(12 Okl. Cr. 448) RATCLIFF v. STATE. (No. A-2201.) (Criminal Court of Appeals of Oklahoma. July 3, 1916.) (Syllabus by the Court.) 1. OBSTRUCTING JUSTICE -SUFFICIENCY. 11-INDICTMENT The evidence establishes, or tends to establish, the following facts: On October 13, 1913, in the justice court before E. D. Ford, justice of the peace for the incorporated town of Aline, Alfalfa county, L. H. Stephens recovered a judgment against W. H. Kephart, in the sum of $77.18, with inter An information, alleging that the defendant est and costs. On November 3, 1913, an abdid take property levied upon by a deputy sher-stract of the judgment was filed in the office iff by virtue of an execution, and in the posses- of the clerk of the district court of Alfalfa sion of the agent of said deputy sheriff, "with county. On November 13, 1913, the clerk of the willful intention of obstructing" said deputy sheriff "in the discharge of the duties of his office," is not sufficient to charge a violation of section 2252, Rev. Laws, making it a misdemeanor for one to willfully delay or obstruct any public officer in the discharge or attempt to discharge any duty of his office. To be sufficient it must be alleged that the defendant knew at the time of the alleged act of obstruction that such property had been levied upon under the execution. [Ed. Note.-For other cases, see Obstructing Justice, Cent. Dig. §§ 19-28; Dec. Dig. 11.] the district court issued an execution on said judgment. John E. Sprague, a deputy sheriff, received the execution from L. H. Stephens, and with it a description of three cows supposed to be the property of W. H. Kephart. The deputy sheriff went to the Ratcliff farm about four miles east of Aline and by virtue of said execution levied upon two cows. Deputy Sheriff Sprague testified that he found these cows among other cows that he 2. OBSTRUCTING JUSTICE 1-ELEMENTS or thought belonged to the defendant Ratcliff, OFFENSE "Obstruct. and that he had no information or knowlTo "obstruct" a public officer means to op-edge concerning the ownership of the cows pose that officer. It does not mean to oppose or impede the process with which the officer is armed, or to defeat its execution, but that the officer himself shall be obstructed. [Ed. Note.-For other cases, see Obstructing Justice, Cent. Dig. § 1; Dec. Dig. 1. For other definitions, see Words and Phrases, First and Second Series, Obstruct.] 3. OBSTRUCTING JUSTICE 7-ELEMENTS OF OFFENSE-TAKING PROPERTY LEVIED ON. Where the evidence merely shows that a deputy sheriff levied on a certain cow and placed it in charge of an agent, and a stranger to the writ, claiming to own said cow, finds the cow running at large upon the highway and takes possession of said cow, such taking did not constitute the offense of obstructing a public officer in the discharge of the duties of his of fice. [Ed. Note.-For other cases, see Obstructing Justice, Cent. Dig. § 16; Dec. Dig. 7.] Appeal from County Court, Alfalfa County; F. M. Gustin, Judge. Lem Ratcliff was convicted of obstructing an officer, and appeals. Reversed and remanded, with direction to sustain demurrer to the information. Titus & Talbot, of Cherokee, for plaintiff in error. Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State. DOYLE, P. J. The plaintiff in error, Lem Ratcliff, herein referred to as the "defendant," was jointly charged with J. C. Fisher, W. H. Kephart, and Charles Woolery, Jr., with the offense of obstructing an officer under the statute providing that: levied upon, or whether they actually belonged to W. H. Kephart, the execution defendant; that immediately after taking possession of said cows he placed them in the possession of one D. C. Andrews, a few days later Andrews' cows broke out of his pasture, and with one of the cows taken by the deputy sheriff under the execution were straying along the public highway, when the defendant, Ratcliff, driving along with a load of wood, recognized this cow as one belonging to his wife and took possession of her, and, after dehorning her, placed her in charge of Charles Woolery, Jr., in Woods county. The next day the sheriff took said cow away from said Woolery. The defendant offered to prove, as a part of the cross-examination of the witness John E. Sprague, that Mrs. Lillian Ratcliff, wife of the defendant, demanded possession of said cows immediately after said levy, and said demand was refused; that said deputy sheriff had knowledge of Mrs. Ratcliff's ownership of said cows prior to the time that he took them under the execution; that, prior to the time that said deputy sheriff took said cows under said execution, he had knowledge