Atterberry v. State, F--76--663
| Decision Date | 15 October 1976 |
| Docket Number | No. F--76--663,F--76--663 |
| Citation | 555 P.2d 1301 |
| Parties | Oscar ATTERBERRY, Jr., Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appellant, Oscar Atterberry, Jr., hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Rogers County, Case No. CRF--75--210, for the offense of Unauthorized Use of a Motor Vehicle in violation of 47 O.S.1971, § 4--102. The jury returned a verdict fixing the defendant's punishment at five (5) years' imprisonment. The trial court pronounced judgment and sentence in accordance with the verdict. From this judgment and sentence an appeal has been filed with this Court.
Judy Neighbors had purchased and was in possession of a 1969 Oldsmobile 442, serial number 344879M12958, but had not acquired title from the previous owner. On November 1, 1975, she drove the car to the Big 2 Club in Oologah, arriving at approximately 11:00 p.m. The ignition lock on the car did not work and it could be started without a key. Also, the door on the driver's side would not lock. When Neighbors emerged from the club at approximately 3:00 a.m., she discovered her car was gone. She located her car at the Hendrix D. X. Station around 2:00 p.m. the same day. Neighbors had not given anyone permission to use the car.
Norman Loeffler, the owner of the Hendrix D. X. Station, ran a twenty-four hour wrecker service. He was called to the Four-Mile Creek bridge near the Big 2 Club at approximately midnight on November 1, 1975. A black Oldsmobile was in a ditch resting on its front end. He hooked the wrecker line onto the car, subsequently removing the car to his station. Loeffler identified the defendant as the sole occupant of the car. One door on the car was jammed. Loeffler saw the defendant, who was bleeding, pulled through the rear window of the car. Loeffler was present when Judy Neighbors came to his station and identified the car as belonging to her.
Trooper Gene Lockwood of the Oklahoma Highway Patrol was called to an accident at the Four-Mile Creek bridge at approximately 11:30 p.m. on November 1, 1975. He saw a 1969 black Oldsmobile with its windows open lying off an embankment at the edge of the bridge. In his opinion it would have been very difficult to open either door of the car due to the damage it had suffered. He saw the defendant lying in the car across the folded-down front passenger seat. He waited until the wrecker arrived before attempting to get the defendant out of the car. He estimated the accident had occurred at approximately 11:10 p.m. He said an Oologah police officer had received a report of the accident and notified the Highway Patrol.
After the State had presented the above testimony, it rested. The defendant offered no testimony in his behalf. He requested two instructions on lesser included offenses to Unauthorized Use of a Motor Vehicle, both of which were denied by the trial court.
The first assignment of error is that the trial court erred in refusing the defendant's second requested instruction on the lesser included offense of Tampering with a Motor Vehicle. The requested instruction follows the language of 47 O.S.1971, § 4--104(b) which says:
'(b) A person, who, without right to do so and with intent to commit a crime, climbs into or upon a vehicle whether it is in motion or at rest, attempts to manipulate any of the levers, starting mechanism, brakes or other mechanism or device of a vehicle while the same is at rest and unattended, Or sets in motion any vehicle while the same is at rest and unattended is guilty of a misdemeanor.'
The defendant was charged under 47 O.S.1971, § 4--102, which says:
'A person not entitled to possession of a vehicle who, without the consent of the owner and with intent to deprive him, temporarily or otherwise, of the vehicle or its possessions, takes, uses or drives the vehicle is guilty of a felony.'
The above statutes must be considered in conjunction with 22 O.S.1971, § 916, which states:
'The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.'
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Hale v. State, F-84-208
...at the victim's residence, but it is well established that elements of a crime may be proved by circumstantial evidence. Atterberry v. State, 555 P.2d 1301 (Okl.Cr.1976). Evidence in this case included unusual circumstances where the victim didn't show up for work and was absent from his ho......
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In re Adoption of the 2019 Revisions
...v. State, 1972 OK CR 153, ¶ 8, 497 P.2d 1106 , 1107 (Okl. Cr. 1972); Magness, supra. But see Atterberry v. State, 1976 OK CR 257, ¶ 9, 555 P.2d 1301, 1303-1304 (Okl. Cr. 1976) (error to refuse lesser-included instruction where State's proof raised inferences justifying conviction either for......
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King v. State, F--76--900
...is not justified by the evidence presented since only one inference could be drawn from the evidence presented. See Atterberry v. State, Okl.Cr., 555 P.2d 1301 (1976). The defendant's next assignment of error urges that the trial court erred in overruling the defendant's challenge of prospe......