Howell v. State, F-79-240

• Decision Date: 21 July 1981
• Docket Number: No. F-79-240,F-79-240
• Parties: Gene HOWELL, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1223

632 P.2d 1223

Gene HOWELL, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-79-240.

Court of Criminal Appeals of Oklahoma.

July 21, 1981.

An appeal from the District Court, Okfuskee County; Jess I. Miracle, judge.

Gene Howell, appellant, was convicted of the offense of Larceny of Domestic Animals; was sentenced to three (3) years' imprisonment, provided appellant make restitution within six (6) months; and otherwise to five (5) years' imprisonment. Judgment of guilt is AFFIRMED and the case is remanded to the District Court for resentencing.

Kenneth W. Lackey, Lackey & Wendel, Eufaula, for appellant.

Jan Eric Cartwright, Atty. Gen., William S. Flanagan, Asst. Atty. Gen., Mary Bryce Leader, Legal Intern, for appellee.

ORDER WITHDRAWING OPINION AND ISSUING NEW OPINION

WHEREAS, on March 9, 1981, this Court filed an opinion in the above styled and numbered cause, and on March 16, 1981, a Petition for Rehearing was duly filed;

NOW, THEREFORE, after considering the Petition for Rehearing, this Court finds that the decision rendered herein on March 9, 1981, should be withdrawn, and the attached opinion issued in lieu thereof.

IT IS SO ORDERED.

WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 21st day of July, 1981.

TOM BRETT, P. J.

HEZ J. BUSSEY, J.

OPINION

BRETT, Presiding Judge:

The appellant, Gene Howell, was convicted of Larceny of Domestic Animals, 21 O.S.1971, § 1716, in the District Court of Okfuskee County, Case No. CRF-78-4. On appeal he challenges the correctness of the verdict, complains of the prosecutors' conduct and alleges the commission of several procedural errors.

The following facts are undisputed. On January 15, 1978, the victim, Omer Henry, went to his pasture and fed fifteen (15) of his Hereford cattle. When he returned two days later the cattle were gone. A few days after that, when the snow had melted, Mr. Henry, his brother and the sheriff found cattle and horse tracks leading to a corral in an adjoining pasture. That pasture was rented by the appellant.

Some of the cattle were found two weeks later in Arkansas, and they were traced back to a commission company in the Tulsa stockyards. The appellant had delivered the cattle to the stockyards in the afternoon and evening of January 15, and had sold the cattle in his own name.

The appellant admitted having sold the cattle but denied having moved them from Mr. Henry's pasture to the corral. He claimed instead that when he went to the location to hunt, a black man was there with the cattle. The appellant said that he bought the cattle with cash without asking for a receipt from the man, whom he had not seen before or since the transaction.

In his first assignment of error, the appellant argues that the trial court should have granted him a continuance when he changed attorneys. In his brief, he alleges that it was through no fault of his own that his first counsel withdrew, but the trial transcript indicates that he terminated his first counsel after a dispute. The need for a continuance depends entirely upon the particular facts of a case, and for that reason a motion for a continuance is addressed to the trial court's discretion. Riddle v. State, 374 P.2d 634 (Okl.Cr.1962); Bowman v. State, 585 P.2d 1373 (Okl.Cr.1978), cert. denied, 440 U.S. 920, 99 S.Ct. 1243, 59 L.Ed.2d 471 (1979). The facts of the present case do not indicate that the trial court abused its discretion by denying the motion.

The second assignment of error is that the trial court should have stayed the proceedings when it was discovered that prospective jurors who had not been excused failed to appear. (The record reveals that there was only one such unexcused absence.) An unexcused absence is not one of the statutory grounds for challenge to a jury panel. Title 22 O.S.1971, § 633. In Beatty v. State, 5 Okl.Cr. 105, 113 P. 237 (1911), this Court held it proper for a trial court to interrupt the voir dire proceedings and send for an absent juror; but in no case has it been held error for a trial court to refuse to do so and to proceed with the jurors who are present. Since the appellant has neither shown nor alleged prejudice as a result of the absence of the prospective juror, this assignment is also without merit.

Third, the appellant contends that the jury's verdict was contrary to both the law and the evidence. In his argument, he stresses that he made no effort to conceal his actions and that all the evidence presented is consistent with the explanation he gave. This is a question of fact which was decided by the...