*1 years on a term two (2) to serve Larceny conviction the crime of Grand WARREN, Appellant, Charles Lester Felony. At After Former Conviction of point, the defense rested case. Oklahoma, Appellee. STATE of No. F-74-792. Defendant’s sole at alleges error the evidence of Oklahoma. evidence, circumstantial which consisted of April 11, 1975. conviction was insufficient to warrant the outset, grand larceny. At the we would possession of recent observe that the mere
ly property stolen is not sufficient con larceny,
vict the but when defendant of supplemented with substan
such a fact is the idea
tial facts inconsistent with in an goods
said defendant obtained the manner, question
honest it then becomes pass upon. jury
of fact for the See State, Okl.Cr.,
Jones 468 P.2d although there
(1970). This means that
may eyewitness proof that the be a lack of welding equipment
defendant took the
question, proved through guilt may be in In the
use of circumstantial evidence. presented
stant the evidence was sto possession of the
the defendant was twen goods,
len that he sold them within
ty-four said taking (24) hours transported and they
goods and that were state from which
sold outside of the competent ev
were taken. there is Where jury
idence the record from which
may reasonably de logically find the credibility and weight,
fendant guilty,
probative is for the value
jury province of the and not within the Roberts Appeals.
Court of Criminal State, Okl.Cr., (1971); 479 P.2d (1973).
Box
Accordingly, after a careful review record, trial court we observe that the
correctly the con- instructed the as to applicable
cept to the fact situation of law
presented suffi- and that the evidence was jury. support
cient to the verdict of rea- foregoing
For all of the above and
sons, judgment find the and sentence we hereby
appealed from is affirmed.
BRETT, BLISS, J., J., concur.
one Marvin Culwell had lived next door a for short time. Wright employed
Leslie testified he was Deputy a County as Sheriff for Oklahoma Bureau, taking and worked in the Records mug prisoners. Deputy booking shots and Wright as identified State’s Exhibit No. 1 picture of the defendant. that he was em- Poe testified Joe J. by City ployed the Oklahoma Police De- partment policeman. January aas On 1974, he arrested the defendant at his advising After defendant mother’s house. warnings, his Miranda the defendant and told Officer Poe he one Culwell apartment burglarized an at 2402 North- Poe west 35th Street. He showed Officer where a caliber automatic which had .38 hidden, burglary and been taken in the Poe Officer Poe recovered it. Officer Anderson, Defender, Don Public Okla- Exhibit as a then identified State’s No. 1 County, appellant, and Charles homa for picture of the defendant. Warren, pro se.
Lester Ray Leftwich was recalled to the Jack Gen., appel- Atty. for Larry Derryberry, Exhibit Nos. stand identified State’s lee. guns identical to 3 as apartment. his He fur-
ones taken from as the ther identified State’s Exhibit No. 4 OPINION pouch his gun which had been taken from BUSSEY, Judge: apartment. Warren, re- hereinafter Lester Charles em- testified he was Charles Sheldon defendant, charged, tried to as ferred City Police De- ployed the Oklahoma Court, Okla- in the District and convicted He interro- partment January CRF-74-234, for County, No. homa Case jail City gated in the Oklahoma Degree, Burglary Second the offense Rights. advising him of his Miranda after Felony. Conviction of After Former told him that he The defendant then fif- at a term of punishment was fixed His apartment broken into Culwell had one penitentiary, years in the State (15) teen guns. removed two Officer Sheldon judgment and sentence and from said 1 as a identified Exhibit No. then State’s to this perfected timely appeal has been picture of the defendant. Court. did not after The defendant testified Ray Leftwich At the trial no evi- Jack his trial and offered day first 11, 1974, lived at he January that on his behalf. dence Street, Apartment number 35th Northwest pre- four stage of In the second He left City, Oklahoma. Oklahoma proven. were convictions vious morning January in the apartment proposition asserts first about Defendant’s He his door. returned locking nullity because trial was the door to discovered a. m. and 11:30 The record in his absence. (Tr. jimmied open.” conducted apartment been “had present on and a .38 au- veals revolver guns, a .38 Two 7) return did not his trial but day of first tomatic, missing. The defendant were day. next From the record we find the be forfeited and that a warrant be issued following: (Tr. 12) his arrest.” want, pro-
“THE COURT: I before we The record further reveals that the de- ceed, you I want to advise that the De- fendant’s attorney was throughout fendant is here. I want to further entire trial and never moved for a con- you despite tell the fact that tinuance or a mistrial. Since State and here, that as the law in Oklahoma the defendant had ready announced *3 provides proceed trial, jury sworn, we will with trial. impanelled the the However, I you would further advise trial had commenced. spite in that of the fact that he is not Thereafter, proceeded the trial court here that the law as will be told will be jury the trial and the with returned your told in written Instructions that it presence the verdict without the of defend- prove is still the State’s burden to him appre- subsequently Defendant was ant. guilty beyond a doubt reasonable 1974, April 11, the hended on bench presumed spite that he is still innocent Judgment warrant and and Sentence And, that, his not here. with 7, imposed on 1974. June gentlemen, proceed ladies and we’ll to O.S.1971, 583, pertinent part of 22 The § hear opening on behalf statement provides: the State of Oklahoma. is or information for indictment “If the “(proceedings had at the bench out person- must be felony, the defendant hearing ” jury:) trial, . . . ally present at the “MR. MILLER: move for a bond We 912, O.S.1971, provides further, 22 And forfeiture and a warrant issued for this right
man’s arrest now. information is indictment or Honor, “MR. if Your I think PAGE: must, before felony, defendant the Court would wait about another fif- person. received, appear is teen that if he minutes for order to see does— State, v. Humphrey early case In the up I’ll at the “THE COURT: take that this (1910), 504, 978 106 P. 3 Okl.Cr. first recess. mandatory it was held that Court right, “MR. MILLER: All sir. during present, accused to be his he nor and neither his case trial of will with- “THE Court COURT: ques- This right. this waive could counsel forfeiting the issuing hold a warrant and in the this Court again tion recess, if, at that bond until the first 11, State, 36 Okl.Cr. v. McClendon case of appeared. time, not the Defendant has rec- Court this wherein 515 P. 251 sustained, the bond The motion will be to exceptions were certain there ognized and a warrant issued will be forfeited State, Humphrey v. as set forth the rule 4-5) (Tr. for his arrest.” McClendon, stated: Court this In supra. n n n n ‡ * rule, a defendant general “As the record show COURT: Let “THE throughout be felony must for a ten A. it is two minutes until that now waive permitted to trial, M., still failed the Defendant has that State, 3 Humphrey v. presence. his yesterday in court appear; that he was Am.St.Rep. 978, 139 504, 106 P. along Okl.Cr. impaneling of the during the 618, 191 Okl.Cr. Lyde, 17 972; parte Ex attorney; the Court with (Okl.Cr.App.) [35 606; v. State Cole P. in the everyone cessed, advised—as require- This 347. 50,] 248 Okl.Cr. case was continued this courtroom—that benefit is for that at ment morning; until A.M. nine his constitution- be accorded may the bond orders this time 446 statutory rights,
al
and it is said to
during
involuntary
absence.
