BREWSTER v. STATE

BREWSTER v. STATE
1968 OK CR 169
445 P.2d 534
Case Number: A-14484
Decided: 09/04/1968
Oklahoma Court of Criminal Appeals

An appeal from the District Court of Oklahoma County; Jack R. Parr, Judge.

Ulysses Charles Brewster was convicted for the crime of Burglary in the Second Degree After Former Conviction of a Felony and appeals. Affirmed.

William H. Lewis, Oklahoma City, for plaintiff in error.

G.T. Blankenship, Atty. Gen., Jerry H. Holland, Asst. Atty. Gen., for defendant in error.

BUSSEY, Judge:

¶1 Ulysses Charles Brewster, hereinafter referred to as defendant, was charged, tried and convicted for the crime of Burglary in the Second Degree After Former Conviction of a Felony. He was sentenced to serve a term of ten years in the Penitentiary, and from said judgment and sentence he appeals.

¶2 On appeal the defendant contends that the trial court erred in overruling his Motion to Suppress the introduction of any testimony and compounded this error by failing to remand the case back to the Justice of the Peace for a preliminary examination on the amended information. The pertinent part of the original information charged "* * * did then and there wilfully, unlawfully and feloniously break and enter a one-story frame dwelling, located at 1410 North Kate, in Oklahoma City, in said county and state, which said dwelling was then and there under the control of and in the possession of Lonzo Fuller * * *." Thereafter, the trial court entered the following order:

"On this 28th day of April, 1967, there comes on for hearing the Motion of the State of Oklahoma to show the victims of the burglary to be Lonzo Fuller and Katherine Fuller and the court being fully advised finds that said motion is proper and the State of Oklahoma is allowed to make said amendments instanter by interlineation."

It is the position of the defendant that the amendment was one of substance and not of form and that the cause should have been submitted back for a preliminary hearing. Title 22 Okl.St.Ann. § 304 provides:

"An information may be amended in matter of substance or form at any time before the defendant pleads, without leave, and may be amended after plea on order of the court where the same can be done without material prejudice to the right of the defendant; no amendment shall cause any delay of the trial, unless for good cause shown by affidavit."

¶3 We are of the opinion that this assignment of error is without merit for several reasons. The first is that the amendment was entered after a hearing on the State's Motion to Amend, on the 28th day of April, 1967, and no objection was taken to the ruling of the court or exception made thereto. Thereafter, the defendant announced ready for trial, completed the voir dire examination of the jury and did not raise this issue until the jury had been empaneled on the 10th day of May, 1967, some twelve days after the order had been entered, granting the State permission to amend the information.

¶4 Under these circumstances we are of the opinion that the defendant waived any objection to the amendment of the Information. However, had timely objection been interposed to the order of the court allowing the amendment and interlineation, we are of the opinion that this amendment was one of form rather than substance, since the evidence affirmatively discloses that Lonzo Fuller and Katherine Fuller were husband and wife and as such, they were jointly in possession of the property burglarized and either could testify as to their knowledge concerning the facts surrounding the burglary.

¶5 It is next contended that the court erred in refusing to grant the defendant the right to examine the police report relative to the time when the defendant was apprehended. Defendant did not cite any authority in support of this contention to the trial court when his application was made, nor did he recite any authority in his original brief; however, in his reply brief he cites authority that the report would be the "best evidence." With this contention we do not agree. It is abundantly clear that the State could not, as a part of its case in chief, introduce into evidence over the objection of defendant, the police report, prepared by the officer outside the presence of the defendant, for the same would be inadmissible as being hearsay. It is likewise true that the defendant had ample opportunity to cross-examine the officer relative to all the facts and circumstances relating to the arrest. We are therefore of the opinion that this assignment of error is without merit.

¶6 The defendant next contends "that the evidence shows he was arrested without a warrant on a charge of vagrancy, and that no crime or violation of law was committed in the presence of the officer, and that the same was illegal and all information and evidence obtained from this defendant was unlawful and illegal and should be suppressed." In order to deal with this assignment of error, we will briefly summarize the facts as reflected by the record.

¶7 Mr. Lonzo Fuller was, on the day of the burglary, an employee of Joe Esco Tire Company. He had gone to his home for lunch, eaten a sandwich, and returned to work. He testified at the time he left his home the doors were locked and that a television set which was found in the trunk of the car owned by one of the co-defendants (Daniels) was his television set which had been removed from his home without his consent on the 31st day of January, 1967. He last saw the set in his home at approximately 12:45 p.m. on that date. This witness further testified that when he returned home some time after 5:00 p.m., the television set was missing.

