Roberts v State

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Roberts v State
1935 OK CR 85
47 P.2d 604
57 Okl.Cr. 238
Decided: 07/12/1935
Oklahoma Court of Criminal Appeals

Appeal from District Court, Harmon County; Frank Mathews, Judge.

F.E. Roberts was convicted of burglary in the second degree, and he appeals. Affirmed.

C.H. Madden, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.

PER CURIAM. Plaintiff in error, hereinafter called defendant, was convicted in the district court of Harmon

Page 239

county of second-degree burglary and his punishment fixed at 2 years in the state penitentiary.

On the date charged, defendant, with two companions, stole about sixteen bushels of wheat from the barn of one Yates. The car used by defendant and his companions was parked some distance from the house; it was watched by the sheriff and a deputy; when defendant and his companions returned to the car with the wheat, in sacks, they were arrested.

Defendant's only contention is that there is no proof of a breaking, that the evidence shows no more than petit larceny. Defendant testified and admitted stealing the wheat, but insisted he took it through an open window. He introduced other witnesses who testified as to tracks, spilled wheat, etc., indicating that the wheat was taken through the window. The state's evidence is to the effect that entry was gained through a latched door. The court properly instructed the jury on the question of burglary.