy or in any manner facilitate the tends to connect the defendant with the com- distribution, concealment, or sale of, or dismission of the offense; and the corroboration tribution of, any narcotic drugs. One of the is not sufficient if it merely shows the commis- contentions of the defendant is that the tession of the offense or the circumstances thereof." timony does not show that he received or within the meaning of the statute. came into possession of the narcotic drugs, This instruction correctly states the law applicable to the testimony, and there was no error in refusing to give the instructions requested by the defendant. That the defendant was at the Ft. Smith & The judgment of the trial court is affirmed. fore and after the west-bound Ft. Smith & DOYLE, P. J., concurs. MATSON, J., not participating. SULLIVAN v. STATE. (No. A-3900.) (Criminal Court of Appeals of Oklahoma. (Syllabus by the Court.) Polsons 9-Evidence held insufficient to support charge of receiving narcotics. Where one is charged with "receiving and taking into his possession" certain narcotic drugs, evidence showing that the accused made an unsuccessful attempt to take the drugs from the transmission company held insufficient to support the charge, under the provisions of section 2, chapter 60, Session Laws 1919. Western train arrived, a little after 5 o'clock on the evening of March 31, 1920. That the pasteboard box containing the narcotics in question was on a hand truck, and after the train left the station the defendant came around the depot and looked at this box on the truck. That he picked the box up and started off with it, and had advanced five or six steps toward the station door, when witness stopped him and placed him under arrest, whereupon defendant threw the package back on the truck. The defendant was then taken into the depot and left in charge of another man, while the witness went to make another arrest. The package was consigned to Dr. T. M. Harrison, Warwick, Okl. When witness asked the defendant about the package, the latter replied that it did not belong to him. ant ask the agent if the package had been Witness heard the defendcalled for. Ray Horn testified: That he was the help Appeal from District Court, Lincoln Coun- er at the depot at Warwick. That on this ty; Hal Johnson, Judge. day he went to the Ft. Smith & Western H. E. Sullivan was convicted of receiving depot with Boyles when the train from the narcotics, and he appeals. Reversed and remanded. James A. Embry, of Chandler, for plaintiff in error. The Attorney General and Thos. G. Andrews, Co. Atty., of Chandler, for the State. east came in. That the defendant picked up a package from a truck, where it had been witness did not understand. When they got unloaded from the train, and said something close enough to him to hear, the defendant said, "Has anybody inquired for this package?" Mr. Boyles then said to the defendant, "Consider yourself under arrest." Defendant threw the package on the truck and said that it did not belong to him. BESSEY, J. On the 7th day of September, 1920, H. E. Sullivan, plaintiff in error, in this opinion styled the defendant, was found guilty of the crime of receiving narcotic drugs, and his punishment was assessed at confinement in the state penitentiary for a term of three years and a fine of $500. The information charged that the defend-ing ant "did willfully, unlawfully, and feloniously receive and take into his possession certain narcotic drugs, to wit, 32 bottles of morphine sulphate, each containing one-eighth ounce, and two bottles of cocaine, each containing oneeighth ounce, in violation of the provisions of section 2, chapter 60, Session Laws 1919, of the state of Oklahoma." The statute referred to in the information The county attorney testified: That he went to the express office at the depot in the town of Warwick and signed a receipt for the express package in question, containthe narcotics described in the information, and took it into his possession. This is, in substance, all the testimony in the record relating to the receipt and disposition of the narcotics in question. Webster's Dictionary defines the word “receive" thus: sent, paid, or the like; to accept." The Century Dictionary gives the word makes it a felony for any person to sell, give this definition: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 209 P.-13 194 209 PACIFIC REPORTER "To take from a source or agency of transmission; to take by transfer in a criminal man ner." There was no While the testimony shows that the deZendant had this package in his hand, the real possession by this act did not pass from the transmitting company. such transfer and relinquishment of possession until it was delivered to the county attorney. Doubtless it was the intention of the defendant to receive and receipt for this package by signing the name of the consignee, Dr. T. M. Harrison (probably a fictitious person). In all probability, but for the interference of this deputy sheriff, this package would have been so delivered. We think there was under the circumstances shown, no such taking, receipt, or delivery.as is contemplated by the statute. There may have been intent, coupled with actual attempt; but the trap was sprung too soon. The testimony, as shown by the record, might have been sufficient to sustain a charge of an attempt to commit this offense, under the provisions of section 2803, R. L. 1910. Other assignments of error are urged; but, since the facts as stated must operate as grounds for a reversal of this conviction, the other assignments need not be analyzed at this time. The cause is reversed and remande Appeal from District Court, McIntosh County; Harve L. Melton, Judge. Robert Lee Mickle was convicted of the larceny of live stock, and he appeals. Appeal dismissed, and cause remanded, with directions to enforce judgment. H. B. Reubelt and Clark Nichols, both of 24th day of May, 1920, for the larceny of The Attorney General has filed the following motion to dismiss this appeal: "Comes now George F. Short, the duly qualified and acting Attorney General, and moves the court to dismiss the appeal filed herein because the same has not been filed in the time tion to page 371 of the case-made, which shows prescribed by law, and calls the court's attenthat the judgment and sentence was entered in the district court of McIntosh county, Oklahoma, on the 24th day of May, 1920, and the appeal filed in this court on the 26th day of November, 1920, more than six months after the judgment and sentence." Section 5991, R. L. 1910, in part provides as follows: "In felony cases the appeal must be taken dered." within six months after the judgment is ren An examination of the record by the court discloses that the motion to dismiss is well taken, and that the appeal was not lodged in this court within the time allowed by statute and should therefore be dismissed; and it is so ordered, and the cause remanded to the trial court, with directions to enforce the judgment. MILLER et al. v. LEWISTON-CLARKSTON 1. Ejectment 9(3)-Plaintiff must recover In an ejectment action the plaintiff must recover upon the strength of his own title, and not upon the weakness of that of his adversary. 2. Navigable waters 37 (4)-Adjacent land under navigable water does not pass by patent alone. When land bordering upon navigable water is granted by a patent of the United States government, the adjacent land under the navigable water does not pass by virtue of the patent alone. 36(1)-State holds title to beds of navigable streams below or dinary high-water mark. In this jurisdiction the state holds title to The Attorney General and N. W. Gore, the beds of navigable streams below the ordiAsst. Atty. Gen., for the State. PER CURIAM. This is an attempted appeal from a judgment of conviction rendered against the defendant, Robert Lee Mickle, in the district court of McIntosh county on the nary high-water mark for the use and benefit of the whole people. 4. Officers 103-Void acts of public officials not immune from collateral attack. Void acts of public officials are not immune from collateral attack. For other cases see same topic and KEY NUMBER in all Key-Numbered Digests and Indexes |