McKeehen v State

McKeehen v State
1915 OK CR 36
147 P. 784
11 Okl.Cr. 444
Case Number: No. A-2130
Decided: 04/24/1915
Oklahoma Court of Criminal Appeals

(Syllabus by the Court.)

1. INDICTMENT AND INFORMATION Duplicity Larceny.

2. TRIAL Refusal of Instructions Covered.

Appeal from District Court, Marshall County; Thos. D. McKeown, Assigned Judge.

Ed McKeehen was convicted of the larceny of live stock, and appeals. Affirmed.

Stephen C. Treadwell, 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 was convicted of the larceny of two heifers, and his punishment fixed at imprisonment for a term of three years in the penitentiary. From the judgment rendered on the 16th day of May, 1913, in pursuance of the jury's verdict, he has appealed to this court. The indictment charged that:

"One Ed McKeehen did feloniously, by fraud and stealth, take, steal, and carry away, from the lawful possession of C.P. Swinney and without the consent of the said C.P. Swinney, two domestic animals, to wit, two heifers, the personal property of the said C.P. Swinney, with the felonious intent of him, the said Ed McKeehen, then and there to appropriate the same to his own use and to deprive the true owner thereof, contrary to," etc.

The overruling of the defendant's demurrer to this indictment is the first error assigned. Counsel for the defendant contends

Page 445

that in alleging the larceny to have been committed "by fraud and stealth," and also alleging, "to deprive the true owner thereof," makes the indictment bad for duplicity. We do not think that this contention is tenable. Under our statute it is only necessary to allege in an indictment or information the facts constituting the offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended and the court to pronounce judgment according to law on a conviction. In a prosecution of this character the indictment is predicated upon the statute defining the crime of larceny of domestic animals, and the indictment here charges all the essentials of the statutory offense; that is, the ownership of the animals stolen and the felonious intent on the part of the taker to deprive the owner thereof and to convert the same to his, the taker's, own use. Crowell v. State, 6 Okla. Cr. 148, 117 P. 883; Caido v. State, 7 Okla. Cr. 139, 122 P. 734; Bayless v. State, 9 Okla. Cr. 27, 130 P. 520. The indictment does not, in any manner, charge the crime of grand larceny, for no value of the property is alleged. The words "by fraud and stealth" do not make it duplicitous and in no way affect its sufficiency.