Ingram v. State

3 P.2d 737, 51 Okla. Crim. 143

Opinions

ROWE, Special Judge.

Tbe plaintiff in error, Sam Ingram, hereinafter called defendant, was charged by information with the crime of obtaining money under false pretenses, alleged to bave been committed on or about the 20th day of June, 1925, in Osage county. He was charged jointly with W. G. Streetman, who was then deputy county treasurer of Osage county. The defendant was tax ferret of Osage county, having been duly employed by the county commissioners of said county. ' A severance was had, and the defendant took a change of venue to Tulsa county, where he was tried and convicted; the jury, however, being unable to agree on the punishment which was left to the trial court. The court fixed the defendant’s punishment at two' years in the penitentiary, and he was duly sentenced on said verdict and judgment. Motion in arrest of judgment was duly filed and overruled, as well as motion for new trial. To reverse the judgment rendered in pursuance of the verdict, he has duly lodged his appeal in this court.

The undisputed facts are that the defendant had been employed by the board of county commissioners of Osage county as tax ferret, having duly entered into a contract of employment with said board on the 6th day of June, 1923, for a period of two years, and later employed for a period of two additional years; that, under the contract, he was entitled to 15 per cent, of all sums collected from omitted property which he caused to be placed on the tax rolls. The evidence on the part of the state, in substance, is that on the 20th day of June, 1925, an original tax receipt in the sum of $19,635.07 was issued to the Sinclair Oil & Gas Company for the last half payment of certain taxes in Osage county. The original tax receipt showed certain amounts distributed to the state, county, townships, and municipality, and also school districts in certain sums, which would be actual proportionate distributions. While a duplicate of said tax receipts showed such distributions, less 15 per cent., which was shown on tbe purported duplicate tax receipt as fees for tbe tax ferret. There is no conflict in the evidence as to- tbe issuance of tbe tax receipts and duplicates different from each other. Tbe deputy county treasurer, Streetman, testified that he made out tbe original and duplicate and that tbe duplicate was different from tbe original, in that tbe duplicate showed tbe tax ferret fees. The defendant also testified that be bad requested Streetman to make out tbe original account showing tbe tax ferret fees, and gave as his reason for this that Mr. Orr, tax attorney for tbe Sinclair interests, was a friend of bis and that it might be embarrassing to Mr. Orr if it showed that tbe property in question had been omitted from the tax roll and placed there by tbe tax ferret. Mr. Orr further testified that be bad mailed tbe list of property in tbe regular way to tbe proper official. There is no dispute as to tbe duplicate showing tbe tax ferret fees, and this was a part of tbe record in tbe treasurer’s office. It is also- admitted that the defendant as tax ferret received tbe sum of |2,945.25, as fees out of this particular transaction. Tbe defendant testified that he was acting in good faith, that tbe duplicate is exactly like tbe tax roll, and that, when be found tbe Sinclair Company did not have this property listed, be caused tbe same to be placed on tbe tax roll, in tbe usual and customary manner, and that be was following the custom that then prevailed in Osage county and other counties.

Tbe deputy county treasurer, Mr. Streetman, testified that be made, issued, and delivered tbe tax receipts; that he thought there was nothing wrong in tbe way tbe matter was bandied; that be bad every reason to and did believe that tbe property bad been discovered by the tax ferret in tbe usual way. Tbe defendant further testified that be had gone to Mr. Orr’s office to check some infor mation he had gotten relative to certain tank farms, and that he had complete information as to the taxable property in the county, of the Sinclair Company; that, after the tax roll had been made up and certified by the county treasurer, he examined it and found that the Sinclair Company’s property was not on the roll; he did not know the company had mailed its return to the county assessor; and that he put the property on the tax roll as discovered by him in accordance with information he had gotten prior thereto. A deputy state examiner and inspector, Mr. Patrick, testified that at the time of this transaction the business of the tax ferret was handled in Osage county according to the general custom throughout the state.

The testimony further shows that, in some manner not shown in evidence, certain property of the Sinclair Oil & Gas Company had been omitted and was not shown on the tax roll. The evidence is that the return was made by this company and mailed in due course to the assessor. Evidence further tends to show that the property was placed on the tax roll and the defendant followed the custom and same course pursued in such matters for the past several years. It is urged on the one hand that the omission was due to a clerical error of a public official, while the state, at least, advances the theory that the omission was due to a scheme or plan of the tax ferret and public official of Osage county to defraud the county.

