224 P.2d 614 | Okla. Crim. App. | 1950
The plaintiff in error, John 0. Brown, who will hereinafter be referred to as defendant, was charged by information filed in the district court of Oklahoma county with the crime of larceny of domestic animals, was tried before a jury, convicted and his punishment fixed at confinement in the State Penitentiary for a period of five years, and judgment and sentence, in accordance was duly entered. Appeal has been perfected to this court.
Petition in error and case-made were filed herein on July 22, 1949, application for additional time to file brief was made within 60 days, and this court, on October 3, 1949, granted defendant 30 days additional time to file brief. No brief has been filed, but on September 13, 1950, the case was submitted upon the record and oral argument.
We have examined the record and find no material errors. Considering the sufficiency of the evidence, we find on behalf of the state that on December 20, 1948, one J. M. Noble was the owner of a 420-acre farm located in Oklahoma county northeast of the State Fair grounds, and had 90 to 100 head of cattle thereon; that the defendant maintained a corral south of Bryan street and near the Noble farm.
Mr. Noble testified that on or about the 20th or- 21st of December, a cattle buyer came to his farm and parked his car on Tenth street, which ends in a dead end against his farm, and stated that he was looking for a colored man who had some cattle for sale, stating that he had bought seven head from him the day before. Witness knew of no one in the vicinity with cattle for sale,
The evidence developed that the loss of the cattle was reported to the sheriff of Oklahoma county by J. M. Noble, witness Claussen accompanying Noble to the sheriff’s office, and Deputy Sheriff Noah Richmond was assigned to the case, and thereafter arrested the defendant at the
Defendant testified that he sold the cattle to the cattle buyers, as alleged, but claimed that he had agreed with one Novak that Novak might leave the cattle in defendant’s corral and that he was to sell tlie cattle for Novak, but that Novak failed to get the cattle in the corral and when defendant got up before day on the 20 December he found the cattle out of the corral and attempted to drive them in, but they got out of control and he drove them to the dead end of Sixteenth street and there penned them up. Defendant admitted writing the statement for the sheriff, but denied telling the deputy that he drove the cattle from the Noble farm and out the south gate, but contended that the statement he signed was not intended as an admission that he stole the cattle, but only that he “drove them from the Noble farm”, they being over by the Noble farm, but outside of it when he commenced driving them.
The deputy sheriff and the cattle buyers swore that the defendant never claimed to be selling the cattle in question for a man by the name of Novak, or even men
We conclude from a study of the entire record that there was sufficient competent evidence to support the verdict of the jury.
In Walker v. State, 89 Okla. Cr. 284, 207 P. 2d 341, 342, affirmed by Woods v. State, 92 Okla. Cr. 53, 220 P. 2d 463, this court held:
“Where the evidence is conflicting and different inferences may be drawn therefrom, it is the province of the jury to weigh the same and determine the facts.
“The function of the Criminal Court of Appeals, is limited to ascertaining whether there is a basis, in the evidence, on which the jury can reasonably conclude that thé accused is guilty as charged.”
Defendant in motion for new trial and in petition in error sets out as error the action of the court in refusing to grant him a continuance in order that he might locate a person by the name of Novak, but whose initials defendant alleged he did not know, whom defendant claims authorized him to sell the cattle involved in the case and for the larceny of which defendant had been charged. The court had heard the motion, considered the affidavit in support thereof, and argument of counsel and had overruled the same. We have studied the affidavit and defendant’s explanation of his dealings with the alleged Novak and do not find that the court erred in refusing a continuance. The evidence and surrounding circumstances brought out indicated Novak to be a phantom. Defendant did not know definitely where Novak lived, his initials, and he had never returned to get his money from the sale of the cattle, and defendant admitted that he had spent most of it.
“In reviewing the refusal of a continuance, all the facts and circumstances disclosed by the record and testimony on the trial will be considered in determining whether or not the exercise of discretion by such court was abused in denying the application.”
See, also, Howard v. State, 67 Okla. Cr. 445, 94 P. 2d 947; Rucker v. State, 64 Okla. Cr. 259, 79 P. 2d 629; Jenkins v. State, 80 Okla. Cr. 328, 161 P. 2d 90, 162 P. 2d 336; Hall v. State, 87 Okla. Cr. 191, 196 P. 2d 703.
The case is affirmed.