Box v. State

• Decision Date: 17 January 1973
• Docket Number: No. A--17060,A--17060
• Citation: 505 P.2d 995
• Parties: C. S. BOX, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 995

505 P.2d 995

C. S. BOX, Appellant, v. STATE of Oklahoma, Appellee.

No. A--17060.

Court of Criminal Appeals of Oklahoma.

Jan. 17, 1973.

Rehearing Denied Feb. 5, 1973.

Red Ivy, Chickasha, for appellant.

Larry Derryberry, Atty. Gen., Charles L. Pain, Asst. Atty. Gen., for appellee.

OPINION

BRETT, Judge:

Appellant, C. S. Box, hereinafter referred to as defendant, was convicted in the District Court of Grady County, Case No. CRF 70--64, of larceny of domestic animals, and sentenced to four years imprisonment. Judgment and sentence was imposed on May 10, 1971, and this appeal perfected therefrom.

The evidence established that 11 cattle were taken without the permission of the owner from the pasture of Lee Wade on the evening of December 22, 1969, or early morning of December 23, 1969. The 11 stolen cattle were all two to three year old heifers, and branded on the left hip with a Flying V Brand registered to Wade. The north gate to the pasture from which the cattle were taken had been forced open by the cutting of a chain, and from the gate cattle tracks led to a corral with a loading chute.

The evidence further established that on the early morning of December 23, 1969, the National Livestock Commission Company, which sells cattle on consignment, at the Oklahoma City Stockyards, received from the defendant 11 cattle. Four cattle were received for sale from C. S. Box at 1:00 A.M.; four cattle were received for sale in the name of Larry Box at 3:00 A.M.; and three cattle were received from C. S. Box at 4:50 A.M. Checks were drawn payable to C. S. Box and Larry Box, respectively, in payment for the cattle. The records of the company further showed that said cattle were sold on behalf of the defendant to Fisher & Company on December 23, 1969. An employee of Fisher & Company testified that the cattle were sold to Henry Hitch and Merle Leslie. Photographs of the cattle sold to Hitch and Leslie were identified by Lee Wade as the cattle stolen from his pasture. The Flying V Brand was visible on the cattle and identified as Wade's. It was further established, partly through the testimony of a handwriting expert, that the checks drawn on the National Livestock Commission Company were endorsed by the defendant and that it was defendant's writing on the 'drive-in slips' or receipts made by the livestock company in receipt for the cattle received from defendant.

In defense, the defendant testified that Dwight McCarthy and Walter Adams, acquaintances of his son Larry, were at his home on December 22nd when he arrived after dark. According to the defendant, he, McCarthy and Adams left the Box residence for a place near where Lee Wade testified he had lost his cattle. At this location they found 12 cattle in a pen, which McCarthy said belonged to himself and his father. According to defendant, he offered McCarthy $1200 for the cattle, which offer was accepted. The cattle were then loaded up into the defendant's pickup in three separate loads. During one trip one cow got away and was lost. Defendant admitted signing and filling in the 'drive-in slips,' and endorsing the checks received from the National Livestock Commission Company. Thelma Box, defendant's wife, and Larry Box, defendant's son, testified and corroborated defendant's story, claiming a sale by McCarthy of the cattle to the defendant.

In rebuttal, Walter Adams testified that on December 26, 1969, defendant asked Adams to help load some cattle that defendant had found. According to Adams, the defendant picked Adams up at 4:00 P.M., and then went with Dwight McCarthy to where the cattle were located. After darkness they returned to the location of the cattle, where, according to Adams, a gate was chopped open with an ex belonging to the defendant, and the cattle were driven through the gate, down a road to a corral and loading chute. According to Adams, 11 cattle were then transported to the Oklahoma City Stockyard in three separate trips. Adams testified that the defendant gave him and McCarthy each $340 for their participation.

It is defendant's first contention that the trial court erred in overruling defendant's demurrer, contending that the evidence was insufficient to support conviction. As defendant views the facts, the State merely established that Lee Wade lost 11 cattle, and that defendant sold 11 cattle. Defendant complains the evidence is insufficient in that no one testified as to the defendant being at the scene of the alleged theft.

We find defendant's contention in this regard to be wholly without merit. For the evidence to support a conviction, it is not necessary that there be any eye witness to the actual theft, or a witness who can place the defendant at...