In the petition for rehearing defendant urges several grounds for relief, only one of which seems to merit consideration. That proposition is based upon § 17, art. II of the Constitution as follows:
"No person shall be prosecuted criminally in courts of record for felony or misdemeanor otherwise than by presentment or indictment or by information. No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination. Prosecutions may be instituted in courts not of record upon a duly verified complaint."
He says, under this section and the order of the committing magistrate, he could not be prosecuted for the crime of perpetrating a confidence game. The order of commitment made and entered by the justice of the peace reads as follows, to wit:
"It appearing to me that the offense named in the within complaint mentioned obtaining money under false pretense has been committed and there is sufficient cause to believe the within named John M. Rucker, Bodine Loyd and Frank Falkner, alias Compton, guilty thereof, I ordered that he be held to answer the same and that he be admitted to bail in the sum of $5,000.00 and he be committed to the sheriff of Rogers County, State of Oklahoma, until said bail is given."
He contends, since he was bound over for the crime of what the justice of the peace described as "obtaining money under false pretense," that he therefore has not had a preliminary hearing for the crime of perpetrating a "confidence game," and he, therefore, could not lawfully be charged by information for the crime of perpetrating a confidence game. For a proper consideration of this point we must call attention to the provisions of § 1541, Title 21 O.S.A. 1941; the pertinent part thereof is set forth as follows, to-wit: *Page 49
"Every person who, with intent to cheat and defraud, shall obtain or attempt to obtain from any person, firm or corporation, any money, property, or valuable thing, of the value of Twenty ($20.00) Dollars, or less, by means or by use of any trick or deception, or false or fraudulent representation, or statement or pretense, or by any other means or instrument or device commonly called the 'confidence game,' or by means or use of any false or bogus checks, or by any other written or printed or engraved instrument or spurious coin, shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not to exceed One Hundred ($100.00) Dollars, or by imprisonment in the county jail for not more than thirty (30) days, or by both such fine and imprisonment. If the value of the money, property or valuable thing referred to in the preceding paragraph, be more than Twenty ($20.00) Dollars, any person convicted hereunder shall be deemed guilty of a felony and shall be punished by imprisonment in the State Penitentiary, for a term not exceeding seven (7) years, or by a fine not to exceed Five Hundred ($500.00) Dollars, or by both such fine and imprisonment. * * *"
The remainder of said section relates to the definition of bogus checks, credit, etc.
Herein it is apparent that this section defines offenses in relation to obtaining money or property "by means or by use of any trick or deception, or false or fraudulent representation, or statement or pretense," or, "by any other means or instrument or device commonly called the 'confidence game,' " or, "by means or use of any false or bogus checks, or by any other written or printed or engraved instrument or spurious coin," all being crimes that fall within the generic definition of obtaining money or property by false pretense, but defined as separate offenses because of the different means or methods employed to unlawfully obtain one's money or property. *Page 50
The foregoing contention of the defendant presents two questions: First, shall the ineffectual attempt on the part of the committing magistrate to describe generically the character of the crime charged in the complaint, determine whether the defendant has had a preliminary hearing on the charge laid in the information, or must the complaint, the order of commitment, and the information be read together in order to ascertain whether the defendant has actually been accorded a preliminary hearing on the charge as laid in the information or informations? The answer to the question is obviously in the affirmative. Or, putting it a little differently, shall an ineffectual but generic description of a justice of the peace, standing alone, permit the defendant to assert that he has not been accorded a preliminary hearing, when an examination of the complaint, the order of commitment and the information discloses that the charge has been substantially the same throughout the entire proceeding. The answer to this question should be in the affirmative. In support of this conclusion, we find no Oklahoma case squarely in point, but People v. Tinnen,49 Cal. App. 18, 192 P. 557, 559, presents a complete answer to the contention of the defendant. The defendant therein was charged with the crime of administering poison to Margery Cockcroft with intent to kill and murder. The order of commitment as in the case at bar held the defendant for trial for the crime charged in the within complaint, but preceding that language the committing magistrate made an ineffectual attempt to define the crime as assault with intent to commit murder. The California court said that such description
