Lindsay v State

Lindsay v State
1942 OK CR 10
121 P.2d 613
73 Okl.Cr. 362
Decided: 01/21/1942
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Appeal and Error-Review-Affirmance in Absence of Briefs and Oral Argument. Where an appeal from a conviction for a felony is brought to this court and no briefs are filed and no appearance for oral argument made when the case is set for submission, this court will examine the record for jurisdictional or fundamental errors. If none appear and the evidence reasonably supports the judgment, it will be affirmed.

2. Same-Insufficiency of Evidence Only Assignment of Error in Petition in Error. Where the only assignment in the petition in error is that the evidence is insufficient to support the verdict, and no brief is filed in support thereof, this court will review the record; and if there is competent evidence in the record, reasonably tending to support the verdict of guilty, this court will not interfere with the judgment rendered, even though there is a decided conflict in the evidence on material issues.

3. Robbery-Conviction Sustained by Evidence. Held, evidence examined and found to be sufficient to support judgment of conviction.

Appeal from District Court, Tulsa County; Harry L. S. Halley, Judge.

Bennie Lindsay was convicted of the crime of conjoint robbery, and he appeals. Affirmed.

Frank Hickman, of Tulsa, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.

JONES, J. The defendant, Bennie Lindsay, was charged with robbery conjointly with David Gandall and Louis Bauhaus, acting in concert with Bill Shivel, by information filed in the district court of Tulsa county on November 3, 1939, was tried, convicted and sentenced to serve a term of ten years in the State Penitentiary, and has appealed to this court.

This case has not been briefed by counsel for defendant nor argued before this court.

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The petition in error presents two assignments:

(1) Errors of law occurring during the trial.

(2) Insufficiency of the evidence.

In Capps v. State, 56 Okla. Cr. 133, 34 P.2d 1084, it is stated:

"Where an appeal from a conviction for a felony is brought to this court and no briefs are filed and no appearance for oral argument made when the case is set for submission, this court will examine the record for jurisdiction or fundamental errors. If none appear and the evidence reasonable supports the judgment, it will be affirmed"

An examination of the record discloses that the only question before us is whether the evidence is sufficient to sustain the conviction.

Louis Bauhaus, an admitted accomplice of defendant, stated that before October 2, 1939, the date of the alleged robbery, he had worked in a market belonging to the prosecuting witness, Mrs. A. V. Gabriel, and had lived with his wife and child upon a farm belonging to this same prosecuting witness. The defendant had roomed with Bauhaus for about two months prior to the robbery, while looking for a job. On one occasion defendant asked the witness if Mrs. Gabriel took her money home with her at night and if it would not be a good idea to rob her.

Bauhaus further stated that he, his wife and baby, and defendant left the farm on the night of the robbery about 8 o'clock in defendant's car. They drove into Tulsa and picked up Bill Shivel. Mrs. Bauhaus went to the Circle Theatre and made arrangements to meet the witness later. Bauhaus was in the front seat with defendant. They then picked up Dave Gandall and planned the robbery. Shivel and Gandall got out of the car on the Dawson Road about a half mile from Mrs. Gabriel's

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home. Witness and defendant went to Admiral Place and Lewis avenue to wait until Mrs. Gabriel passed in her car. They followed her home. Bauhaus saw her struggling with a man in her driveway. He and defendant drove to Memorial Drive, where they were joined by Shivel and Gandall, who had come in Mrs. Gabriel's car. Shivel and Gandall had taken three $100 bills, a $20 gold piece, considerable currency, checks and other papers from the woman. Witness was given $160 as his share of the money. Defendant received one of the $100 bills as a part of his booty. Shivel and Gandall disposed of the checks and papers they had taken by hiding them at a culvert on Twenty-First street.

Defendant and witness met Mrs. Bauhaus and went by Mrs. Gabriel's market. One of the attendants at the market told Bauhaus that Mrs. Gabriel had been robbed.

At breakfast the next morning, witness and defendant discussed the robbery in front of Mrs. Bauhaus. Defendant stated that Mrs. Gabriel put up an awful fight. He displayed the $100 bill and said that he was afraid he would have to eat it.

