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Keywords

jurisdictionstatutehearingwillstatute of limitationswrit of prohibition
jurisdictionstatutehearingstatute of limitationswrit of prohibition

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Cunningham v. District Court of Tulsa County, 432 P.2d 992, 1967 OK CR 183

Facts

The petitioner, A. Willard Cunningham, was the Director of Maintenance for the Tulsa School District and was charged with embezzling a 1944 International Truck-Tractor. The charge stemmed from an incident on January 6, 1959, when he executed a vehicle assignment of title without proper authority. The vehicle was later discovered at a different location, leading to the indictment against him. Throughout the proceedings, the petitioner argued that he never had actual possession of the vehicle, which is a necessary element for embezzlement.

On January 7, 1959 petitioner was the Director of Maintenance for the Tulsa School District number One. On that date he executed a vehicle ‘assignment of title’ to one B. H. Hensley, for transfer of a 1944 International Truck-Tractor.

Issue

Did the district court have jurisdiction to try the petitioner for embezzlement when the evidence suggested that the crime, if any, was larceny by fraud, which is barred by the statute of limitations?

Did the district court have jurisdiction to try the petitioner for embezzlement when the evidence suggested that the crime, if any, was larceny by fraud, which is barred by the statute of limitations?

Rule

The distinction between larceny and embezzlement is based on the timing of the fraudulent intent to convert property. In larceny, the intent must exist at the time of taking, while in embezzlement, the individual must have legal possession of the property before fraudulently appropriating it.

The distinction between larceny where the taking is by fraud, and embezzlement, is determined with reference to the time when the fraudulent intent to convert the property to the taker's own use occurs.

Analysis

The court analyzed the evidence presented during the preliminary hearing and concluded that the petitioner did not have sufficient possession of the truck to constitute embezzlement. The court noted that the fraudulent intent occurred when the title was transferred, and the actual possession required for embezzlement was not established. Therefore, the court determined that the appropriate charges would have been larceny by fraud or forgery, both of which were barred by the statute of limitations.

We are of the opinion that the record before the Court fails to show sufficient possession of the property to meet that element of the crime of embezzlement; and, as stated in the findings of the examining magistrate, the criminal intent occurred at the time the transfer of title was executed, after which the asportation took place, thereby causing the crime of larceny by fraud to have been committed.

Conclusion

The court granted the writ of prohibition, ordering the district court to dismiss the embezzlement charge against the petitioner due to lack of jurisdiction and the statute of limitations.

Therefore, in order that justice might be served, and petitioner's constitutional rights protected, the writ of prohibition requested in the petition herein must be granted.

Who won?

A. Willard Cunningham prevailed in this case because the court found that the evidence did not support the charge of embezzlement and that the prosecution for the appropriate charges was barred by the statute of limitations.

Petitioner sets forth in his brief, that the transcript of the preliminary hearing, no doubt shows, that he acted without authority when he executed the title transferring ownership of the truck.

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