Ellis v State

Ellis v State
1927 OK CR 313
260 P. 93
38 Okl.Cr. 243
Decided: 10/22/1927
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Larceny Information for Larceny by Fraud. Where in an information for larceny the property is alleged to have been taken by fraud, it is not necessary to set out the fraudulent acts relied upon as constituting the fraud.

2. Indictment and Information Test of Sufficiency of Information. The true test of the sufficiency of an information is not whether it might possibly have been made more certain, but whether it alleges every element of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet.

3. Robbery "Robbery" Distinguished from "Larceny from Person." To constitute "robbery" as distinguished from "larceny from the person," there must be force, violence, or intimidation in the taking.

4. Same Merely Snatching Property from Another's Hands, Without Violence or Putting in Fear, not "Robbery." Merely snatching the property from the hands of another, without violence or putting in fear, is not "robbery," except where there is violence to the person of the owner, or where the property snatched is so attached to the person or clothes of the owner as to afford resistance.

5. Same Force and Violence Must be Concomitant with Taking Property. The force and violence which is essential to the crime of robbery must be concomitant with the taking of property from the person of another.

6. Larceny Evidence Supporting Conviction of Grand Larceny of Note. Evidence held sufficient to support a conviction for grand larceny.

Appeal from District Court, Comanche County; A.S. Wells, Judge.

P.C. Ellis was convicted of grand larceny, and he appeals. Affirmed.

P.C. Ellis, appellant, was convicted of the crime of grand larceny. Motion for new trial was duly filed and overruled. June 9, 1925, the court pronounced judgment

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and sentenced appellant to imprisonment in the penitentiary for the term of two years.

The information charges:

"That at and within said county and state, on the 3d day of January, 1925, E.C. Ellis, then and there being, did then and there willfully, unlawfully, and feloniously by fraud take, steal, and carry away from the possession of G.E. Young the following described personal property, to wit: One promissory note dated at Lawton, Okla., January 26, 1924, for the sum of $300, due October 26, 1924, and payable to one J.H. Young, signed by E.C. Ellis and Minnie Ellis, with a credit on the principal thereof of the sum of $17.70, the personal property of the said J.H. Young, of the value of $282.80, with the unlawful, fraudulent, and felonious intent of him, the said E.C. Ellis, to deprive the said owner of said note and to convert the same to his own use, contrary to," etc.

The demurrer thereto was interposed and overruled.

It appears that the defendant and prosecuting witness were both residents of the city of Lawton at the time the offense is alleged to have been committed. The defendant was running a wagon yard in Lawton; the prosecuting witness was in the loan and collection business for himself and his brother, J.H. Young; that the defendant had borrowed some money from J.H. Young and had given some promissory notes, one of which was for $300, due 10 months after date, and dated January 26, 1924. It was this note that G.E. Young had in his possession for collection as agent for his brother, J.H. Young.

G.W. Young testified:

"A. Well the note was due October 26th, and about that time I saw him, and he said he was going to pay it in a few days.

"Q. When was that, in October? A. Yes, sir; he said he would pay it in a few days.

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"By the Court: That was the year 1924? A. Yes, sir; so I saw him two or three times on the street, and every time I saw him he said I will be in in a few days and pay that note, so it run along until about January 3, 1925, and I heard he had bought out a wagon yard on the corner of Second and F, and I went down there and walked to his yard, spoke to him, and he said, `Come in. I will try to pay you this time.' I walked in to his house with him, and as soon as we was in there he said, `How much is it?' I said, `I don't know; there is some credit on the note; I will have to figure it up.' I figured it up, and said, `It is $282.30, the balance,' so I had a bunch of papers like these, copies of chattel mortgages and figures on them, and he said, `Let me have those figures; I want to go out and see my boy and let him run it over,' and I showed him, and the boy wasn't there, and we went out, and he was looking through the papers, and he went back in the house, so he said he guessed those figures were all right, so he says, `what is it you want me to do? go to the bank and get the money, or give you a check?' I said, `Either one will do,' so he reached down in his pocket with his right hand, I presume got a check book, I couldn't see it and fingered around a little like he was getting a pencil, I gave him mine and he wouldn't take it, and he said, `Where is that note?' I said, `I have it,' and he said, `Let's see it,' and as I had it like this he grabbed it out of my hands and stuck it in his pocket. I said, `You can't do that,' and he said, `Hell, yes,' and he struck me right here, and the next thing I knew I was on the floor. He jumped on top of me and said, `I am a going to kill that son of a bitch,' I guess that lasted two or three minutes. I saw some feet out at the door, I begged these men to stop this man, he said, `Stop!' and I said, `I hadn't done a thing to this man, he is trying to kill me,' and he stopped, I crawled over a chair, and he ran in front of me and said, `You are not going,' and put himself in front of the door. I said, `You haven't power to hold me here,' and some man said, `You had better let him go,' and he said, `I am going to have the police down after you,' and I said, `We can both do it, and after I got out the door I asked for my papers, and he wouldn't give them up, and went down the street, and the patrol wagon was down there, and Ellis was in it.

