Booth v. State

• Decision Date: 23 December 1964
• Docket Number: No. A-13423,A-13423
• Citation: Booth v. State, 398 P.2d 863 (Okla. Crim. App. 1964)
• Parties: John Fletcher BOOTH, Jr., Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 863

398 P.2d 863

John Fletcher BOOTH, Jr., Plaintiff in Error, v.The STATE of Oklahoma, Defendant in Error.

No. A-13423.

Court of Criminal Appeals of Oklahoma.

Dec. 23, 1964.

Rehearing Denied Feb. 17, 1965.

Syllabus by the Court

1.Where stolen goods are recovered by owner or his agent before they are sold, goods are no longer to be considered to be stolen, and purchaser cannot be convicted of receiving stolen goods.

2.A defendant may not be convicted for receiving stolen property if property is no longer in the category of stolen property when he receives it.

3.An accused cannot be convicted of an attempt to commit a crime unless he could have been convicted of the crime itself, if his attempt had been successful.Where the act, if accomplished, would not constitute the crime intended, there is no indictable offense.

4.If all which the accused person intended would, had it been done, constitute no substantive crime, it cannot be a crime under the name 'attempt' to do, with the same purpose, a part of this thing.

5.Where a legal and not a factual impossibility prevents the commission of the crime itself, one cannot be convicted of an 'attempt' to commit that crime.

6.Where a stolen coat had been recovered by the police and subsequently, by pre-arrangement, turned over to the thief to be delivered to the would-be purchaser, purchaser could not be convicted of receiving stolen property because the coat had lost its character as stolen property when recovered for the owner.Neither could he be convicted of an attempt to commit the crime when a legal impossibility prevented its consummation.

Appeal from the District Court of Oklahoma County; John A. Brett, Judge.

John Fletcher Booth, Jr., was convicted of the crime of Attempting to Receive Stolen Property, and Appeals.Reversed with instructions to dismiss.

Malcolm Baucum and Carrol Samara, Oklahoma City, attorneys for plaintiff in error.

Charles Nesbitt, Atty. Gen., Jack A. Swidensky, Asst. Atty. Gen., for defendant in error.

NIX, Judge.

John Fletcher Booth, Jr., was charged by information in the District Court of Oklahoma County with the crime of Receiving Stolen Property, and was found guilty of the lesser crime of Attempt to Receive Stolen Property.The jury assessed his penalty at Two Years in the Oklahoma State Penitentiary, and to pay a fine in the amount of $150.00.From said judgment and sentence the defendant appeals.

The record before this Court reveals that this case arose out of a circumstance as testified to by a self-admitted, well-known thief bearing the name of Charley Stanford, whose FBI 'rap sheet' covers 8 pages of arrests extending over a period of 15 years.He was obviously braggadocio about his convictions and related from the witness stand that he had been arrested approximately 300 times on everything in the book, short of murder and rape.He admitted serving 4 terms in the penitentiary, and having been committed to a mental institution twice.He testified, in substance, that in the early morning hours he was walking in the parking lot at the YMCA in Oklahoma City and sighted a topcoat in a parked automobile.That he jimmied the window and removed the coat, took it to his home at 308 N.E. 8th Street, where he retired until about 7:00 at which time he proceeded down to a pay telephone where he called his attorney (the defendant herein).He testified that he advised him he had the coat he had ordered, and agreed to let him have the coat for $20.00.Arrangements were made for the defendant to meet him at the thief's home at approximately 11:00 A.M. where the transfer was to be made.He returned home, and a friend came by and invited him to go get a drink.He started from his house to his friend's car and was arrested by Lt. Anthony of the Oklahoma City Police Department.He was wearing the stolen coat at the time of his arrest.Lt. Anthony took Stanford to the police station, and asked him where he had gotten the coat and he confessed getting it from the car in the YMCA parking lot.

Lt. Anthony testified, in substance, that he received an anonymous telephone call at approximately 7:00 a. m. on the morning of the day in question, and proceeded to the YMCA and located the owner of the vehicle that had been burglarized.They went then to the vehicle and observed the wing glass had been broken, pried open, and a gray cashmere coat and some shirts were missing.Officer Anthony proceeded to the 300 block on N.E. 8th and saw an ex-convict by the name Charley Stanford leaving his house wearing a gray cashmere coat.Anthony then and there arrested Stanford for Burglary and took him to the police station.He then called Mr. Gothard to the police station, where he identified the coat as his and asked Lt. Anthony for the coat, but was advised that they needed it as evidence.Officer Anthony, Officer Reading and Stanford proceeded to 308 N.E. 8th taking the recovered coat with them.After arriving, they took their position behind a closet door containing 'peep-holes' and waited for the arrival of defendant Booth.According to the testimony of Anthony, the following transpired:

'A.We then went back to the 300 block on 8th Street and I concealed myself in the closet and Mr. Stanford stayed in the other part of the house which was a combination of or the apartment was a combination of a kitchen with a divan on the west side of the room.He laid the overcoat on the divan.And in the door of this clothes closet there was small pin holes and I left the door ajar slightly.Shortly after eleven o'clock Mr. John Booth came to the front door.* * *

'Q.May I ask you and interrupt you at this point.Is that person in the courtroom?