The defendant is prosecuted under section 9771, C. O. S. 1921, which is as follows:

“If any county treasurer in this state or his deputy, or any other person shall knowingly and willfully make, issue, and deliver any tax receipt, or duplicate tax receipt, required by this chapter to be issued 'by fraudulently making the tax receipts and its duplicate * * * different from each other with the intent to defraud the state of Okla- boma or any county in said state or any person whomsoever, such treasurer or deputy treasurer or other person shall he deemed guilty of a felony, and on conviction thereof before any court of competent jurisdiction of this state, he shall be sentenced to imprisonment in the penitentiary for a time not less than one year nor more than five years, in the discretion of the court.”

Under the law in this state, the county treasurer has authority: A. To issue tax receipts. B. To employ deputies that have the same authority as the county treasurer has. C. To' employ additional help and other clerks who are not denominated deputies, but are merely a part of his clerical force.

It will be observed that under section 9798, O. O. S. 1921, a tax ferret is employed by the board of county commissioners to assist the officers of the county in discovering property not assessed for taxation. He is in no sense a clerk of the county treasurer, nor could he be called a public official, in the sense that a treasurer, for instance, is a public official.

It is contended by defendant, under the first two specifications of error, to wit, that the court erred in overruling defendant’s demurrer and that the court erred in refusing to arrest the judgment, that the tax ferret could not legally be charged with the commission of this offense, because this statute pertains only to the county treasurer, his deputies, or additional help employed by him.

It is urged that no other person could have legal access to the county records and receipt book or authority to issue such receipts, and therefore, if a person not falling under the above class were to issue such receipt, he would be guilty of forgery, and that the defendant, as tax ferret, does not fall under this class, and could not, therefore, be guilty of the crime charged in the information.

Defendant further contends that the doctrine of ejus-dem generis should apply in the construction of this section ; that is to say, that, where there is an enumeration of specific things followed by some general words or phrases, such general words or phrases are held to refer to things of the same kind and class as those specifically enumerated and mentioned. It seems apparent that this statute was intended to reach the deputy or clerks, who were actually connected with the county treasurer’s office, and employees in the county treasurer’s office. The defendant was a tax ferret, as shown by the evidence and as alleged in the information. He certainly had no connection with the office of county treasurer. The rule as announced by the Supreme Court of Colorado in the case of Gibson v. People, 44 Colo. 600, 99 Pac. 333, 335, seems to be in line with modern thought and supported by the great weight of authority. In that case the court held: “The familiar general rule, which is enforced in this jurisdiction, is that, where words of general import follow specific designations, the application of the general language is controlled by the specific. This is but a rule of construction, and is not allowed to defeat the plain legislative will; yet, where the legislative intent is doubtful, resort to rules of construction is proper. Applying this rule to this statute, and bearing in mind that its prime purpose is to provide for delinquent children, as nearly as may be, the care and training which their parents should give but which they do not afford, and to that end substituting governmental authority for parental control, it would seem entirely clear that by ‘or any other person’ the General Assembly meant other like persons; that is, such other persons as occupy towards the delinquent a relation similar to that of parent, legal guardian, or custodian, and upon whom rests the obligation of training either arising from the natural ties or created by law. The persons specified by no means exhaust the whole genus, but it is apparent that there are other persons who may occupy towards the delinquent a relation similar to that sustained by those enumerated. For example, older brothers and sisters, other blood relatives, teachers, nurses, and companions, none of whom are enumerated, but are of the same genus.”

In the case of State v. Jett, 69 Kan. 788, 77 Pac. 546, 547, the court said:

“It is a familiar rule of interpretation that, where particular words are followed by general ones, the latter are to be held as applying to persons and things of the same kind with those which precede. The acts charged against the defendant do not fall within the statute, under the interpretation there given, and we do not think it states an offense.”

The Supreme Court of Indiana, in the case of Wiggins v. State, 172 Ind. 78, 87 N. E. 718, in construing a statute in that state, announced the rule as follows:

“Where words of specific and limited signification in a statute are followed by general words, the general words will be construed as embracing only such persons, places, and things as are of like kind or class to those designated by the specific words, unless a contrary intention is clearly shown.

“Under Burns’ Ann. St. 1908, § 2356, making it unlawful for a male person to entice a female to enter tony house of prostitution, assignation, saloon or wine room where intoxicating liquors are sold, or any other place for vicious or immoral purposes,’ an affidavit is sufficient which charges accused with enticing a female £to enter into a certain house situated at No. 202, East Broadway street’ in a city, county, and state named, Tor the purpose of having sexual intercourse with her,’ as tony other place’ means place of like character with those previously enumerated.”