"Q. What was the amount of that note? A. $300.

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"Q. How much was due on it at that time? A. $282.90.

"Q. Who was the owner of it? A. J.H. Young, my brother.

"Q. How did you happen to have possession of it? A. He was out of town, he don't live here, and mailed it to me for collection.

"Q. Where did these transactions occur? A. In Comanche county, state of Oklahoma.

"Q. Have you ever received that note back? A. No, sir; I haven't seen it since that day.

"Q. Was that note secured in any way? A. Yes, sir.

"Q. How? A. Twenty-five head of cattle and plow tools."

Denneth Cash, a nephew of George Young, testified, in corroboration of his uncle, to the following effect:

"Q. Do you remember on or about the 3rd day of January, were you at Mr. Ellis' place of business? A. Yes, sir.

"Q. Tell what took place there between Mr. Ellis and Mr. Young, as you remember. A. Well I came in just as they were going back from the wagon yard into the office there, and I stood at the door, and I heard Ellis say, `Well, I guess it is all right; do you want me to give you a check, or go down to the bank and get the money?' and Uncle George said, `Your check will be all right,' and then Mr. Ellis appeared, like he reached in his hands as if he was going for his check book, and finally he said, `Have you got this note with you?' and Mr. Young said, `Yes,' he said, `Where?' and he said, `Right here in my pocket,' and Mr. Ellis said, `Let me see it,' and Mr. Young reached and pulled out a paper, and Mr. Ellis grabbed it and put it in his hip pocket, and Mr. Young said, `You cannot do that,' and Ellis said, `Hell, yes, I can,' and hauled off and hit him in the face and knocked Mr. Young on the floor and jumped on top of him."

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The defendant testified in his own behalf, in substance, as follows: That about the 1st of January, at Parks drug store, he paid George Young the note and received from him a copy of the mortgage and the note; that on the date alleged George Young came into the wagon yard not for the purpose of looking at the note to see if he did not make a mistake as to the amount of interest due on said note; that witness told him that he did not intend to pay any more interest, and George Young said, "If you say you don't owe it, Ellis, you are a liar," then witness struck him.

The testimony of two witnesses, John Baker and Tom Brady, tended to corroborate the story of the defendant as to the payment of the note.

The jury returned a verdict of guilty, the punishment was left by the jury to be fixed by the court.

J.F. Thomas, for plaintiff in error.

George F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.

DOYLE, P.J. (after stating the facts as above). The overruling of the demurrer to the information is assigned as error.

Under the provisions of our Code (sections 2556 and 2564, C.S. 1921), the true test of the sufficiency of an information is not whether it might possibly have been made more certain, but whether it contains every element of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet.

In Bivens v. State, 6 Okla. Cr. 521, 120 P. 1033, it is held:

"Where, in an indictment for larceny, the property is charged to have been taken by fraud, it is not necessary

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to set out the fraudulent acts relied upon as constituting the fraud."

In our opinion, the information sufficiently charges the crime of larceny and the demurrer thereto was properly overruled.

The only other assignment of error is that the verdict is contrary to the law and the evidence. In the oral argument and brief it is contended that if the proof shows that the defendant is guilty of anything, it is that he is guilty of the commission of the crime of robbery, and not the crime of larceny.

After an examination of the record we find that the testimony for the state shows that the defendant used force and violence to retain possession of the stolen property after it had been taken by fraud from George Young.

In the case of Monagham v. State, 10 Okla. Cr. 89, 134 P. 77, 46 L.R.A. (N.S.) 1149, this court held:

"To constitute `robbery,' as distinguished from `larceny from the person,' there must be force, violence, or intimidation in the taking. Therefore, where there is no evidence tending to show that the defendant obtained or retained the personal property alleged to have been taken by force or violence or by putting in fear, the crime is grand larceny, and not robbery, and a verdict of guilty of robbery in the first degree is contrary to law and the evidence.

"Merely snatching the property from the person of another, without violence or putting in fear, is not robbery, except where there is some injury or violence to the person of the owner, or where the property snatched is so attached to the person or clothes of the owner as to afford resistance.

"The force and violence which is essential to the crime of robbery must be concomitant with the taking of property from the person of another."

If the owner of personal property parts with the possession of the same for a particular purpose, and the person

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who receives the same 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 is, the crime is larceny.

It was the peculiar province of the jury to pass upon the credibility of the witnesses, and under the settled rules of this court, we cannot disturb the verdict of the jury, where there is any substantial evidence to support it.