LOTT v. STATE

LOTT v. STATE
1964 OK CR 93
395 P.2d 812
Case Number: A-13522
Decided: 10/07/1964
Oklahoma Court of Criminal Appeals

Appeal from the District Court of Garvin County; Joe D. Shumate, Judge.

Alvin Keith Lott was convicted of the crime of grand larceny, and appeals. Affirmed.

Sam J. Goodwin, Pauls Valley, for plaintiff in error.

Charles Nesbitt, Atty. Gen., Hugh H. Collum, Asst. Atty. Gen., for defendant in error.

JOHNSON, Presiding Judge.

¶1 Alvin Keith Lott was charged by information filed in the district court of Garvin County with the crime of grand larceny; was tried, convicted, and, pursuant to the verdict of the jury, was sentenced to serve a term of three years in the State Penitentiary. Appeal has been filed in this Court.

¶2 No appearance was made on behalf of the accused at the time the case was assigned for oral argument in this Court, and no brief has been filed. In such situation, under Rule 9 of this Court (22 O.S.A. ch. 18, Appendix), we examine the record for fundamental error, and if none is found, the judgment will be affirmed. Overstreet v. State, 97 Okl.Cr. 99, 258 P.2d 709; Butler v. State, Okl.Cr., 269 P.2d 1001; Steele v. State, Okl.Cr., 357 P.2d 252; Smith v. State, Okl.Cr., 376 P.2d 347.

¶3 The defendant herein was charged with the theft of a medical bag belonging to Dr. J.A. Graham of Pauls Valley, of the value of between $350 and $400. The theft is charged to have occurred in the town of Pauls Valley, on September 5, 1961.

¶4 The proof of the State was that Dr. Graham parked his automobile in an alley back of the Pauls Valley Memorial Hospital around 5:30 or 6 o'clock in the afternoon in question, and went into the hospital to make his calls, leaving his medical bag in his car. When he returned to the car, the bag was gone.

¶5 Two school boys, ages 16 and 18 years, had gone to the hospital some time after getting out of school on this date for the purpose of visiting their father, a patient in the hospital. They were denied permission to visit the father at the time, and told to wait in the car. They both testified that they were sitting in their car, parked near the alley back of the hospital, and could see down the alley. They noticed a white Cadillac car drive up and park by the side of Dr. Graham's car. There were two well dressed men in the car, and one of them got out and took a bag from the Doctor's car and placed it in his car, and they immediately drove away fast, going west. The boys testified that they did not attach any significance to the transfer of the bag until Dr. Graham came out, and after looking in his car, was visibly disturbed. They went in the hospital and reported what they had seen. The sheriff was called, given a description of the men and the car, together with the tag number, and in a short time the men were picked up by the police in the town of Lindsay, about twenty miles northwest of Pauls Valley. The Chief of police testified that the men were arrested about dark between 6 and 7 o'clock in the evening.

¶6 At the trial both of the boys positively identified the defendant as the man who got out of the Cadillac and took the bag from Dr. Graham's car.

¶7 When the officers searched the car after the arrest in Lindsay, they found two ampule files, described by Dr. Graham as being used to score glass to be broken. The Doctor testified that he had such ampules in his bag when it was stolen.

¶8 Bobby Eugene Martin, an employee of the Southwestern Bell Telephone Company was working on the lines in Garvin County, and on September 21, 1961 went into an old barn adjacent to the telephone lines four or five miles west of Pauls Valley, and there found a doctor's bag, and testified that "there was medicine scattered in the barn, and some out the back." He took the bag and turned it over to the manager of the motel where he was staying in Pauls Valley. Dr. Graham was notified, came out and identified the bag as the one stolen from him.

¶9 The defense was an alibi. Mr. W.B. Ward, Jr., an attorney, testified for the defendant and stated that he was defending a criminal case in Ada, Oklahoma on September 5, 1961, and that this defendant and one of the other defendants in the case left his office around 6 o'clock in the afternoon of that date. The wife of the defendant corroborated Mr. Ward, and stated that she and her children and the brother of this defendant left Ada about 6 P.M., and returned to her home in Oklahoma City, and the defendant and one Mickey Gossett, another of the defendants in the case on trial in Ada, left Ada at the same time to go to Lindsay to see a friend.

¶10 The defendant also testified that he and Mickey Gossett left Ada about 6 P.M., and drove straight through Pauls Valley without stopping, and were arrested in Lindsay.

¶11 We have carefully reviewed the record. The information is sufficient to charge the crime of grand larceny. The evidence offered by the State is sufficient, if believed by the jury, to sustain the conviction. The instructions were fair, and no exceptions were taken thereto, and the defendant offered no additional instructions. The judgment and sentence is not excessive.

¶12 No material error is apparent, and the judgment and sentence of the district court of Garvin County is therefore affirmed.

BUSSEY and NIX, JJ., concur.