State v. RhineState v. Rhine
- Reporters:
- , , ,
- Before:
- Bussey
Lead Opinion
OPINION
BUSSEY, Judge:Appellees, Arthur Leroy Rhine and Donald Edward Korb, were charged in the District Court of, Ottawa County, Case No. CRF-87-105, with. Embezzlement by a. Bailee. The charge was dismissed at preliminary hearing, and the magistrate’s ruling was affirmed on appeal to the district court. The Statе has appealed from the district court’s ruling.
In its’ first assignment, the State seeks reversal because the preliminary hearing magistrate denied an oral request for continuance to produce a material witness. However, the denial of a motion for a continuance is not appealable by the State. See
The State next asserts that the magistrate erred in sustaining appellees’ demurrer to the evidence because the evidence offered at preliminary hearing showed that a crime was committed, and reasonable cause to believe that appellees committed the crime. State v. Benson, 661 P.2d 908 (Okl.Cr.1983). Apрellees respond that the District Court gave “appropriate deference to the basic, primary or historical facts found by the magistrate” as required by this Court’s decision in Fletcher v. State, 735 P.2d 1190 (Okl.Cr.1986).- Finding no errors of law, the district court denied the State’s appeal.
Fletcher wаs decided on the basis of language contained in our Court Rules. See Section VI., Rules of the Court of Criminal Appeals, 22 O.S.1981, ch. 18 App. Sinсe Fletcher, however, the legislature has enacted
In the event that the state appeals the ruling of the preliminary hearing magistrate ordering a defendant discharged based upon a finding of insufficiency of the evidence to establish that a felony has been committed or insufficiency of the evidence to show that there is probable cause to believe that the accused has committed a felony, the assigned judge shall determine, based upon the entire record developed before the magistrate, whether the evidence, taken in the light most favorable to the state, is sufficient to find that a felony crime has been committed and that the defendant probably committed said crime.
(Emphasis added.‘) To the extent that Fletcher prevents a review of facts under the standard provided in Section 1089.5, it has been superseded and must be overruled.
The facts of this case revolve around an accident on the Oklahoma Turnpike in Ottawa County. While trying to avoid a deer оn the road, a livestock truck crashed and overturned. Several animals from the truck were on or near the road, somе of them injured and some of them dead. During the clean-up process, appel-lees, who were members of the Ottawа County Sheriff’s office, slit- the throats of several injured animals, took them to a rendering plant, and had the meat processеd for the sheriff’s office. The officers assisting in the clean-up agreed that this meat should be shared among them to compensate them for their efforts. The remaining live animals were to be taken to Joplin and left at the stock yards. ■ Before reaching Joplin, however, appellees dropped off another hog at a rendering plant because the hog wаs scaring the other livestock on the trailer. This hog was *764also processed for the sheriff‘s office. Some of the meat wаs served to prisoners in the county jail, some was eaten at a chili cookoff to raise money for the sheriff’s office, and some was given to officers who helped at the accident site. The Information charged each appellee with embezzlement by a bailee of a live hog.
The evidence shows that appellees originally took the animаl with the intent to deliver it to Joplin where it could be held at the owner’s disposal, and decided only afterward to apprоpriate the property. Thus the original acquisition was lawful, and the animal could be subsequently embezzled. Appellees, however, claim that the State failed to establish the fact of a bailment, thus precluding any prosecution under
The State’s argument is well taken. In Mitchell v. Oklahoma Cotton Growers’ Ass’n, 108 Okl. 200, 235 P. 597 (1925), the Oklahoma Supreme Court addressed a situation where cotton bales had been carried off by flood waters and deposited on Mitchell’s land. The Court held that under those circumstances, Mitchell was an involuntary bailee under the statute. Appellees in this сase are in a similar situation inasmuch as they came into lawful possession of the hog in the course of an extraordinаry emergency-
Appellees also contend that they established an absolute defense under 21 O.S. 1981
Upon any proseсution for embezzlement it is a sufficient defense that the property was appropriated openly and avowedly, and under a claim of title preferred in good faith even though such claim is untenable. But this provision shall not excuse the retention of the property of another, to offset or pay demand held against him.
The record, viewed in the light most favorable to the State, supports the position that appellees retained the animals because they felt entitled to cоmpensation for their services. The statute specifically excludes the defense of retention of property to offset or pay a demand, and this argument must fail. See Bush v. State, 91 Okl.Cr. 310, 218 P.2d 386 (1960).
Finally, the magistrate ruled that the evidence “failed to establish by a prepоnderance that the property was converted to the personal use of these Defendants.” The undisputed evidence showed that appellees appropriated the meat to a use not authorized by the true owner. Therefоre, the evidence did establish the necessary elements of the crime, see Oklahoma Uniform Jury Instructions (OUJI-CR) 523, 527 (1981), and this argument must also fail.
For the foregoing reasons, the ruling of the magistrate in Case No. CRF-87-105 is REVERSED, and the case is REMANDED for further proceedings consistent with this opinion.
LANE and LUMPKIN, JJ., concur. PARKS, V.P.J., and BRETT, P.J., dissent.
Dissenting Opinion
dissenting:
I dissent. Having reviewed the еntire record, I must agree with the district judge who reviewed the magistrate’s ruling sustaining appellees’ demurrers that the State failed to show probable cause that appel-lees committed embezzlement by bailee under