In construing this section, it is apparent that the Legislature intended to coyer a case where a person was in the office, such as a clerk, and who was not a deputy, in the event such persons made, issued, and delivered any tax receipt or duplicate, by making the original different from the duplicate, with intent to defraud the county. This being true, it follows that the defendant does not come within the purview of this section. This seems all the more apparent when the evidence is considered in connection with the law. It appears from the evidence that the defendant Streetman, deputy county treasurer, made, issued, and delivered the tax receipt, and that the defendant Ingram at the most only advised and suggested to Streetman that he make the receipt as he did, and, of course, unless Streetman was guilty of the offense, defendant Ingram could not possibly be. Johnson et al. v. State, 24 Okla. Cr. 326, 218 Pac. 179. It will be remembered that in this information the defendant was charged jointly with .Streetman with the intention on the part of both defendants to defraud Osage county.

Following this rule of statutory construction, when taken in connection with the plain intention of the Legislature in various statutes quoted and referred to in this opinion, relating to the county treasurer, his deputies and clerks, it would seem to be the plain intention of the Legislature to make it possible to- convict any person in the office of the county treasurer who made, issued, and delivered any tax receipt or duplicate by making the original different from the duplicate with intent to defraud the county. In fact, if the words, “Or any other persons,” were not included in the statute, if such act were committed by a clerk in the office who was not a deputy, it would not apply.

It is further contended by the defendant that the evidence is insufficient to sustain the verdict of guilty. The information in this case charged that the defendants Ingram. and Streetman “did then and there acting together, knowingly, willingly, wrongfully, unlawfully and felo-niously make said tax receipt and its duplicate, or paper purporting to be its duplicate, different from each other with the unlawful and felonious intent, then and there of them, the said defendants, to defraud the county of Osage, state of Oklahoma.”

It will be noted that a material allegation in the information is that the defendants performed the act alleged in the information with the intent to defraud Osage county. The evidence shows that, at the time the Sinclair Oil & Gas Company mailed its check to the county treasurer of Osage county, its property had been listed on the official tax roll of the county by the tax ferret, the defendant Ingram, and from the official records, as they then existed, the defendant was entitled to his fees when the money was paid, without regard as to how the original or duplicate receipt was issued. If the defendant Streetman had made out the receipt according to the records of Osage county as they existed, the defendant Ingram would have been entitled to his fees notwithstanding the manner and way the receipts were made, as shown by the evidence. It is plain to be seen from the evidence, that the mere act of making the original receipt different from the duplicate did not and could not have defrauded Osage county. The evidence further shows that the act of making the original receipt different from the duplicate did not and would not have defrauded the Sinclair Oil & Gas Company, but, of course, this is not charged in the information.

It was the theory of the state that the defendant Ingram pretended to discover the property of the Sinclair Oil & Gas Company, when as a matter of fact be did not do so. There is some suspicion that this could have been true, although there is no direct evidence in the record to support this theory. Granting for the moment that this theory is true, would that be sufficient to sustain a conviction of the defendant on the crime charged in the information? It appears in the evidence that the assessment was put on the assessor’s roll, showing that the assessor’s list mailed by the Sinclair Oil & Gas Company was evidently received by the assessor and put on the roll by him, but the same does not appear on the official tax roll in the county clerk’s office. There is no evidence in the record that the defendant Ingram had anything to do with the failure to transfer the entry from the assessor’s roll to the official tax roll. That was not the duty of the defendant, and there is no direct evidence to show that he had any connection with it. There is some evidence that the defendant at times occupied the assessor’s office as well as the county treasurer’s office, but is this sufficient to sustain a conviction or connect the defendant Ingram with the failure to transfer the entry as it should have been done or to connect the defendant Ingram with the offense charged in the information? The question naturally arises, Did the act of the defendant Ingram and the defendant Streetman in issuing different receipts defraud Osage county, and is it necessary for the state to support the allegations in the information that the defendants acted together, issuing different tax receipts with intent to defraud Osage county? It is well settled that the state cannot set forth one state of facts in an information and sustain a conviction on another state of facts; that is to say, facts necessary to constitute a public offense must be charged in the information and supported by sufficient evidence, whether direct or circumstantial. Cheeves v. State, 5 Okla. Cr. 361, 114 Pac. 1125; Furrh v. State, 27 Okla. Cr. 283, 226 Pac. 1065; State v. Mitten, 36 Mont. 376, 92 Pac. 969.

In the light of the evidence and placing the most favorable construction on the same, the most that can be said is that Ingram defrauded Osage county by pretending to discover the property when in fact he did not discover it; however, there is no evidence to show that the issuing of the receipts different, as charged in the information, would have made any difference. It is also well settled that, where specific intent is an essential element of the public offense, it is necessary to prove the same whether by direct or circumstantial evidence. Patterson v. State, 25 Ariz. 276, 215 Pac. 1096, 35 A. L. R. 366.