That same morning they drove to the Crown Drug Store at Fifteenth and Peoria, where defendant bought some envelopes. Bauhaus gave defendant $115 to keep for him, and they drove to Twelfth and Cheyenne. Defendant said that he would leave the money with a man named Phil.

The witness learned a day or so later that he was being sought for the robbery, and was arrested at Gabriel's market on Thursday after the robbery.

Rebecca Bauhaus, wife of Louis Bauhaus, testified that on October 2, 1939, Bauhaus, Lindsay, and Bill Shivel were in the car when she went to the Circle

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Theatre. Her husband told her they were going to another show. Bauhaus and Lindsay came to pick her up about 11 or 11:30, and they went to Gabriel's market. Mr. Hern, the night attendant, told her about Mrs. Gabriel being robbed. The next morning at breakfast, her husband and the defendant told her they had held up Mrs. Gabriel. Defendant exhibited the $100 bill. Later in the day they went to a Crown Drug Store, where defendant bought some envelopes. Bauhaus gave him $115, which he put in an envelope. They went somewhere on Cheyenne avenue where defendant said that he would leave the money with Phil, and that his father would get it. After he had gone into a house and come back, he stated that Phil was not at home but that he left the money with Phil's wife.

Clara Meadows, wife of Phillip Meadows, stated that defendant came to her house a few days after the robbery and asked for her husband, who was not at home. She did not remember an envelope or the approximate date.

Claude G. Fowler, pharmacist for the Crown Drug Store at Fifteenth and Peoria, identified defendant as having bought envelopes from him on a Wednesday or Thursday morning shortly after the 1st of October, 1939.

Mrs. V. S. Gabriel stated that she left her grocery store on October 2, 1939, in the evening about 9 o'clock. She had three $100 bills, a $20 gold piece, considerable currency (mostly in $5 bills), some checks and other papers with her. When she got out of her car and was opening the gate at her home, she was assaulted and robbed by two men.

A. W. Strader, another witness for the state, testified he was a police officer and that he was on duty Sunday, October 1, 1939. That he investigated the robbery of Mrs. Gabriel which took place on October 2, 1939,

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and that he and his assistant, John Allen, another officer, arrested Bennie Lindsay at Louis Bauhaus' mother's home on East Admiral, and took him to the station and searched him and found $59 or $69 on his person in currency, mostly $5 bills.

David Gandall, jointly charged with Bauhaus and Lindsay with this offense, testified for the defendant that he had never seen either Bauhaus or defendant until he saw them in jail. He was acquainted with Shivel and lived with Shivel's two sisters. He had a previous criminal record.

Mrs. Carrie Lindsay stated that her son, the defendant, had been in Tulsa about six weeks looking for a job. She had bought some hogs from him for a sum between $80 and $90. She did not pay him all at one time. Her last payment had been $45.

Bennie Lindsay, the defendant, testified in his own behalf that the police had taken $67 from him. This was the amount left from $88 his mother had paid him for his hogs. Defendant denied having ever made any statement to Bauhaus about robbing Mrs. Gabriel. He stated that on October 2nd they had not picked up Bill Shivel. After Mrs. Bauhaus got out at the Circle Theatre, he took Bauhaus to the Lyric Theatre and went to a used car lot on South Cincinnati avenue where he talked with a salesman named Cecil about trading his car. He did not know Gandall at that time and had never seen him until after he was arrested. After talking with the salesman, defendant drove around, went to a hamburger joint on North Denver avenue, and then met Bauhaus about 11 o'clock at a tavern called Charley's on Third street.

Defendant denied that there was any mention made of the robbery at Gabriel's market when they stopped

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there. The first he knew about it was the next morning when Bauhaus and his wife showed him an article in the paper. They were having breakfast at the home of Banhaus' mother. Defendant further denied buying envelopes and having any connection with the robbery.

Austin Branscum, a rebuttal witness, for the state, testified that he saw defendant and Gandall together in defendant's car on either the third or fourth of October.