"* * * merely involved an ineffectual or a futile attempt on the part of the magistrate to characterize generically the character or nature of the crime charged in *Page 51 the complaint, and for which he had committed the accused. If a complaint or deposition filed before a magistrate were to charge, in legally appropriate language, a person with murder, and, that crime having been shown, the magistrate should in his commitment state, 'It appearing to me that the crime of assault with intent to commit murder has been committed, as charged in the within complaint,' etc., no one would for a moment contend that the commitment was not for murder, and that the erroneous designation in the commitment by the magistrate of the crime so charged would control or modify the general words indicating the crime for which the accused was held or justify the conclusion that the commitment was not for the crime specifically charged in the complaint on which the commitment was indorsed. The commitment and the so-called complaint on which it is indorsed must be read together to ascertain for what offense the accused is committed where the commitment itself does not attempt to define the crime for which the accused is held, but merely in general language states that the accused is held for the crime as it is charged in the complaint. In other words, in such case, the complaint itself becomes an essential part of the commitment, and necessarily we must look to the complaint to ascertain for what specific offense the accused has been committed. The information in this case is, as the counsel for the defendant concedes, substantially in the language of the complaint or deposition, on the back of which the order of commitment is indorsed. It, therefore, follows that, since the said complaint is made a part of the commitment or is by virtue of the language of the order of commitment an essential part thereof, the information sets forth the crime for which the defendant was committed."
As was said in the California case the order of commitment in the case at bar by its very language makes the complaint an essential part thereof and the information thereafter filed in the district court being substantially in the language of the complaint controls over the *Page 52 technically inaccurate though generically correct description of the justice of the peace as to whether the defendant had a preliminary hearing on the charge as laid in the information or informations that followed. The defendant in his brief in support of this proposition cites the case of Payne v. State,30 Okla. Crim. 218, 235 P. 558, wherein this court said:
"Where a charge of felony is made before an examining magistrate, and a preliminary examination had, and the accused held for the district court upon the offense charged in the complaint, the county attorney is authorized to file an information against the accused charging only the offense for which the accused is held."
The defendant did not quote from the body of the opinion but from syllabus two. In the body of the opinion the court said:
"This is a judicial determination by the magistrate of the offense found, and, when that has been done as in this case, the county attorney is thereby authorized to file an information charging the offense for which the accused was held, or substantially the same offense. Sayers v. State,10 Okla. Crim. 195, 135 P. 945 [Id., 10 Okla. Crim. 233, 135 P. 1073]; Ponoksy v. State, 8 Okla. Crim. 116, 126 P. 451; Morgan v. State,8 Okla. Crim. 444, 128 P. 159; Stephens v. State,12 Okla. Crim. 90, 152 P. 138; Muldrow v. State, 16 Okla. Crim. 549, 185 P. 332; Chappelear v. State, 10 Okla. Crim. 392, 136 P. 978."
We call attention to the fact that in Payne v. State, supra, in defining what is meant by substantially, the court said:
"By the term 'substantially the same offense' is meant offenses varying only in degree, or means, or circumstances. Thus where an offense for which an accused is held is divided into degrees, and the accused is held for the higher, an information may be filed for the lower, or where the detailsinvolved differ as to means, methods, *Page 53 or circumstances, and the charge in the information is for someform of that offense and not a different offense, the informing officer may vary the charge in formal and nonessential matters to meet the contingencies of the testimony. But he may not add or charge a new offense. The prosecuting officer, in other words, is not permitted to substitute his judgment for that of the committing magistrate" (Italic ours.)