that J. S. Fisher had a mortgage covering said cows; and that he so claimed proof the state objected, and the court susthem under said mortgage. To this offer of tained the objection. Several witnesses for the state testified that they saw the defendant driving a wagon "Any person who willfully delays or obstructs any public officer in the discharge or attempt loaded with poles, and when passing seven or to discharge any duty of his office, is guilty of eight cows running at large on the highway a misdemeanor.'" Section 2252, Rev. Laws. he stopped and hitched his team and drove The case was dismissed as to the other de away a red cow; that the other cows there fendants, and upon his trial the defendant belonged to Mr. Andrews. The execution was convicted and was sentenced to pay a was also introduced in evidence. The state fine of $35. The appeal is from the judgment rested, and the defendant demurred to the rendered upon the verdict. evidence "on the ground that the same is in ←➡For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes sufficient to prove the commission of any offense by the said defendant against the laws of the state of Oklahoma," and for which reason the defendant moved the court to direct the jury to return a verdict of not guilty, which demurrer and motion were overruled and exceptions allowed. Thereupon counsel for the defendant commenced to state what he expected the evidence for the defendant would show. After numerous objections by the county attorney, all of which were sustained by the court, the jury was excused from the courtroom. Thereupon counsel for the defendant made his statement and offered to prove by the defendant himself and five other witnesses, including his wife, that the two cows levied upon by the deputy sheriff, Sprague, were not the property of W. H. Kephart and were the property of Mrs. Lillian Ratcliff, and that the cow in question was raised by Mrs. Ratcliff and was her property and in her possession at the time the levy was made; that at said time the sheriff of Alfalfa county and his deputy, Sprague, had actual knowledge of such ownership. The state objected for the reason that the defense of ownership was not sufficient to justify the acts of the defendant. The court sustained the objection and allowed an exception. The defendant introduced no evidence. In view of the disposition which we deem it necessary to make of this appeal, we shall consider only 2 of the 22 errors assigned and argued in the brief. [1] The first error assigned is that the court erred in overruling the demurrer to the information. After alleging venue, time, issuance of the execution, and the levy upon one certain cow, the personal property of W. H. Kephart, by John E. Sprague, a deputy sheriff of Alfalfa county, and alleging that he placed her in charge of one D. C. Andrews for safekeeping, and that, while said cow was still in charge of said Andrews, it is alleged that the defendant took said cow "with the willful intention of obstructing the said John E. Sprague, deputy sheriff of Alfalfa county, Okl., in the discharge of the duties of his office, contrary to," etc. It is the contention of counsel for the defendant that there is no sufficient allegation that the defendant at the time of the alleged obstruction knew that an execution had been levied on the cow in question, and that, in order to properly charge an offense under the statute, it must be alleged that the defendant used forcible or quasi forcible means to secure possession of the cow in question. [2, 3] We think the defendant's contention is well taken. To constitute an offense under the statute, it must be shown that the defendant knew, at the time he is charged with obstructing such officer by taking the property in question, that the property had been taken by virtue of such execution. To willfully do an act implies that it be done by design or with set purpose. One might purposely do an act which would have the effect of obstructing an officer in the performance of his duties, in entire ignorance of the capacity in which such officer was acting. In the case of Davis v. State, 76 Ga. 721, the Supreme Court of Georgia held: "In the statute making it criminal to knowingly and willfully obstruct, resist, or oppose any sheriff, coroner, or other officer of this state, or other person duly authorized, in serving or attempting to serve or execute any lawful process, the word 'obstruct' must be construed with reference to the other words, 'resist or oppose.' structing, resisting, or opposing an officer, not which imply force. The crime consists in obmerely in impeding or defeating the