Vick v. State, A-11134
| Decision Date | 10 May 1950 |
| Docket Number | No. A-11134,A-11134 |
| Citation | 91 Okla.Crim. 303,218 P.2d 389 |
| Parties | VICK v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court
1. The credibility of the witnesses and the weight to be given their testimony is within the exclusive province of the jury to determine, and the jury may believe the testimony of a single witness upon a question of fact and disbelieve the testimony of several testifying to the contrary.
2. In prosecution for the sale of personal property covered by chattel mortgage it is not necessary for the prosecution to affirmatively allege in the information and prove that the intangible tax on the note secured by the chattel mortgage has been paid.
H. M. Shirley, Coalgate, attorney for plaintiff in error.
Mac Q. Williamson, Atty. General, attorney for defendant in error.
The defendant, Carl Vick, was charged in the District Court of Coal County with the crime of unlawfully disposing of property covered by chattel mortgage, was tried, convicted and pursuant to the verdict of the jury was sentenced to pay a fine of one hundred dollars and has appealed.
Two propositions are presented in the brief of defendant. First, the evidence was insufficient to sustain the conviction. Second, the court erred in not dismissing but action when the state failed to affirmatively show that the intangible tax had been paid on the note in question.
There was a sharp conflict in the testimony of the prosecuting witness and the defendant and we quite frankly state that had we been on the jury our verdict would probably have been for the defendant. However, the jurors of Coal County heard the evidence, saw the demeanor of the witnesses upon the stand, were familiar with the conditions described by the witnesses and have returned their verdict upon this conflict of evidence. Even though we feel that had we been on the jury we would have voted for acquittal, still under the established law of the state we do not feel justified in substituting our judgment for that of the jurors upon these disputed questions of fact where there is ample competent evidence if credited by the jury to sustain their findings.
W. L. Baughman who operates a beer parlor and pool hall was the prosecuting witness. He testified that he sold the defendant 13 head of cattle in August, 1947 and took a note and chattel mortgage in the sum of $1155.00 from the defendant which was due on October 16, 1947. That the chattel mortgage covered the 13 head of cattle and 750 bushels of corn.
Baughman further testified that after the note became due the defendant came to his place and told him that he didn't get the corn out of the field and asked him to let the note ride a little longer; that nothing was done until January, 1948; that in January he tried to foreclose his mortgage but could not find any of the corn.
John McGinnis testified that on December 29, 1947 he hauled 100 bushels of corn from the defendant's place to Limestone Gap; that part of the corn was in the field and part had been gathered; that he delivered the corn to John McEntire.
Clark McEntire testified that he lived at Limestone Gap and purchased some corn from the defendant. Upon objection being made to the testimony of this witness the court sustained the objection upon the theory that the information alleged a sale of the mortgaged property to Frank Langford and C. L. Taylor and that therefore it would be improper to admit evidence of sales to other parties.
Frank Langford testified that in October he bought 106 bushels of corn from the defendant; that he got the corn out of the barn and off of a wagon there at the place defendant was farming.
C. L. Taylor testified that in November he purchased $237.75 worth of corn from the defendant; that the corn was in two fields there at defendant's place.
W. L. Baughman being recalled as a witness testified that the corn upon which he had a mortgage was in the field on the Perkins place.
The defendant testified that in 1946 he purchased 50 head of cattle from Baughman; that he borrowed the money at the Case State Bank in Stonewall; that Baughman signed the note with him for $1907.00; that the note was executed on January 29, 1947 and a mortgage was given on the fifty head of cattle and other livestock belonging to the defendant plus his crop for 1947, consisting of 12 acres of corn, 12 acres of peas, and other crops. The defendant testified that he paid about $900.00 on this note; that in the fall of 1947 the defendant suggested that he make the note and mortgage, which is the subject of this complaint, so that he could take them to the bank at Stonewall and get an extension on the old note which he and plaintiff had signed; that he signed the note and mortgage at which time there was no consideration at all given for the note; that he later asked Baughman to give him back the note and mortgage and Baughman refused to do so. The defendant said that the corn sold to Taylor and Langford as testified to by them was corn which he and his brothers had raised and was not covered by mortgage to anybody.
The brothers of defendant each testified in his behalf and verified the testimony of defendant that the corn which was sold was corn raised by the brothers and was not covered by a mortgage.
C. S. Case, President of the Case State Bank at Stonewall, testified concerning the transaction which defendant and Baughman had with his bank in connection with the loan of $1907.00. He testified that when this note...
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