Chappell v. State

1942 OK CR 60, 124 P.2d 742, 74 Okla. Crim. 213, 1942 Okla. Crim. App. LEXIS 234
CourtCourt of Criminal Appeals of Oklahoma
DecidedApril 8, 1942
DocketNo. A-9945.
StatusPublished
Cited by9 cases

This text of 1942 OK CR 60 (Chappell v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chappell v. State, 1942 OK CR 60, 124 P.2d 742, 74 Okla. Crim. 213, 1942 Okla. Crim. App. LEXIS 234 (Okla. Ct. App. 1942).

Opinion

BAREFOOT, P. J.

The defendant, Joe Chappell, was charged jointly with W. T. Pemberton in the district court of Atoka county by indictment of a grand jury with the crime of obtaining money under false pretenses, demanded a severance which was granted, was tried, convicted and sentenced to serve a term of three years in the penitentiary and pay a fine of f476.25, and has appealed.

For a reversal of this case it is contended:

(1) The insufficiency of the indictment.

(2) The inadmissibility of the evidence of other crimes.

(3) The verdict and judgment are contrary to the law and the evidence.

The first assignment of error is based upon the fact that the indictment did not set out in full in the body thereof the false and fictitious written claim which wa$ presented by defendant to the county clerk of Atoka county, and a full and complete copy of the warrant issued by the county in payment of the false and fictitious claim. The indictment stated:

“That the said W. T. Pemberton and Joe Chappell, in the county and State aforesaid, and on the day and year aforesaid, acting jointly, together and in concert one with the other, did then and there knowingly, wilfully, wrongfully, fraudulently, designingly and feloniously, with the intent to cheat and defraud Atoka County, State of Oklahoma, out of the sum of |158.75, in good and *215 lawful money of the United States of America, obtained from Atoka County, .State of Oklahoma, the sum of 1158.75 by then and there unlawfully, designingly, fraudulently and feloniously representing to Atoka County, State of Oklahoma, that claim No. 64 against Atoka County, Oklahoma, dated September 1, 1939, which was paid by Avarrant No. 64 out of the Highway Construction and Maintenance Fund of Atoka County, Oklahoma, dated September 6, 1939, (a copy of said claim and warrant are attached hereto and made a part of this indictment), was a true and correct instrument and that the claim for services rendered and material sold as shown by said claim were true and correct and that the respective amounts claimed were true and correct when in truth and fact said instrument in writing was false, and that said representations contained in said claim were false and fraudulent and that the said W. T. Pemberton and Joe Chappell then and there well knew that said claim and warrant were false and fraudulent but that Atoka County, State of Oklahoma, relying upon said representations as contained in said claim No. 64 was a good and lawful claim and demand upon Atoka County, State of Oklahoma, and Avas induced to and did deliver to the said W. T. Pemberton and Joe Chappell the sum of 1158.75, as evidenced by said warrant No. 64, which sum of money was then and there the property of Atoka County, State of Oklahoma, and was paid over to the said W. T. Pemberton and Joe Chappell by the said Atoka County, State of Oklahoma, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Oklahoma.”

After a careful consideration of this indictment, we are of the opinion that the court did not err in refusing to quash the same and sustain the demurrer thereto, and in not sustaining the objection of defendant to the admission of any evidence under said indictment. While we are of the opinion that it is the best practice in criminal cases for written instruments upon which a prosecution in a criminal case is based to be copied in full *216 in the indictment or information, and that a copy of the same should not he attached thereto, as is often done in pleadings in civil cases, yet we cannot see how the defendant could have in any way been prejudiced by such action in this case. The indictment did set out the number of the claim and the date thereof; the number of the warrant and the date thereof, and that it was paid out of the “Highway Construction and Maintenance Fund of Atoka County”. It was also alleged in the indictment that “a copy of the said claim and warrant are attached hereto’ and made a part of this indictment.” Counsel in his brief states that no copy was attached to the indictment at the time of the trial. Attorneys for the state in their brief attach thereto a photostatic copy of the indictment which they claim shows that the copy had been attached, but at some time was detached therefrom. This we consider as immaterial for the reason that we are of the opinion that the matter is set forth in such a manner in the indictment as to be good against a demurrer or motion to quash. This is especially true in view of Oklahoma Statutes 1931, sections 2891 and 2892, O. S. A., and Oklahoma Statutes 1941, Title 22, §§ 409 and 410, which provide:

(1) “The indictment or information is sufficient if it can be understood therefrom: * * *

“6. That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended. * *

(2) “No' indictment or information is insufficient, nor can the trial, judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”

*217 We also call attention to the case of Horn v. State, 31 Okla. Cr. 347, 238 P. 966, 967, in which the court says:

“There is no good reason why the county attorney should not have attached, or pleaded in full, a copy of the forged release, as the information sets out the fact that it is recorded, giving book and page. A failure to do so is poor pleading. See Arnold v. State, 15 Okla. Cr. 519, 178 P. 897. However, the failure to set out the instrument could in no sense have been prejudicial to the defendant. For, if the description as alleged in the information failed to fully apprise the defendant of the instrument in question, the allegation of the book and page where the same was recorded afforded him an opportunity to fully ascertain the contents, and under this state of facts the error was harmless.”

The above statement applies with equal force to the case at bar. The defendant could have easily examined the records which were public documents in the office of the county clerk of Atoka county. He was in no way prejudiced by the failure of the indictment to set them out in full. The Arnold Case, supra [15 Okla. Cr. 519, 178 P. 899], was a forgery case. A copy of the indictment is set out and it states therein, “a true and correct certified copy of said false and forged release and instrument in writing aforesaid is attached hereto, incorporated herein and made a part hereof, marked ‘Exhibit A’ for identification.” The court refused to sustain a demurrer to the information, and this court held that it did not err in doing so. See, also, State v. Williams, 32 Minn. 537, 21 N.W. 746, 747, where it is said:

“This practice of attaching a copy of an instrument as an exhibit, instead of incorporating, it into the body of the indictment, is certainly novel in criminal pleading. It is a very loose and dangerous practice, and certainly not to be encouraged.

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Related

Hawkins v. State
1966 OK CR 139 (Court of Criminal Appeals of Oklahoma, 1966)
Wollaston v. State
1961 OK CR 12 (Court of Criminal Appeals of Oklahoma, 1961)
McMahan v. State
1960 OK CR 22 (Court of Criminal Appeals of Oklahoma, 1960)
Roulston v. State
1957 OK CR 20 (Court of Criminal Appeals of Oklahoma, 1957)
Lancaster v. State
1948 OK CR 121 (Court of Criminal Appeals of Oklahoma, 1948)
Bunn v. State
1947 OK CR 93 (Court of Criminal Appeals of Oklahoma, 1947)
Rice v. State
1945 OK CR 51 (Court of Criminal Appeals of Oklahoma, 1945)
Abbott v. State
1944 OK CR 47 (Court of Criminal Appeals of Oklahoma, 1944)
Byers v. State
1944 OK CR 28 (Court of Criminal Appeals of Oklahoma, 1944)

Cite This Page — Counsel Stack

Bluebook (online)
1942 OK CR 60, 124 P.2d 742, 74 Okla. Crim. 213, 1942 Okla. Crim. App. LEXIS 234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chappell-v-state-oklacrimapp-1942.