execution of the process with which the officer is armed. Therefore, where a sheriff levied on certain oxen, and left them in a field under the care of an agent, and the person claiming to own them, together with another, privately took and carried them to an adjoining county in the absence of the sheriff, this did not constitute the crime of obstructing an officer in the execution of legal process.' We are of opinion that the demurrer to the information should have been sustained, and that the verdict was not sustained by sufficient evidence. A careful examination of the whole case impresses us very strongly with the belief that the controversy involved in this case is one which ought to have been determined by an appropriate civil action, and not by a resort to a criminal prosecution. and the case remanded, with direction to The judgment of conviction is reversed, sustain the demurrer to the information. ARMSTRONG and BRETT, JJ., concur. (58 Okl. 77) DAVIS et al. v. BOARD OF COM'RS OF (Syllabus by the Court.) Where suit is brought on an instrument in writing, for the payment of money, and a copy of such instrument is attached to the petition and made a part thereof, such copy should be considered as a part of the petition when construing the allegations thereof on demurrer. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 345, 944, 946, 947; Dec. Dig. 310.] 2. CONTRACTS 131 POLICY. The county commissioners of C. county accepted from D., H., and T. their bond, conditioned that, if the courthouse about to be erected in in the county seat, they would pay the county said county should be located on a certain block the excess cost thereof over and above $8,000, but not to exceed the penal sum of $15,000. The commissioners, relying thereon, acquired title to said block by purchase and condemnation proceedings at a total cost of $10,391.05, and thereupon instituted action against the makers of said bond to recover $2,391.05, the amount alleged to be due thereon. Held, that the bond was a valid obligation and not violative of public policy, there being no charge that the commissioners were improperly influenced, or that the public welfare was made subordinate to personal considerations or private gain, or that the location was made in disregard of the public interests. [Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 594-607; Dec. Dig. 131.] Error from District Court, Choctaw County; A. H. Ferguson, Judge. Action by the Board of County Commissioners of Choctaw County against J. W. Davis and others. Judgment for plaintiff, and defendants bring error. Affirmed. Cocke & Willis, of Hugo, for plaintiffs in error. Thos. S. Hardison and M. W. Gross, both of Hugo, for defendant in error. a general demurrer, which was overruled by the court, and, said defendants electing to stand on their demurrer, judgment was rendered for the plaintiff. [1] The petition is loosely drawn. Had a motion to make more definite and certain sustained. Aided, however, by the bond upou been filed by defendants, it should have been which the action was based, and a copy of which was attached, marked as an exhibit and made a part of the petition, the petition is sufficient as against a general demurrer, according to the rule heretofore announced in Grimes v. Cullison, 3 Okl. 268, 41 Pac. 355; Whiteacre v. Nichols, 17 Okl. 387, 87 Pac. 865; Long v. Shepard, 35 Okl. 489, 130 Pac. 131. [2] The remaining question is: Was the bond void as being against public policy? There is no charge of the receipt of a personal consideration by any public official connected with the transaction, or that the acceptance of the bond tended to improperly influence the commissioners in the perform to subordinate the public welfare to individual gain. So far as disclosed by the petition, the action of the public officials having to do with the location of the courthouse was whol SHARP, J. By the terms of a bond made August 12, 1911, J. W. Davis, J. S. Hastings, and C. A. Thompson, became obligated and bound unto Choctaw county in the penal sum of $15,000, conditioned as follows: That, | ance of their public duties, or to induce them in consideration of the board of county commissioners of Choctaw county locating the courthouse of said county in block 95 in the city of Hugo, the said obligors "agreed to deliver title to said board of county commis-ly free from any influence, except their judgsioners," to said block for a sum not exceed- ment of the suitableness of the location and ing $8,000, conditioned that the proper au- the guaranty of cost offered by the makers thorities would take all necessary action for of the bond. It