(Syllabus.)
1. Embezzlement — Advising or Aiding Officer in Conversion of Public Funds — Information. Under section 9781, C. O. S. 1921, any person who shall advise, aid, or in any manner knowingly participate in the conversion, using by way of investment or loaning of public funds held by any public officer by virtue of his said office, is guilty of the same crime as the officer, and it is sufficient to charge such adviser, alder, or participator in the language of such section.
2. Same — Intent or Motive not Ingredient of Offense. Under section 9781, supra, the offense consists in the violation of the law, and not the intent or motive by which the public officer is actuated.
3. Same — "Money", as Used in Embezzlement Statute, Defined. The word "money" in an embezzlement statute relating to public funds is used in a generic and not a specific sense, that is to say, that it includes all actual moneys, all credits and funds of every kind belonging to the public.
Appeal from District Court, Johnston County; Porter Newman, Judge.
J.C. Dodd was convicted of embezzlement, and he appeals. Affirmed.
Rehearing denied; DAVENPORT, P.J., dissenting.
W.L. Ratliff and W.E. Utterback, for plaintiff in error.
J. Berry King, Atty. Gen., and Ed. Crossland, Asst. Atty. Gen., for the State.
CHAPPELL, J. Plaintiff in error, hereinafter called defendant, was convicted in the district court of Johnston county of embezzlement, and his punishment fixed by the jury at a fine of $24,000 and imprisonment in the state penitentiary for a period of three years.
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Defendant was jointly charged with Anna L. Campbell, Charles L. Hulsey, Mrs. J.W. Hopkins, J.T. Gardner, and W.P. Cottrell, with the embezzlement of $12,000 of the sinking funds of school district No. 29, in Johnston county, and on the 8th day of November, 1929, the state proceeded with the trial of the defendant. Thereafter, and on the 25th day of November, 1929, the state proceeded with the trial of the case against W.P. Cottrell, which resulted in a verdict of guilty.
The evidence in this case is practically the same as in Cottrell v. State, 52 Okla. Cr. 375, 5 P.2d 178. For a full statement of the facts, see that case.
The defendant, testifying for himself, made admissions which makes the case stronger against him, if possible, than against Cottrell. The defendant's testimony only attempted to show that he did not commit the acts with a felonious intent, because he had consulted a lawyer prior to the transaction and was advised that it was legal.
Defendant contends first that the court erred in overruling his motion for a new trial for the reason that the evidence was insufficient to support the verdict of the jury.
There is no merit in this contention.
Defendant next contends that the court erred in giving to the jury instructions Nos. 3, 4, 5, and 6.
An examination of the instructions complained of discloses that, while they are informal, somewhat complicated, and not artistically drawn, yet, in substance, they correctly state the law of the case and are as favorable to the defendant as the facts would warrant.
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Finally, defendant contends that the court erred in refusing to give instructions Nos. 1, 2, and 3 requested by him.
Requested instruction No. 1 told the jury that they must find the defendant not guilty because there was a fatal variance between the allegation in the information and the proof.
Requested instruction No. 2 told the jury that there was evidence that the defendant had consulted counsel, and that they were to consider such evidence for the purpose of showing intent, and that before they could convict they must find that he entertained a criminal intent in the matter.
Requested instruction No. 3 was of like import.
Defendant's contention under requested instruction No. 1 is disposed of in Fulkerson v. State, 17 Okla. Cr. 103, 189 P. 1092.
Defendant's contention under requested instructions Nos. 2 and 3 is disposed of in Hays v. State, 22 Okla. Cr. 99, 210 P. 728; State v. Bunch, 23 Okla. Cr. 388, 214 P. 1093; State v. Harris, 47 Okla. Cr. 344, 288 P. 385.
The evidence being sufficient to support the verdict of the jury and the errors of law complained of being without substantial merit, the cause is affirmed.
EDWARDS, J., concurs. DAVENPORT, P.J., absent, not participating.