In this connection we must point out that under the section of the statute herein involved, § 1541, O.S.A. 1941, Title 21, the crime of obtaining money by false pretense may involve three different means, methods or circumstances as hereinbefore enumerated, but generically speaking, while it might not be entirely accurate to describe the same as obtaining money under false pretense, where the statute was violated by use of a bogus check or confidence game, such a description would not be so erroneous as to constitute grounds for reversal, particularly where the record discloses that the charge was substantially the same throughout the entire proceedings, as is presented in the case at bar. But where it is apparent that the prosecuting officer has not substituted his judgment for that of the committing magistrate as evidenced by the complaint, order of commitment and the information or informations, the defendant cannot complain he has not been accorded a preliminary hearing on the charge as contained in the information. It is apparent in the case at bar that the accused was charged by information as originally drawn and as amended upon identically the same grounds as those relied upon in the complaint, and that it was the intention of the justice of the peace to bind the defendant over on the charge as laid in both the complaint and the informations herein involved, and that there has been a substantial compliance with his order *Page 54 of commitment. In the case of Morgan v. State, 8 Okla. Crim. 444,128 P. 159, this court said:
"When it appears that the charge in the preliminary complaint is substantially the same as that set forth in the information filed by the county attorney in the district court, a plea of a want of a preliminary examination, or a variance between the preliminary complaint and the information, is unavailing."
See, also, Ponoksy v. State, 8 Okla. Crim. 116, 126 P. 451, and Agent v. State, 18 Okla. Crim. 281, 194 P. 233.
To hold that an ineffectual generic description of the crime charged by the magistrate is controlling, where it appears that the defendant was accorded a preliminary hearing on the charge as laid in both the complaint and substantially the same in subsequent informations would be to open the door to a gross miscarriage of justice based entirely upon the technical ability of the justice of the peace to properly describe the crime as charged in the complaint, and on which the defendant was bound over and thereafter charged in the district court by information. To so hold would be to expect entirely too much of justices of the peace, many of whom are not schooled or versed in the technicalities of the law. We have set forth at great length in the opinion heretofore rendered herein the complaint, the original information, the amended information, and the second amended information and therein said they all charge the defendant with the crime of perpetrating a confidence game on Frank Dowell. We are still of the same opinion. We, therefore, conclude that the defendant's contention that he was not accorded a preliminary hearing on the information on which he was tried is without merit. *Page 55
Defendant calls our attention to an erroneous statement in the opinion not as a basis for rehearing but which we desire to correct. The error is as follows:
"The logical conclusion to be drawn from the evidence is that the two checks were bogus and had never been drawn or written by the Texas Company for the use of any agent or representative by the name of Falkner who operated under an alias as Compton and there was never any intent to deliver to Dowell the $9800.00 or to pay him the $24,000.00."
The sentence should have read:
"The logical conclusion to be drawn from the evidence is that the $9800.00 check was bogus and had never been drawn or written by the Texas Company for the use of any agent or representative by the name of Falkner who operated under an alias as Compton and there was never any intent to deliver to Dowell the $9800.00 check or pay him the $24,000.00."
Through some inadvertence this correction does not appear in the final draft of the opinion and was overlooked, but we gladly make this correction. The defendant contends there was only one check involved in the transactions. In this he is in error. There were two checks involved, Frank Dowell's $100 valid earnest money check and the $9800 so-called Texas Company check, but only the latter was an instrument of fraud, or was executed for a bogus purpose.
The defendant assigns other grounds for rehearing which largely go to the correctness of the court's conclusion of the pleadings, the evidence, and the inferences to be drawn by the jury therefrom. On these points we have again examined the record in the light of the opinion heretofore rendered but are not persuaded to change our conclusions therein expressed. This record conclusively *Page 56 shows the defendant and his associates defrauded old man Dowell out of $8,100 for what, to every intent and purpose, was a worthless oil lease, said fraud being perpetrated by means of what was clearly a confidence game. The case has some of the aspects of one of the frauds perpetrated by O. Henry's gentle grafters whom, we recall, when the flying machine was a matter of rank speculation, left one of their victims with $10,000 worth of highly decorated stock in the "Consolidated Amalgamated Aerial Franchise Development Company of North America." The story concludes that as they rolled out from under the railroad station sheds in flight, they nudged one another and congratulated themselves on the fact they hadn't stolen the old man's money. We are inclined to suspect the defendant craves exoneration on the technicalities which he raises herein that he may do likewise. We cannot follow him. For all the foregoing reasons the petition, together with the supplement thereto, for rehearing is denied.
BAREFOOT, P. J., and JONES, J., concur.