No. A-4398. | Okla. Crim. App. | May 9, 1924
The sole assignment of error is that the evidence is insufficient to *147 sustain the verdict and judgment. For such reason we have considered it advisable to quote copiously from the testimony given by the witnesses for both the state and the defendant.
Counsel for defendant contend that the circumstances of recent possession, coupled with an untruthful statement or an evasive statement by defendant of the length of time he had been in possession of the stolen property, should not have resulted in his conviction.
We believe counsel overlooked other incriminating circumstances which the jury doubtless considered in reaching a verdict of guilty in this case. Here we have, according to the state's evidence, not only undisputed proof of the corpus delicti of the larceny, coupled with proof of possession by defendant of the stolen property two days after the larceny thereof, and an admitted untruthful statement by defendant at the time he was first found in possession thereof, but also the circumstances that at the time defendant asked for a continuance of the trial he made an affidavit that he came into possession of this property on a date prior to the time it was stolen, and again as a witness in the trial he swore to matters that were contradictory both of his affidavit for a continuance and to his statement made at the time he was first found in possession of the stolen property.
We have here, then, three distinct statements by defendant, two of them under oath, and each contradictory of the other, in explanation of his possession of this stolen property. The last explanation, given at the trial, is unreasonable and apparently unbelievable. The property stolen was not such as passes readily from hand to hand. It was not such as a person would likely steal unless he had beforehand located a market for it or had a particular use to which it could quickly be put. *148
Here defendant was building a house; he needed just two doors and five windows and screens. Just at the appropriate time, a negro and a white man in a spring wagon made a convenient appearance hauling just two doors and five windows and screens. Defendant says he bought these windows and doors and screens from the negro for $35, a little more than half of their actual value. Defendant did not learn the true names of and could not afterwards locate either of these parties, although the case was not tried for several months. Defendant says this negro told him he had bought this property at a bargain from some parties south of Bartlesville who were remodeling their property by putting in heavier fixtures, yet defendant admits he made no effort to learn the names of such parties or to verify the truthfulness of the negro's statement.
The onus of proving the truth of his explanation is upon the party in whose possession stolen property is found, when found under such circumstances as to call for an explanation, and the explanation given is not natural and probable and not such as all reasonable minds would not differ on. Garcia v. State,
Where the explanation of possession, however, is natural and probable, and satisfactorily accounts for the possession of the stolen property in such a way that all reasonable minds would arrive at the truthfulness of the explanation, then the court may as a matter of law determine the issue; otherwise this court would clearly be invading the province of the jury and would be passing upon the weight to be given to the testimony of the accused and his witnesses respecting the explanation, although the jury had seen and heard them testify and the court had not.
While it may be possible that a jury may err with regard to both the reasonableness and truthfulness of an explanation, *149 yet such an error is possible with regard to any inculpatory fact which the jury must find from the evidence in order to convict the accused.
The question here is, Is there any substantial evidence to support the findings of the jury? Without doubt there is.
The judgment is affirmed.
BESSEY and DOYLE, JJ., concur.