Ex parte Hancock

Ex parte Hancock
1937 OK CR 59
66 P.2d 954
61 Okl.Cr. 167
Decided: 04/02/1937
Oklahoma Court of Criminal Appeals

(Syllabus.)

Larceny -- Mule Hold to Come Within Statute Defining Horse Theft.

Original proceeding on the petition of R. L. Hancock for writ of habeas corpus to be directed to J. F. Dunn, Warden of the State Penitentiary. Writ denied.

Page 168

R. L. Hancock, per se.

Mac Q. Williamson, Atty. Gen., for the State.

PER CURIAM. This is an original petition in habeas corpus filed by R. L. Hancock, who alleges that he is unlawfully restrained of his liberty by J. F. Dunn, warden of the State Penitentiary, at McAlester, Okla.:

"That the cause of this unlawful and wrongful detention is to the best knowledge and belief of your petitioner, is, that as warden of said penitentiary and those acting for him and under him have what is known as a commitment from the district court of Tulsa county, Oklahoma, sentencing him to serve a term of five years in said penitentiary. That the said commitment says, and the said warden informs your petitioner, that he is being so held and confined, charging him with 'stealing a mule,' pretending the said charge and commitment to be legal and a violation of the Criminal Statutes of the State of Oklahoma."

The only question to be determined by this court is, Do the Statutes of Oklahoma cover the larceny of a mule? It is admitted by the petitioner that he is confined by reason of the commitment on a conviction, charged with the larceny of a mule. Section 2267, 0.S. 1931 (21 Okla. St. Ann. § 1716), under the title, Larceny of Domestic Animals, in part is as follows:

"Any person in this state who shall steal any horse shall be guilty of a felony and upon conviction shall be punished by confinement in the State Penitentiary for a term of not less than five years nor more than ten years."

The last sentence in section 2267, 0.S. 1931 (21 Okla. St. Ann. § 1716), supra, is as follows:

"The word 'horse' as used in this act, shall include all animals of the equine species."

Page 169

It cannot be successfully disputed that the mule is of equine species. 30 Corpus Juris p. 458, § 1, defining the horse, in part says:

"A generic term including all variation of age, sex, and conditions; any animal of the genus equus; a neighing quadruped used in wax, draught and carriage; a term as nomen generalissimum; may embrace within its meaning a colt, a filly, a gelding, a jackass, a mare, a mule, an ass or a stallion." Citing many cases in support of the definition.