'A.Yes sir.

'Q.Would you please point him out to the Court and Jury, Officer?

'A.That person.(Points to defendant, John Booth)

'Q.Go ahead.

'A.Booth entered the house, and I heard Charlie say.* * * 'BY THE COURT: (Interrupting) Who do you mean by Charlie:

'A.Charlie Stanford.

'BY MR. THOMAS:

'Q.Then what?

'A.I heard Charlie Stanford say, 'John, I got the coat which you wanted.''I need the twenty dollars right away.'And Mr. Booth said, 'This is child support month, Charlie, come to my office later and I will give you a check.'

There was other conversation.

'Q.Was there any other conversation relative to the deal?

'MR. BAUCUM: Now we are going to object to that as leading and very suggestive, Your Honor.

'BY THE COURT: That's leading and suggestive.

'BY MR. THOMAS: I was just asking about the conversation.

'BY THE COURT: I know, but it has all the import of being one.You go ahead and ask the question, and the court will sustain the objection or overrule it, which ever is proper.Don't suggest anything to him.

'BY MR. THOMAS:

'Q.Officer Anthony you testified about * * *., STRIKE THAT.Officer Anthony, how long was Mr. Booth in the house?With Charlie Stanford?

'A.I would judge about ten minutes.

'Q.At which time you were in the closet?

'A.Yes, sir.

'Q.With the door ajar?

'A.Yes, sir.But I was looking mostly through the small pin holes.

'Q.Were you able to look through the holes?

'A.Yes, sir.

'Q.Tell what you observed.

'A.They came into this particular room.* * *

'Q.Who is 'they'?

'A.John Booth and Charlie Stanford.They * * * well, Booth picked up the coat in his arms and there was conversation of and he warned him that the thing was 'hot'.

'Q.Who warned who?

'A.Charlie Stanford warned John Booth that the thing was 'hot'.

'Q.That the coat was 'hot'?

'A.Yes, that's the way he termed it.

'Q.What did Mr. Booth say?

'A.He said, 'well, I know how to handle things like this, don't worry about it, Charlie.'

'Q.Then what happened?

'BY MR. SAMARA: I object your honor, it is going beyond the scope of direct examination.And involving matters that are unconcerned.

'BY THE COURT: The objection will be overruled.

'BY MR. THOMAS:

'Q.You testified that Charlie Stanford told him the coat was 'hot'.

'A.He warned him the coat was hot, it was criminal talk, hot or stolen.

'Q.What did Booth say?

'A.Booth said 'I know how to handle these things'.

'Q.'I know how to handle these things'?

'A.Yes, and 'don't worry about it, Charlie.'

'Q.Then what happened?

'A.At this point they went into a rest-room and what went on in there, I didn't hear.Then they came back out, and Booth went to his car and put the coat in the turtle-back of his car and then returned to the house and that is about all that occurred.

'Q.Altogether then Mr. Booth was in Charlie Stanford's house about how long?

'A.About ten minutes.

'Q.Did he leave?

'A.Yes, he left.'

After taking Stanford to the police station, Anthony obtained a search warrant and then maintained a surveillance of Booth's house until he arrived.He then entered the premises, arrested Booth, and again recovered the coat.

Though defendant Booth was charged with Receiving Stolen Property, at the conclusion of the evidence and after the state and defendant had rested their case, the trial judge gave the following instruction:

'You are instructed that under the law of this case you are at liberty to consider only the included offense of whether the defendantJohn Fletcher Booth may be guilty of the crime of Attempt to Receive Stolen Property.In this regard you are instructed, an attempt to commit a crime is defined as being the compound of two elements.

'(1) The intent to commit a crime.(2) A direct ineffectual act done towards its commission.

'Preparation alone to an attempt to commit a crime is not sufficient. * * *'

No doubt this instruction was given based upon the theory that once stolen property has been recovered by the police it loses its character as stolen property.This appears to have been the contention of defense counsel as reflected by the record.When defendant rested his case, the following Motions were made:

'Comes now the defendant at the close of the evidence of the state heretofore rested their case and demurs to the...