is not charged that as a matthe acquirement of title to said block by con- ter of fact the location of the courthouse was demnation proceedings or otherwise, and, in improperly made or made in disregard of the event said board of county commissioners public interest. From the fact that the givwas required to pay a larger sum than $8,000 ing of the bond influenced the action of the to obtain such title, then and in that event board of county commissioners in locating the said obligors would pay the excess over the courthouse, it does not follow that the and above said sum of $8,000, with costs. public interests were not subserved, or that On the 27th day of August, 1912, suit was the taxpayers of the county were not the instituted to recover of the obligors on said beneficiaries of the transaction. Ordinarily, bond the sum of $2,391.05, alleged to be due a more suitable and better site could be prothe plaintiff by the makers on account of a cured with the larger means, incurred and breach of the conditions of said bond. The paid out on account of the bond, than with a petition charged the due execution of the lesser sum. Speaking generally, it is usually bond, the purpose of which, it was said, was necessary, in deciding upon the propriety of to insure the construction of the courthouse a public improvement, to consider, on the on block 95 of the city of Hugo, and the giv- one hand, the advantages which are likely ing of which caused and induced the county to accrue to the public from it, and, on the commissioners of said county to locate and other hand, the expense and burden which build the county courthouse on said block. would be imposed by reason of it. These It was further charged that two of the mak- considerations lie at the root of the question ers of said bond owned real estate near said whether it shall be done, and, if done, how courthouse, which, by reason of the nearby it shall be done. Where the amount of exlocation of the courthouse, was greatly in- pense is so great that the undertaking is creased in value; and that it was on this ac- abandoned, a public gain is lost by reason of count that said property owners caused and the obstacle presented. If the expense can in procured said bond to be given. The petition any way be reduced, so that the balance, aftsets forth the difficulty had in procuring by er weighing these counter considerations, is condemnation proceedings, the north one-half | in favor of the benefit from the burdens, then of said block, at a total cost, it appears, of $7,131.05, and charges that on account of the execution of said bond the makers thereof became and were liable thereon in the sum of $2,391.05, being the excess over and above the maximum cost of said block, as provided in the bond. To the petition defendants filed The pro the public reaps the advantage. greater or less burden to the affected tax- | member of the Supreme Court of the United payers would be an important circumstance States): to be taken into consideration in determining between different sites, in other respects equally suitable. It is not required that those who are benefited by an increase in the value of their property located in the vicinity of public buildings should not be permitted to contribute some part of the increase for the purpose of erecting said buildings, rather than that the whole of such advantage should accrue to them, and the expense be wholly borne by the taxpayers generally. It is not every influence upon official action that is against public policy. It is only that which is immoral in its inception, or tends to impair official integrity, or otherwise contra venes the established interests of society. In support of these views may be cited the following authorities: Thompson v. Board of Supervisors, 40 Ill. 379; Island County v. Babcock, 17 Wash. 438, 50 Pac. 54; Wells v. Taylor, 5 Mont. 205, 3 Pac. 255; Dishon v. Smith, 10 Iowa, 212; Meddis v. Board of Park Commissioners, 42 S. W. 98, 19 Ky. Law Rep. 817; State of New Jersey v. Mayor of Orange, 54 N. J. Law, 111, 22 Atl. 1004, 14 L. R. A. 62; Fearnley v. DeMainville, 5 Colo. App. 441, 39 Pac. 73; Pepin County v. Prindle, 61 Wis. 301-311, 21 N. W. 254; Beal v. Polhemus, 67 Mich. 130, 34 N. W. 532; State Treasurer v. Cross, 9 Vt. 289, 31 Am. Dec. 626; Odineal v. Barry, 24 Miss. 9; State v. Johnson, Adm'r, 52 Ind. 197; School District of Kansas City v. Sheidley, 138 Mo. 672, 40 S. W. 656, 37 L. R. A. 406, 60 Am. St. Rep. 576; Electric Plaster Co. v. Blue Rapids Township, 77 Kan. 580, 96 Pac. 68; Commissioners of the Canal Fund v. Perry, 5 Ohio, 56; George v. Harris, 4 N. H. 533, 17 Am. Dec. 