against public
contrary
policy,
compelled
do not feel
to extend
humanity,
permit
dictates
an
meaning
guarantee
the statute to
advantage
pres-
accused waive the
right
voluntarily
accused the
absent
may
are,
trial,
ence
afford him. There
how-
thereby
himself from
affectuat-
ever, exceptions
enforce-
literal
ing a
mistrial.
Such
strained view
ment of his
under all conditions.
the retrial of
cas
force
numerous
that,
generally
Thus
where the
held
judg
es which would otherwise lead to
jury during
permitted
a criminal
case
following
ments.
cases constru
crime,
view
although
the scene of the
ing
Arkansas statute:
the similar
Gore
part
564;
such view is a
and is
State,
285,
52
12
Ark.
S.W.
taking
evidence,
554;
presence
State,
Bond
63 Ark.
S.W.
defendant is not
essential. 16
State,
S.
108 Ark.
Davidson
C.J.
Many
sup-
authorities are cited in
See also State of Illinois
W. 1103.
port
exception.
many
great
of this
A
Allen,
L.
U.S.
S.Ct.
*4
in
the states hold in effect
a case
Ed.2d 353.”
capital,
not
if the defendant has been re-
believe that
the most sound
bail,
leased on
absconds,
and
isor
volun-
holding
reasoning for
that a defendant
tarily absent after his
and
arraignment
right
present
during
to be
waives his
all
plea, the
may proceed,
trial
the ver-
and
proceedings
the
of his trial when he volun
be
dict
in
received
his absence. Numer-
tarily
himself from the trial
best
absents
tempo-
ous
a
authorities also hold that
in
summarized
the case of Diaz v. United
rary absence from the courtroom for a
States,
442,
250,
223
32 S.Ct.
56
U.S.
L.Ed.
time during
trial,
short
the
even
a
Supreme
500
the
(1911), wherein
capital
is not such an invasion of a
stated:
the United States
rights
defendant’s
ground
as to be
a
States,
v.
15
“In Falk
United
[U.S.]
following
Several of
reversal.
the
cases
446, 454,
636, 21
App.D.C.
s.c. 180 U.S.
very
are
similar to this case: 16 C.J.
accused,
922,
709,
L.Ed.
the
Ct.Rep.
45
817, 2071;
623,
People
Bush,
v.
68 Cal.
§
bail,
present
large on
who was at
was
169;
99;
People Miller,
10
v.
33 Cal.
begun
during
when the trial
and
53,
People,
Houtan
22
Van
v.
43 P.
Colo.
portion
a
taking of
of the evidence
137;
Rubaka,
State v.
82
72 A.
Conn.
juris-
and
government,
then fled the
566;
Idaho, 336,
McGinnis,
State v.
12
defaulted,
He was called and
diction.
1089; Doyle
Commonwealth,
85 P.
v.
37
absence,
proceeded in his
and the trial
518;
18 Ky.Law.Rep.
S.W.
State v.
remaining
being
taken
Ricks,
1098;
Gonce,
32 La.Ann.
State
Subsequent-
guilt
a verdict of
returned.
627;
Bell,
87 Mo.
633;
State v.
70 Mo.
apprehended,
ly
and sentence
he was
Grate,
22; People
State
68 Mo.
notwithstanding
objec-
imposed,
then
Bragle,
269;
88
Am.Rep.
N.Y.
proceeded in
trial had
tion that
Simon,
Commonwealth
Pa.Super.
affirming
judgment,
absence.
In
Ct. 538.”
Mr.
appeals, speaking through
court
Again in the recent case of Roberts v.
Morris, said:
Justice
State, Okl.Cr.,
Title 22 provides in is for indictment or information must, felony, received, person. appear Oklahoma, STATE of Appellant, In the instant LITTLE RAVEN, Allen James Appellee. jury, for the voir dire but failed to day No. O-75-143. second trial. proceeded court with the trial subse- of Oklahoma. Court of quently issued bench warrant. When June jury returned its verdict the defendant was present. subsequently Defendant was apprehended the bench warrant
judgment imposed and sentence was on June
7, 1974. statutes,
As I now view the are man-
datory followed, and should be notwith-
standing statements found Rob-