Cassell v. State

Cassell v. State
1942 OK CR 109
128 P.2d 1016
76 Okl.Cr. 79
Case Number: A-10155
Decided: 09/02/1942

Syllabus by the Court.

¶0 1. In a felony case where the defendant appeals from a judgment of conviction, and no briefs are filed and no counsel appears when the case is called for oral argument and final submission, the court will examine the record and if the evidence is sufficient to support the conviction, and no error is apparent, will affirm the judgment.
2. The Code of Criminal Procedure provides that where the offense involves the commission of, or an attempt to commit, a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material. § 2888 Sts.1931,

Appeal from District Court, Cotton County; Toby Morris, Judge.

Walter Hubbell and Wm. T. Powell, both of Walters, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., for the State.

DOYLE, Judge.

¶1 The information in this case in substance charges that in Cotton County on the 18th day of October, 1940, defendant, John W. Cassell, did, then and there unlawfully and feloniously, in the day time, take, steal and carry away without the knowledge or consent and against the will of one Walter Cooper, fourteen turkeys, the personal property of the said Walter Cooper, with the unlawful and felonious intent to deprive the owner thereof.

¶2 Upon his trial a verdict finding the defendant guilty as charged was returned and his punishment fixed at a fine of fifty dollars.

¶3 Motion for new trial was duly filed and overruled. He has appealed from the judgment rendered on the verdict May 12, 1941. The petition in error with case-made attached was filed in this court on October 6, 1941.

¶4 The grounds of the motion for new trial and set forth in the petition in error, are: That the court erred in overruling defendant's demurrer to the evidence, for the reason there was a material variance between the information and the proof, and that the verdict of the jury is not supported by sufficient evidence, and is contrary to the law and the evidence.

¶5 The information was drawn under § 2276, Sts.1931,

¶6 The material facts in the case, as disclosed by the record, are substantially as follows:

¶7 Walter Cooper, lived in Cotton County, eight miles south and three and a half miles west of Walters. On October 18, 1940, he missed fourteen of his turkeys; later found thirteen of his turkeys at the B. & O. Cash Store, in Temple. One of the thirteen had one of his toes cut off, and the turkeys appeared to have been swabbed with iodine, and he had been using that in doctoring them for canker mouth. His daughter, Helen, age 19 years, lived at home, claimed the turkeys, she had run after them and looked after them, but he owned the old turkeys and the family got the benefit of what the turkeys sold for.

¶8 Several other witnesses for the state identified the turkeys as being the property of the Cooper family.

¶9 The defendant sold the B. & O. Cash Store 14 turkey the same day.

¶10 As a witness in his own behalf, the defendant testified that the turkeys he sold to the B. & O. Store were turkeys that he had raised himself. The testimony of his wife and son was in support of his defense, and three qualified as character witnesses and testified that his reputation as a law abiding citizen was good.

¶11 It would serve no useful purpose to give a further synopsis of the testimony, the jury, after due consideration, decided the issues of fact adversely to the defendant.

¶12 No brief has been filed on behalf of the defendant, nor was any appearance made to orally argue the case when it was finally submitted.

¶13 The fact that the minor daughter of the alleged owner of the stolen turkeys claimed the turkeys cannot be held to constitute a variance, because the actual status of the legal title to stolen property is no concern of the thief. 25 Cyc. 89.

¶14 The Code of Criminal Procedure provides: "When an offense involves the commission of, or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material." Sec. 2888, Sts.1931,

¶15 In the case of Little v. State, 21 Okl.Cr. 1,

¶16 The possession of the property by the alleged owner, Walter Cooper, was sufficient to make it the subject of larceny, and the title may be held either in the owner or the possession from whom it is taken.

¶17 It is well settled that in a prosecution for larceny, the name of the owner of the property stolen, is only required to identify the transaction, so that the defendant, by proper pleading may protect himself against another prosecution for the same offense. Dickson v. State, 28 Okl.Cr. 378,

¶18 While the evidence is conflicting it is the province of the jury to determine whom of the witnesses to believe, and whom to disbelieve, or whose testimony to disregard, and to declare by their verdict what the truth is.

¶19 Where there is substantial evidence to support the verdict, this court will not reverse the conviction on the ground of the insufficiency of the evidence. It is only where the evidence obviously does not warrant the inference of guilt that the court will interfere.

¶20 After an examination of the entire record, we are satisfied that the substantial rights of the defendant have not been prejudiced by any error of law, and we find no good reason for disturbing the verdict because of insufficient evidence to sustain it.