Battles v. State

• Decision Date: 18 June 1969
• Docket Number: No. A--14535,A--14535
• Citation: 459 P.2d 623
• Parties: Bobby BATTLES, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 623

459 P.2d 623

Bobby BATTLES, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A--14535.

Court of Criminal Appeals of Oklahoma.

June 18, 1969.

Rehearing Denied July 30, 1969.

Second Rehearing Denied Oct. 20, 1969.

Syllabus by the Court

1. If a peace officer arrest a person without a warrant, he is not bound to show in his justification a felony actually committed to render the arrest lawful, but if he suspects one on his own knowledge of facts, or upon facts communicated to him by others, and thereupon has reasonable ground to believe that the accused has been guilty of a felony, the arrest is not unlawful.

2. The constitutional guaranty against unlawful search and seizure does not prevent seizure incident to a lawful arrest where the evidence is not concealed but in open view, and where it would logically tend to prove elements of the offense charged.

3. Larceny is the taking of personal property accomplished by fraud or stealth and with intent to deprive another thereof. Title 21, Okl.St.Ann. § 1701.

4. All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, are principals. Title 21, Okl.St.Ann. § 172.

5. The distinction between an accessory before the fact, and a principal, and between principals, in the first and second degree; in cases of felony, is abrogated, and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, must be prosecuted, tried, and punished as principals and no additional facts need be alleged in any indictment or information against an accessory than are required in an indictment or information against his principal.

6. Proof that defendant aided and abetted the principals in the commission of the crime can be proven by circumstantial evidence, and if sufficient, as in the instant cause, will support the verdict.

An appeal from the District Court of Garvin County; Joe D. Shumate, Judge.

Bobby Battles was convicted of the crime of Grand Larceny, After Former Conviction of a Felony, sentenced to Ten Years in the penitentiary, and appeals. Affirmed.

Otto Pluess, III, Oklahoma City, for plaintiff in error.

G. T. Blankenship, Atty. Gen., Gene Hoyt, Asst. Atty. Gen., for defendant in error.

NIX, Judge:

Plaintiff in error, Bobby Battles, hereinafter referred to as the defendant, was charged in the District Court of Garvin County with the crime of Grand Larceny, after Former Conviction of a Felony. He was tried by a jury, found guilty, and his punishment assessed at Ten Years in the penitentiary. From that judgment and sentence he has appealed to this Court.

From the record, the testimony presented on behalf of the State, briefly stated, is as follows: Joe Butts of Lintz Department Store in Pauls Valley, testified that on February 4, 1967, as he was returning from lunch at approximately 12:30, he saw the defendant, Bobby Battles, and another man leaving the store. He stated they returned in 5--10 minutes with three women. He stated that they all separated, moving all over the store. That he didn't see them take anything, but was alerted by their unusual behavior. Stated they would take an employee from the front of the store, and insist on the clerk accompanying them to look at an item at the rear of the store, which would leave the front of the store without a sales clerk. He described one of the women as very large, and wearing colored glasses. Lewis Kehl, manager of C. R. Anthony Store, directly across the street from Lintz', testified that he saw defendant on February 4, 1967, in his store just before noon. That three suits were taken from the store that day. That the suits were in the store that morning, were not sold, and were gone after defendant and his companions left. He further stated that defendant and four others, a total of five, (2 men and 3 women) came into the store and spread out. That defendant and the other man were right at the suits when witness went up to wait on them. That one of the ladies came up and asked him to come and wait on her for a sweatshirt, and the other two ladies came up to the suits just as he left to wait on the first lady. He further identified the suits, and after a hearing conducted out of the presence of the jury, the suits were admitted into evidence. Mr. Kehl further stated the man with defendant was approximately the same height, and a little heavier. He described the women as one very large woman with colored glasses on, and two smaller women. Several officers testified as to the arrest and finding the suits in the car, which we will cover more thoroughly later. Marguerite Laverne McCoy, testified that on February 4, 1967, defendant came by her home and picked her up in a white convertible. He was accompanied by Victor Lewis. They then picked up Billie Jean Davenport and went to Pauls Valley. Another lady was riding with them by the name of Josephine Thompson. Witness stated the three women went into a dress shop, and took some things and put them in the car. Defendant Battles then told them to go into Lintz Department Store and they would have to 'pull the clerks' for the purpose of taking some men's suits. That they didn't get anything in Lintz', and then proceeded to C. R. Anthony Store. She stated nothing was taken while she and defendant were in there, but that one of their group took something, she presumed were these suits. She stated that their purpose in coming to Pauls Valley was to shoplift, and that it was defendant's idea. She stated she was serving time in the penitentiary for this crime. Billie Jean Davenport stated defendant came by for her on February 4, 1967 in a white Pontiac convertible, and asked her if she wanted to go to 'work'--meaning shoplifting. She testified substantially the same as Marguerite Laverne McCoy up to stating that she (Davenport) took a suit from Anthony's by concealing it up under her clothes. That they were all supposed to share in the profit from these suits or anything taken. That they give so much to the person who 'turned' (the clerks) for you. That she was incarcerated in the penitentiary for Grand Larceny from Garfield County which had occurred on October 19, 1966. That she still had two charges pending in Garvin County. The defendant did not refute any of this testimony.

Defendant's first allegation of error is that the trial court erred in allowing three suits of clothing found in the defendant's car to be introduced at trial. The evidence relating to this was on the motion to suppress hearing held out of the presence of the jury, wherein the arresting officer, Martin Osleger testified that they had received a radio call stating a grand larceny had been committed, and he had reason to believe that a felony had been committed, and that the defendant and his companions had committed it. That defendant was not in the car that the suits were found in--it was stopped about 100 feet from this car. He further stated that...