446; Bull v. Talcot, 2 Root (Conn.) 119, 1 Am. Dec. 62; Marsh v. Chamberlain, 2 Lans. (N. Y.) 287. "There is no charge of the receipt of a personal consideration by any representative of the for that reason most of the cases cited for plaingovernment connected with the transaction, and tiffs in error are inapplicable. The action of the Secretary was wholly free from any infiluence, save his judgment of the suitableness of the location and the donations towards its cost. Those donations were to the government, the public itself, not to an official, and we perceive nothing in them that would tend to public detriment. Even if they influenced him, it does All reasonable inferences are to the contrary. not follow the public interest was not subserved. Obviously, a site at least as suitable and convenient could be procured with the larger means as with the smaller, and in all reasonable probability a better one, notwithstanding any claim to the contrary." After stating that any agreement to pay a corporation or its agents a premium for doing their duty, or a contract which restrains or controls the judgment of public officials, is invalid, it is further said by Judge Dillon, in discussing the question of public policy: tion of the expense of public improvements does "But a promise by individuals to pay a pornot necessarily fall within this principle, and such a promise is not void as being against public policy; and, if the promisors have a peculiar and local interest in the improvement, their promise is not void for want of consideration, and may be enforced against them." 1 Dillon on Mun. Corp. (4th Ed.) § 458. Contracts between public officials and private parties which subordinate the public welfare for personal benefit, or which are against the public good, are open to attack; but, where they involve nothing inconsistent with good morals and sound policy, no good reason is seen why they may not be made not, at least, in cases such as that at bar. It is not uncommon for individuals peculiarly benefited to unite with municipalities in making public improvements, building highways, digging drains and ditches, building bridges, In Currier et al. v. United States, 184 Fed. and providing sites for schoolhouses and oth700, 106 C. C. A. 654, the plaintiffs in error, er public buildings. Many public institutions who were the owners of property in Greely, in this state have been located as the result, Colo., which was selected as a site for a post partly at least, of local donations. See the office, sought to defeat the condemnation pro- acts of the Legislature locating the state receedings, instituted by the government to ac- formatory at Granite; the Eastern Hospital quire it, because the Secretary of the Treas- for Insane at Vinita; Industrial School for ury was induced to choose that particular Girls at Chickasha. In fact, the seat of govlocation by an agreement of owners of neigh-ernment and the permanent capitol of the boring property to pay the cost thereof in excess of the sum appropriated by Congress. The act authorized the Secretary to acquire a suitable site by purchase, condemnation, or otherwise, within the limit of $15,000. The award in condemnation proceedings exceeded $32,000. The restriction imposed by the act of Congress was in the amount of public funds that could be used for the post office building. The objection was that it was against public policy for private citizens to make donations under such circumstances, and the fact they did so invalidated the proceedings of the government. Judge Hook said in the opinion, concurred in by Justices state was located in Oklahoma City as the result of a free site for the capitol building and executive mansion, certain cash donations, and 650 acres of land (including site for capitol and executive mansion). Sess. Laws 1913, p. 264. From these and other acts of the Legislature, it is clear that the county commissioners of Choctaw county, in accepting from the plaintiffs in error their bond that the total cost of the site for the courthouse should not exceed $8,000, and that, if it did, the obligors on said bond would pay such excess not to exceed $15,000, violated no rule of public policy; but that the bond taken by them, and on account of which they obligation, which cannot be repudiated by its tiff had been sworn as a witness, and after makers. The opinions of this court in Baumhoff v. Oklahoma City Gas & Elec. Co., 14 Okl. 127, 77 Pac. 40, Hare v. Phaup, 23 Okl. 575, 101 Pac. 1051, 138 Am. St. Rep. 852, and Molacek Y. White, 31 Okl. 693, 122 Pac. 523, are not in conflict with the rule which we have announced, as a careful examination of the questions decided in those cases will disclose. For the reasons stated, the judgment of the trial court is affirmed. All the Justices con cur. CLAPPER et al. v. PUTNAM CO. et al. (Supreme Court of Oklahoma. May 23, 1916. (Syllabus by the Court.) 