292 P. 1058 | Okla. Crim. App. | 1930
The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Hughes county, of the crime of grand larceny, and sentenced to serve a term of two years in the penitentiary at McAlester. From which judgment and sentence the defendant, after perfecting the record, appealed to this court.
The substance of the state's evidence is as follows: Julia Scott stated she knew the defendant, Russ Hatfield; she lost a calf on or about February 26, 1929; she did not know whether the hide found in the field of the defendant was the hide from her calf, as she did not see the hide. *43
Mose Scott testified his stepmother, Julia Scott, lost a calf in February — "I found a hide in the edge of the defendant's field on Wednesday morning; the calf had been missing since Monday night; the dogs had been dragging the hide around; Dobie Grant went with me to where the hide was." Willmott Scott testified he was with Mose when he found the hide, and he saw where the calf had been butchered. On cross-examination witness stated the dogs had been dragging the hide around, and that the hide belonged to the calf Julia Scott missed.
Other witnesses testified to seeing the hide, and to the furrows having been plowed, looked like to cover up the hide, and that the dogs had been dragging the hide around. Manuel Lavalley, who was an officer, testified he searched the defendant's house, but did not find any fresh meat in the house; that the hide was found a quarter of a mile from the defendant's home; the defendant did not make any statement to him.
Buddie Grant testified he knew the defendant and Julia Scott; he saw the hide after it had been found and the defendant asked him not to say anything about them cooking meat down there. Dobie Grant testified he was jointly charged with the defendant Hatfield with the larceny of the calf; at the time this calf was taken he lived on the Hatfield farm; that he and Hatfield stole the calf together, and he sold a dollar's worth of the meat; the defendant Hatfield shot the calf with a target rifle, and cut its throat; he was some distance on the hill, and it was dark. The witness admitted he had been convicted of larceny and had served a term in the penitentiary.
The defendant denies he had anything to do with the taking of the calf, or killing it, or that he had any knowledge that it had been stolen; or that he plowed the furrows *44 in the field for the purpose of covering up the hide it was claimed by the state's witnesses was found. The defendant stated he was in Holdenville the day the calf is alleged to have been stolen, and that he had nothing to do with the taking of the calf and did not get Dobie Grant to sell any of the meat; none of the meat was cooked at his house; he had been advised that Jim Larney paid Dobie Grant to testify this defendant was implicated.
Hayes Wright testified he did not give Dobie Grant permission to use his car on the 26th day of February, 1929, and when the car was taken by Dobie Grant the same was reported to the officers. This is, in substance, the testimony.
The defendant has assigned six errors alleged to have been committed by the court in the trial of the case. The first error argued by the defendant is as follows: "That the evidence on the part of the state wholly and totally fails to prove venue, and for said reason is insufficient to support a conviction."
If the record bore out the contention of the defendant, this alone would be sufficient to reverse this case, but unfortunately for the defendant the record does not support this contention. In the examination of the witness Julia Scott, the alleged owner of the calf, she was asked if she knew the defendant, Russ Hatfield, and Dobie Grant, and was asked the following questions:
"Q. How far do you live from them? A. I don't know just how far, but I live close to Hatfield.
Q. That was in Hughes county, Oklahoma? A. Yes. sir."
This court has often held that venue may be established by circumstances. The testimony of the witness *45 who claims to have owned the calf that was stolen was that she lived near Mr. Hatfield, and the hide they claim to have found was in the defendant's field, and that was in Hughes county, Okla. This contention of the defendant, we hold, is without merit.
It is next urged by the defendant that the conviction than that of a self-confessed codefendant, which is entirely uncorroborated.
Section 2701, C.O.S. 1921, is as follows:
"A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof."
Beginning with the case of Kirk v. State,
The jury heard the testimony of the witnesses and had an opportunity to judge of their demeanor while on the stand, and after considering the testimony found the defendant guilty. This court has repeatedly held that, where there is any competent testimony to go to the jury upon which it could reasonably find the defendant guilty, though the testimony is conflicting, it will not disturb the verdict. The circumstances surrounding the taking of this calf and the evidence as disclosed by the record are sufficient to sustain the verdict.
It is next urged by the defendant that he was deprived of a fair and impartial trial, for the reason he requested that the witnesses be placed under rule, and the court denied that request. The exclusion of the witnesses under the rule from the courtroom in the course of the trial is not an absolute right, but rests in the sound discretion of the trial judge. Denying the rule to the defendant is not reversible error unless the record discloses an abuse of the court's discretion. Harrell v. State,
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After a careful study of the record in this case, we hold that the evidence is sufficient to sustain the judgment; that the defendant was accorded a fair and impartial trial; the court correctly advised the jury as to the law applicable to the facts in this case. No error appearing in the record of sufficient merit to warrant a reversal, the judgment is affirmed.
EDWARDS, P.J., and CHAPPELL, J., concur.