McSpadden v. Territory

DOYEE, J. (after stating the facts as above). 'The first three assignments of error present a question as to the regularity of the transfer of the case, as made, from the district court of Roger Mills county to the district court of Beckham county. *232 Section 2, art. 3, ch. 16, Sess. Laws 1907-08, provides: “Sec. 2. That all those criminal cases, transferred from the courts of the territory of Oklahoma and the United States Courts in Indian Territory to the courts of this state, as transferred by acts of Congress and accepted by the Constitution, which would have been properly triable in any other court of any county, or district of this state, had such suit or proceeding been commenced after the admission of this state into the Union, may, upon the application of the defendant therein, filed with the clerk of the district court within ninety days after the passage and approval of this act, be transferred to the proper court of such county or district for trial.” The defendant, under this provision, had the right to transfer the case, if exercised in 90 days. But it is further provided (chapter 16, art. 2, Sess. Laws 1907-08) : “Sec. 5. In all criminal cases pending in any county where the venue properly lies in another county, the court may, upon motion of the county attorney, or upon its own motion, transfer such cause to the county of proper venue; such transfer, in all respects, shall be made in like manner as is now provided by law.” It is provided in chapter 16, art. 1, sec. 8, Sess. Laws 1907-OS, that: “Sec. 8.' When an order for a transfer of any cause or proceeding shall be made, the judge or clerk shall make out a descriptive list of all the papers in such cause, of all orders and judgments made therein, with their dates, and a bill of costs that shall have accrued; shall carefully and securely put all of the papers, with a copy of the descriptive list all orders and judgments or a true copy thereof, bill of costs, and all docket entries in such case, certified to as being the complete record of such cause or proceeding as shown by the record of such court, into a package, to be well covered and sealed up, and directed to the court or the clerk of the court to which such cause or proceeding is ordered to be transferred; and shall, if not otherwise directed by the court making the order, forward the same by registered mail to the court to which such cause is transferred.” The first two provisions are in harmony, one with the other. If the defendant does not avail himself of the right to transfer, the court may, on motion of the county attorney, or upon its own motion, transfer a criminal case to the county of proper venue. *233 We think the order to transfer the case to Beckham county was properly made. When such order of transfer is made in a criminal case, it is the duty of the judge or clerk to make out a descriptive list of all the papers in such case and all orders and judgments made therein and all docket entries in such case, etc., certified to as being the complete record of such cause or proceeding, as shown by the records of such court, and transmit the same, duly certified, to the court, to which such case is transferred. That was not done in this case. For this reason, the defendant’s motion to retransfer said case should have been sustained. It was the duty of the court, upon the motion of the defendant, to require the clerk of the district court of Roger Mills county to make up and transmit to the district court of Beckham county a full transcript of the record and proceedings, etc., duly ■certified, as required by this provision of the statute. The district court of Beckham county, having no sufficient record on which to proceed to trial, was without jurisdiction of the case; and it was error to overrule the defendant’s objection to the introduction of evidence against the defendant by the state. Error is assigned in the action of the court in overruling the defendant’s demurrer to the evidence. We think the evidence ■sufficient to go to the jury. Finally, it is contended that the court erred in its instructions to the jury. The charge given is correct, as far as it goes; but we think that, under the evidence in the case, the court should have further instructed the jury in regard to the theory of the ■defense. If the testimony of the defendant Engle as a witness for the state, and the defendant on his own behalf, is true, then the defendant was not guilty of a larceny, but only of a trespass; and the conviction was wrong. They admitted the unlawful taking of the property, but claim that it was taken by mistake, and not with intent to deprive the owner of his property; that when they became duly sober and discovered their mistake in taking the wrong bale of cotton they started to return with it, and would have returned the same that night, but they were arrested in the *234 meantime. This was a proper and legitimate defense to the charge of larceny. No instruction was requested, and the court omitted to instruct the jury on this theory of the defense. In the case of Mitchell v. Territory, 7 Okla. 527, 54 Pac. 782, it is said: “To constitute larceny under this statute, it is not necessary that the taking should be with the purpose to convert the thing stolen' to the pecuniary advantage or gain of the taker; but it is sufficient if the taking be fraudulent or by stealth, and with the intent to wholly deprive the owner of the property. The intent must be felonious, and must be to deprive the owner, not temporarity, but permanently, of the property, and need not be lucri causa. A taking of personal property with the intent to deprive the owner temporarily of his property, and return the same to. him, is not larceny, but is trespass; is not felony, but a misdemeanor. The felonious intent is one of the material ingredients, of the crime of larceny; and the burden is on the prosecution to prove this intent to the satisfaction of the jury beyond a reasonable doubt, the same as any other material constituent of the crime. The reason of the law is to secure a man’s property to him, and that is to be carried out rather by punishing the thief for feloniously depriving him of it than for any wrongful gain he has' made out of it. The wrong which the law directs its prohibition against and punishment to is the wrongful and felonious, deprivation.” We are of the opinion that, under all the circumstances of the case, an instruction embodying this theory of the defense should have been given. For the reasons stated, the judgment and sentence imposed upon the defendant must be, and the same is hereby, reversed, and the cause remanded to the district court of Beckham county, with direction to proceed in accordance with the views herein expressed. FURMAN, P. J., and ARMSTRONG, J., concur.