1 APPEAL AND ERROR TAKING PROCEEDINGS FOR NEW TRIAL. 345(1) — TIME FOR he had stated his name and the name of his coplaintiff, objection was made to the introduction of any testimony on the ground that the petition did not state facts sufficient to constitute a cause of action in favor of the plaintiffs and against the defendants, or any one of them. This objection was sustained. The plaintiff electing to stand upon their pleadings and refusing to amend, a motion was then made for judgment on the pleading and sustained, and final judgment was entered dismissing the action at plaintiff's cost. This judgment was entered on November 24, 1914, and motion for new trial was filed November 25, 1914. The motion for new trial was denied on December 21, 1914, and an order entered granting 60 days for making and serving a case-made. On February 11, 1915, an order was made extending time for serving case-made. The case-made was served on the 4th day of May, 1915, and signed and settled on May 24, 1915, and the Where a motion for a new trial is unneces-case-made and petition in error was filed in sary to present to this court for review an order or judgment appealed from, such motion and decision thereon by the trial court are ineffectual to extend the time within which to perfect an appeal. - this court on the 28th day of May, 1915. A motion is here urged by the defendants in error to dismiss the appeal on the ground: (1) That it appears from the case-made that [Ed. Note.-For other cases, see Appeal and the same was not lodged in this court withError, Cent. Dig. § 1895; Dec. Dig. 345(1).] in the 6 months after the date of the final 2. APPEAL AND ERROR 285 PRESENTING judgment rendered and entered in said cause QUESTIONS IN TRIAL COURT MOTION FOR in the district court of Oklahoma county; NEW TRIAL. (2) that it also appears from the record A motion for new trial is unnecessary to enable this court to review the action of the trial that the case-made was not served within 15 court in sustaining an objection to the introduc- days after the final judgment of the trial tion of any evidence by a plaintiff upon the court was entered, and was not served withground that his petition fails to state a cause of in an extension of time granted by the trial court within 15 days from the date of the entry of judgment; and (3) that the order of the district court made on February 11, 1915, extending the time for making and serving the case-made was without force, since the same was made after the expiration of the time allowed by law for serving the casemade. action. (Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1684-1690; Dec. Dig. 285.] 3. APPEAL and Error ☺~345(1) · TIME FOR [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 1895; Dec. Dig. 345(1).] Commissioners' Opinion, Division No. 2. Error from District Court, Oklahoma County; George W. Clark, Judge. Action by Marie J. Clapper and another against the Putnam Company and others. From a judgment for defendants, plaintiffs bring error. Dismissed. Geo. J. Eacock and W. J. Davidson, both of Oklahoma City, for plaintiffs in error. James K. Reed and Burwell, Crockett & Johnson, all of Oklahoma City, for defend ants in error. [1] It appears from the face of the record that the order overruling the motion for a new trial was made and entered 27 days after the entry of judgment dismissing the action, and therefore was made beyond the 15 days fixed by statute (section 5242, Rev. Laws 1910) for serving the case-made. If the motion for new trial was necessary, and the appeal was from the order denying a new trial, then the appeal was lodged in this court within the 6 months, and within the time provided by statute (section 5255, Rev. Laws 1910, amended by Session Laws 191011, p. 35, effective June 13, 1911); but, if the motion for new trial was not necessary, filing such motion did not enlarge the time for serving the case-made or for perfecting the appeal (Doorley v. Buford & George Mfg. Co., 5 Okl. 594, 49 Pac. 936; Manes v. Hoss, 28 Okl. 489, 114 Pac. 698; Healy v. Davis, GALBRAITH, C. This was an action to quiet title, commenced in the trial court by the plaintiffs in error against the defendants in error. After the issues had been settled, and the cause called for trial, and the plain- 32 Okl. 296, 122 Pac. 157), and the appeal For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |
