Ballard v. State

• Decision Date: 26 October 1939
• Docket Number: A-9558.
• Citation: 95 P.2d 239,68 Okla.Crim. 39
• Parties: BALLARD v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

95 P.2d 239

68 Okla.Crim. 39

BALLARD v. STATE.

No. A-9558.

Court of Criminal Appeals of Oklahoma

October 26, 1939

Syllabus by the Court.

1. The presumption arising from the possession of recently stolen property is one of fact, and not of law, and if unexplained is a circumstance to be considered, and given such weight as the jury may deem proper. The jury is the sole judge as to the testimony offered. This judgment will not be set aside unless in the opinion of the court there was no evidence to sustain it.

2. Instructions examined and found to properly present the issues involved.

3. Judgment and sentence of ten years in the penitentiary modified to five years, and affirmed.

Appeal from District Court, Tulsa County; Floyd E. Staley, Judge.

G Ballard was convicted of larceny of an automobile, and he appeals.

Judgment modified and, as modified, affirmed.

Ward Justus & Ward, of Tulsa, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for the State.

BAREFOOT Judge.

The defendant was charged in Tulsa County with the larceny of an automobile; was tried, convicted and sentenced to serve a term of ten years in the penitentiary, and has appealed.

It is contended that the verdict is contrary to the law and the evidence, for the reason that it is insufficient. The evidence revealed that on the evening of July 14th, 1937, Mrs. Francis Bowder, the owner of a Chevrolet automobile, and her husband, parked the same across the street from the Morningside Hospital, in the City of Tulsa. When they returned in about twenty minutes the automobile was gone. On July 31st, 1937, she recovered her car at the Police Station in the City of Tulsa. The same had been taken from the possession of defendant, who, in company with a young lady, was driving along the streets of the City of Tulsa.

Certain officers, who had been looking for defendant, saw him leave a certain building, in company with a lady companion. They entered the automobile and started the motor. The defendant was arrested, together with his woman companion, and another party, all of whom were charged with the larceny of the automobile. Defendant asked a severance, and it was granted. The case against the woman was dismissed.

The officers, after arresting defendant, found in the car what they designated as a "jumper". This was explained by the officers to the jury as being "a piece of wire to wire around the switch". It eliminates the necessity of a switch key. "It is used to wire around the switch, they attach one clip to the hot end, and the other attaches to the coil and it goes by the switch". This instrument was offered in evidence and exhibited to the jury. An examination of the automobile by the officers also revealed that the tag number of the car had been changed from a 1937 Chevrolet sedan, License No. 249-361, to a 1935 Model Coupe, License No. 243-985. The motor number on the engine had not been changed.

The officer making the arrest was asked to state the conversation had with defendant at the time he was arrested. He said: "I asked him where he got the car, and he said he borrowed it from a fellow, and I said: 'Who', and he said he did not know the name."

The defendant did not take the witness stand as he had a right not to do under the law, nor did he present any evidence, but rested his case upon the ground that the evidence offered by the state was insufficient to sustain a conviction, claiming that the evidence only showed possession of recently stolen property, and was, therefore, insufficient to warrant a conviction.

This question has been before this court many times. The cases cited by defendant to sustain his contention: Patton v. State, 54 Okl.Cr. 393, 22 P.2d 116, 117; Blumhoff v. State,

29 Okl.Cr. 4, 231 P. 900; Walker v. State, 62 Okl.Cr. 196, 70 P.2d 1099; Shaw v. State, 13 Okl.Cr. 511, 165 P. 617; Dickey v. State, 62 Okl.Cr. 72, 70 P.2d 127; Cheeves v. State, 18 Okl.Cr. 480, 196 P. 726, 727, when read do not sustain his contention. Many of them are similar to the facts in the instant case, and are authority for the upholding of the verdict rendered in this case. A careful reading of the ones in which the judgment of the trial court was reversed will reveal a substantially different state of facts from those here under consideration. The rule that has been followed by this court from the early days is that the presumption arising from the possession of recently stolen property is one of fact, and not of law, and if unexplained, is a circumstance to be considered, and given such weight as the jury may deem proper. The jury is the sole judge as to the weight of the testimony offered. This judgment will not be set aside unless, in the opinion of the court, there was no evidence to sustain it. Cox v. Territory, 2 Okl.Cr. 668, 104 P. 378; Cheeves v. State, 18 Okl.Cr. 480, 196 P. 726, 728; Patton v. State, 54 Okl.Cr. 393, 22 P.2d 116, 117; Bidwell v. State, 28 Okl.Cr. 1, 228 P. 614; Worley v. State, 31 Okl.Cr. 253, 238 P. 225; Lynn v. State, Okl.Cr., 72 P.2d 846.

The true rule is expressed by Mr. Bishop, 2 Bish. New Criminal Procedure, ...