¶8 Mrs. Katherine Fuller testified that she was employed during the day between 8:00 a.m. and 4:00 p.m. and that when she returned home after work she discovered that the back door to the home had been pushed to, but was unlocked. She entered the house and discovered that the television set was missing. She identified the television set introduced on the trial as being the one that belonged to her and her husband. This witness further testified that she notified her husband when he returned home and that he notified the police.

¶9 Officer Douglas of the Oklahoma City Police Department stated that he had a search warrant for the vehicle owned by Sherril Eugene Daniels and that he stopped the car driven by Daniels in which the defendant and two other passengers were riding. He stated that he executed the search warrant which had been issued for the amount of $4,000.00 taken from an armed robbery of the O.K. Market. The officer searched the vehicle in execution of the warrant and being unable to open the trunk, asked the owner, Daniels, if he had a key to it. Daniels replied that he did not, whereupon the officers stated that they would have to forcibly search the trunk. It was at this point that Daniels directed the defendant to give the officers the key and the defendant handed the key to Officer Douglas, who opened the trunk and observed the television set there. The occupants of the car were then arrested for vagrancy and booked into the city jail where later, Officer Douglas in reviewing the stolen property report, discovered that a television set matching the description of the one which he had observed in the trunk of Daniels' car, had been reported as stolen. This officer then procured a search warrant for the Daniels' vehicle for the television set, and recovered the set from the trunk and the same remained in the stolen property room of the Oklahoma City Police Department until it was introduced into evidence on the trial.

¶10 The defendant's wife then testified to the fact that she was married to the defendant and was expecting a child.

¶11 The defendant testified in his own behalf that he was enroute from his home to the employment office on January 31, 1967, about 1:45 p.m., when he saw his codefendant, Daniels, and the other co-defendants, driving down the street. He hailed them and asked Daniels if he would drive him to the employment office, which Daniels agreed to do and shortly thereafter Daniels' car was stopped by Officers Douglas and King. This witness denied giving the key to Officer Douglas, but stated that he saw the fat one (Officer King) remove the key from the glove compartment of the car and unlock the trunk. The defendant denied having been at the home of Mr. and Mrs. Fuller on the 31st day of January, 1967, and denied having burglarized the premises or ever having seen the television set before.

¶12 Thereafter, the defendant rested and Officer King was called in rebuttal, where he denied having taken the key from the glove compartment of Daniels' automobile. He testified that he did not see Officer Douglas receive the key, but that Officer Douglas had opened the trunk of the vehicle with the key. He further testified that the search occurred at 1:00 p.m. on January 31, 1967.

¶13 From the foregoing recital of facts, it is clear that Officer Douglas searched the Daniels' car under the authority of a search warrant for the same; that the defendant (if the testimony of Douglas is to be believed, which apparently the jury did), at the request of his co-defendant, Daniels, took the key from his pocket and gave it to Officer Douglas who unlocked the trunk of the car where he observed the television set. It does not appear that any search was ever conducted or evidence obtained from the defendant as an incident of his arrest for vagrancy. Indeed, after the search warrant for the television set in Daniels' car had been executed and the set recovered, the officers sought to interrogate the defendant after advising him of his constitutional rights, and he declined to make any statement.

¶14 Under the facts here presented we are of the opinion that this contention of error is without merit.

¶15 It is lastly contended that the evidence is wholly insufficient to support the verdict of the jury. In this connection we observe that the evidence clearly establishes that the home of Mr. and Mrs. Fuller was burglarized some time after 12:45 p.m. on January 31, 1967, and that the television set was taken therefrom. The evidence on behalf of the State further establishes that the television set was in the trunk of the car owned by co-defendant Daniels at approximately 1:00 p.m. the same day, a number of blocks from the Fuller home where, at the direction of Daniels, the defendant produced the key to the trunk in which the television set was observed and from which it was later recovered under authority of a search warrant for the same. We are of the opinion that these facts and circumstances are sufficient to support the verdict of the jury, notwithstanding the conflicting testimony given by the defendant, for we have repeatedly held that:

"Where there is a conflict in the testimony, it is the exclusive province of the jury to weigh the evidence and ferret out the truth and if there is competent evidence to support their findings, this Court will not disturb the verdict on appeal."

See Groom v. State, Okl.Cr., 419 P.2d 286.

¶16 The judgment and sentence appealed from is affirmed.

NIX, P.J., and BRETT, J., concur.