In the case of Patterson v. State, supra, the rule seems to be clearly stated, and is as follows, to wit:

“Where an information charged defendant with obtaining money from A. by making, uttering, and delivering to her a draft on a non-existent'drawee, evidence that he procured A. to indorse the draft and that he then obtained the money from a bank in which she had no account and which was not then charged to A., though she later repaid the bank, was a fatal variance.”

In the case of State v. Taylor, 136 Mo. 66, 37 S. W. 907, 909, the court said:

“Nothing is better settled than that, having alleged a burglary to* have been done with an intent to perpetrate a certain felony, evidence of another independent felony cannot be received. East says: ‘But, whatever be the felony really intended, the same must be laid in the indictment and proved agreeably to the fact. * * * And so, if it be alleged that the entry was with intent to commit one sort of felony, and the fact appear to be that it was with intent to commit another, that is not sufficient.’ ”

In the case of Simpson v. State, 81 Fla. 292, 87 So. 920, the court said:

“Where a specific intent is required to make an act an offense, the doing of the act does not raise a presumption that it was done with that specific intent.

“Where a statute makes an offense to consist of an act combined with a particular intent, that intent is just as necessary to be proven as the act itself, and must be found by the jury as a matter of fact before a conviction can be had.”

In the case of Roberts v. People, 19 Mich. 401, the court said:

“We think the general rule is well settled, to which there are few, if any, exceptions, that when a statute makes an offense to consist of an act combined with a particular intent, that intent is just as necessary to be proved as the act itself, and must be found by the jury, as matter of fact, before a conviction can be had.”

If, therefore, the proof in this case established the fact that the defendant Ingram pretended to discover this property, but did not in fact discover the same, and collected tax ferret fees thereon, although he was not justly entitled to collect the same, under the rule thus announced, we are forced to the opinion that the evidence is not sufficient to support a conviction under the information in this case. The mere doing of an act where specific intent is required does not raise a presumption that the act was done with that specific intent. It is argued on behalf of the defendant in error that, in view of the statutes in this state in which the distinction between accessories and principal and principals in the first and second degree in cases of felony is abrogated, and all persons concerned in the commission of a felony whether they commit the act or aid and abet in its commission are principals and must be prosecuted as such, and further, that an accessory may be prosecuted, tried, and punished, though the principal be neither prosecuted nor tried, or though he may be tried and acquitted, would apply in this case and that the conviction should be sustained on this theory of the law. We differ with this view for the reason that it seems well settled that the statutes pertaining to accessories and principals do not affect the rule that a person who' is present aiding, abetting, and advising cannot be convicted of the offense unless the one who actually committed it was guilty, unless, of course, the proof shows that he acted through an innocent agent, and there is no proof as to this in the instant case. The allegations as stated in the information are that the offense with intent on the part of Streetman and Ingram to defraud Osage county was committed jointly; however, there is no dispute in the evidence that Streetman in fact committed the act and Ingram only aided, advised, and counseled the same. While under our statute it is not necessary that iStreetman be convicted or even tried in order to convict Ingram, yet, before a verdict of conviction against Ingram would be permitted to stand, in view of the fact that he was tried separately and in view of the allegations in the information, the evidence must have been sufficient to have warranted a conviction against Streetman, his codefendant. Under the evidence, it is well-nigh impossible to determine or see whether the jury convicted the defendant of the crime charged or whether they convicted him on the theory that he pretended to discover the property of Sinclair & Co., when in fact such was not the case. We do not think the evidence is sufficient to have warranted a conviction of Streetman under the allegations contained in the information, and it is therefore totally insufficient to sustain the conviction of the defendant of the crime charged in this case.

It is further urged that the trial court erred in giving instructions numbered 9, 13 and 19 and especially in- struetions 13 and 19. If it were not necessary to reverse this case on other grounds heretofore pointed out herein, we are of the opinion that instructions 13 and 19 were erroneous and prejudicial to the rights of the defendant when considered in connection with the allegations contained in the information and the evidence in this case.

While the evidence shows that the defendant would still have been entitled to his fees, in view of the actual showing on the record, that is to say, the act of making the original receipt different from the duplicate did not and would not have defrauded Osage county, even though the state’s theory was correct, and while the defendant does not come within the purview of the statute under which he was prosecuted, we are not passing on the guilt or innocence of this defendant as to any other charge.

For the reasons herein stated, this cause is reversed and remanded.

DAVENPORT, J., concurs.