SMITH v. STATE

SMITH v. STATE
1970 OK CR 101
473 P.2d 262
Case Number: A-15434
Decided: 07/22/1970
Oklahoma Court of Criminal Appeals

Appeal from the District Court of Oklahoma County; Ben Lafon, Judge.

Grant Smith, Jr. and Paul Howard White were convicted of Burglary in the Second Degree, After Former Conviction of a Felony, were sentenced to serve 38 years in the state penitentiary, and appeal. Affirmed.

Don Anderson, Public Defender, for plaintiffs in error.

G.T. Blankenship, Atty. Gen., for defendant in error.

BUSSEY, Judge.

¶1 Grant Smith, Jr. and Paul Howard White, hereinafter referred to as defendants, were charged, tried and convicted in the District Court of Oklahoma County for the crime of Burglary Second Degree After Former Conviction of a Felony. Defendants were tried jointly to a jury which found them guilty and fixed punishment at 38 years in the state penitentiary, and they appeal.

¶2 Briefly stated, the facts adduced on the trial reveal that in the early morning of March 15, 1969, a burglar alarm was activated at the Clayton Grocery Store, 1700 South McKinley in Oklahoma City. Oklahoma City police officers proceeded to the scene where they were admitted to the building by Oran H. Clayton, operator of the grocery store, and the defendants were found hiding in the store room. A flashlight was taken from one of the defendants and a pry bar was found on the ground outside a hole in the wall which had been freshly made. One of the defendants had white powder on his hair that resembled cement dust.

¶3 On the trial defendant Smith did not testify, but his companion, defendant White, testified that he and Smith met two persons at the Nineteenth Hole, and eventually the four decided to go to Lawton. About the 2700 block on South Western the others got into an argument and he and Smith left to walk home. As they reached the vicinity of Clayton's store they saw two persons run from the store and leave in a car. He and Smith crawled through the hole, the reason being "just a little more stupic on my part and curious, too." (R 72). He denied making the hole in the wall and said it was already there and he also denied having the flashlight or pry bar.

¶4 The prior conviction of Robbery with Firearms was stipulated to by defendant Smith, as was the prior conviction of Larceny of an Automobile, by defendant White.

¶5 On appeal it is urged that the evidence is insufficient to support the verdict of the jury and the punishment imposed was excessive. Neither of these contentions contain sufficient merit to warrant extended discussion in this opinion, suffice it to say that although the evidence is in sharp conflict and different inferences may be drawn therefrom, it is the exclusive province of the jury to weigh the evidence and determine the facts. Where there is competent evidence in the record from which the jury could reasonably conclude that defendants were guilty as charged, we will not interfere with the verdict.

¶6 We further observe that the punishment imposed was well within the range provided by law and the record is free of any error which would justify modification.

¶7 We are of the opinion that the judgment and sentence appealed from should be, and the same is hereby, AFFIRMED.

BRETT, P.J., concurs.

NIX, J., not participating.