Rath v State

Rath v State
1934 OK CR 107
38 P.2d 963
56 Okl.Cr. 179
Decided: 08/25/1934
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Larceny - Truthfulness of Explanation of Possession of Stolen Property for Jury. The truthfulness of an explanation of possession of stolen property, although uncontradicted, must be determined by the jury.

2. Conspiracy - Evidence - Circumstantial Evidence. A conspiracy to commit a crime, or the fact that one aided and abetted another in the commission of a crime, may be established by circumstantial evidence.

Appeal from District Court, McClain County; Tom P. Pace, Judge.

Ray Rath and Bob Messic were convicted of grand larceny, and they appeal. Modified and, as modified, affirmed.

Moman Pruiett and Victor Sniggs, for plaintiffs in error.

J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (J.H. Lawson, of counsel), for the State.

CHAPPELL, J. This case was prosecuted in the district court of McClain county on an information filed by the county attorney charging plaintiffs in error, hereinafter called defendants, and one Walter Philpot with the crime of grand larceny. At the time of trial, Philpot had not been arrested, but defendants Messic and Rath were tried, found guilty as charged, and the punishment of each fixed by the jury at imprisonment in the state penitentiary for a period of five years.

It is first contended the evidence is insufficient to support the verdict of the jury.

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In substance, the evidence of the state was that a set of harness belonging to one Kilgore was stolen in McClain county, taken to the home of defendant Rath and by him removed to the farm of Moman Pruiett, and there secreted. The defense was an alibi.

When all of the facts and circumstances in evidence are considered together, the state's proof is sufficient to support the verdict of the jury.

It is next contended the court erred in admitting the evidence of the absent witness, Willie Wilson.

It appears from the record this witness testified in the preliminary, but had disappeared shortly before the trial; that the state had a subpoena issued and the sheriff upon investigation learned the witness was in Dallas, Tex. A transcript of the evidence taken at the preliminary and showing opportunity for defendants' counsel to cross-examine was read to the jury. Under the showing made by the state, this evidence was properly admitted.

It is next contended the court erred in excluding competent testimony.

The particular complaint is that the court erred in refusing to permit defendants to show the witness Willie Wilson had made contradictory statements to that set forth in the transcript of his testimony taken at the preliminary.

Contradictory statements made by any witness are admissible in evidence for the purpose of impeaching him, and it is proper to show statements of the witness made out of court to affect his credibility. Sturgis v. State, 2 Okla. Cr. 362, 102 P. 57; Smith v. State, 3 Okla. Cr. 629, 108 P. 418.

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