Brannon v. State

• Decision Date: 25 July 1951
• Docket Number: No. A-11371,A-11371
• Citation: 234 P.2d 934,94 Okla.Crim. 261
• Parties: BRANNON v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 934

234 P.2d 934

94 Okla.Crim. 261

BRANNON v. STATE.

No. A-11371.

Criminal Court of Appeals of Oklahoma.

July 25, 1951.

Syllabus by the Court.

1. An assignment of error that there was a fatal variance between the allegations of information and proof, not urged in the court below, and not a ground for reversal presented in petition in error, need not be considered.

2. Only questions which were raised in the trial court and an adverse ruling thereon, exceptions taken, and then incorporated in a motion for new trial, and assigned as error in the petition in error, will be considered on appeal, except that jurisdictional questions may be raised at any step in the case.

3. An assignment that there was a fatal variance between the allegations of the information and the proof is not a matter that goes to the court's jurisdiction.

4. When an offense involves the commission of, or an attempt to commit a private injury and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material. Tit. 22 O.S.1941 § 406.

5. It is well settled that in a prosecution for larceny, the name of the owner of the property stolen is only required to identify the transaction, so that the defendant, by proper pleading, may protect himself against another prosecution for the same offense. The actual status of the legal title to stolen property is no concern of the thief; so far as he is concerned, one may be taken as the owner who is in possession of the property and was unlawfully disturbed by the taking.

6. The presumption arising from the possession of recently stolen property is one of fact, and not of law. It is a circumstance for the jury to be considered and weighed along with all the other evidence in the case. If the possession is unexplained or if it is unsatisfactorily explained, or the explanation, even though plausible, is not believed, the jury will accord it such weight as they deem right and proper. They are the sole judge as to its weight, and when such fact with the other facts and circumstances in evidence, when given due weight, satisfy the jury beyond a reasonable doubt of defendant's guilt, it is sufficient to sustain the verdict.

7. An objection to the sufficiency of an indictment cannot be raised for the first time upon appeal, unless it appears that the indictment does not charge any criminal offense within the jurisdiction of the court.

Earl E. James, Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.

POWELL, Judge.

The plaintiff in error, James Oliver Brannon, hereinafter referred to as defendant, was tried and convicted by a jury in the district court of Oklahoma County for the crime of larceny of an automobile, the punishment was left to the court, and defendant was sentenced to a term of three years in the State Penitentiary, this being the minimum sentence provided by the applicable statute, Tit. 21 O.S.1941 § 1720, as amended, Laws 1945, p. 96, § 1.

In the indictment the offense was alleged to have been committed by the defendant in Oklahoma County on the 10th day of August, 1949, by stealing a 1949 Ford automobile, the personal property of Hugh Carroll. The case is regularly here on appeal.

For reversal, it is first contended that the trial court erred in overruling defendant's demurrer to the evidence, on the ground of a fatal variance between the allegations in the indictment and the proof relating to the ownership of the automobile alleged to have been stolen. Counsel for defendant says: '* * * The proof that a car was taken by someone from a different corporation or person constitutes a fatal variance. The mere fact that this car was found in the hands of this defendant, and the defendant successfully explains its possession, does not sustain the verdict of the jury in finding the defendant guilty of theft.'

Note is taken of the fact that the indictment alleges that the defendant did '* * * take, steal and drive away from the immediate possession and control of the owner thereof, Hugh Carroll, one certain automobile, to-wit: a 1949 Ford Coach, blue color, Motor No. 98 BA 182733, bearing 1949 Oklahoma License No. 1-72346, and the personal property of said Hugh Carroll, * * *.'

For the State, Hugh Carroll testified that he had been for about twenty years acting in the capacity of president of the Selected Investments Corporation, the home office being located at 312 N. W. First Street, Oklahoma City. That in November, 1949, he purchased the 1949 Ford car involved in the within case, for his company. Counsel for defendant excepted to statements concerning the car in question being owned by the Selected Investments Corporation as being incompetent, irrelevant and immaterial, and for the reason that defendant was charged with stealing the car from Hugh Carroll. The objections were by the court overruled, and counsel for defendant duly excepted.

Witness Carroll described the car involved as being a two-door sedan, blue in color, Motor No. 98 BA 182733, Oklahoma Tag No. 1-72346, and stated that on or about Wednesday, August 10, 1949, the car was parked at the McDonald Service Station, located at 3rd and Hudson, in Oklahoma City. He further testified that W. A. Rigg, vice-president of the Company, had looked after the parking of the car there; that this car and other cars were kept by the Company for the use of department heads in conducting the Company's business, such as viewing and appraising real property, etc. Witness stated that about 5 o'clock on the afternoon of August 10, he first learned that the car was missing from the lot, and that about 7 o'clock the same evening he checked again and the car was still missing and that he called the Police Department and reported the car as stolen.

Lynwood O. Neal, employee of Selected Investments Corporation, stated that he needed the use of a car in Company business on August 10, and could not locate it out at the McDonald parking lot, and he commenced checking to determine who last used the car. Witness stated that the Company kept a memorandum pad on which users of the car were required to register and that Houston Norman was the last user of the car. The exact hour the car disappeared was not known, but it was first missed about 2 o'clock in the afternoon of August 10, 1949.

Houston Norman, employee of the Selected Investments Corporation, testified that he was the director of his Company's automotive finance division; that he used the car involved in the within prosecution on August 9; that after using it he parked it in the McDonald parking lot at 3rd and Hudson, Oklahoma City between 10 and 11 o'clock a. m., and that this was on Tuesday, August 9.

D. E. Onstott testified for the State, saying that he was a service station operator at Cushing, Oklahoma, and that he had known James Oliver Brannon, whom he pointed out and identified, for a year or so. That on August 13, 1949, the defendant drove into his station and purchased some gasoline, that he was driving a 1949 Ford coach, and that defendant told him that he was then working in the oil fields for the Wilcox Drilling Company; that he paid for the gasoline by check; that he had a Craig County tag on the car, the first number being a '5', that a record was made of the tag number. Witness further stated that defendant drove the same car in his station again for gasoline on August 15, and witness advised defendant that he would not accept any more checks, and witness not having any money to pay for the gas obtained, the same was charged. The same tag was still on the car. Witness further stated that the first time defendant drove in his station another boy was in the car with defendant, being about the same size as defendant, but that defendant was driving. Witness investigated and found out that the tag on the car being driven by defendant was registered in another person's name.

T. E. Hall, highway patrolman, testified that he was called on to make an investigation of a blue 1949 Ford; this was on August 14, and on August 15 he located the car at a beer 'joint' on Highway 33 at the east edge of Cushing; that he had already had a tag-check made on the car and that it did not check out; that he went in the beer place and asked for the driver and that the defendant Brannon spoke up and said the car was his. Witness then checked and found the motor number to be 98 BA 182733, this being the motor number of the car reported stolen; that he asked the defendant for his title papers and defendant stated that he had just recently left New Mexico and left the papers out there. He further told witness that he had purchased the car from a person named Cox in Tulsa for $200 cash, but that he did not know this man's first name and did not know his address, and did not have a receipt. Witness stated that defendant was drinking a bottle of bear when he entered the beer place, and that he acted very nervous.

B. F. Cravatt, police officer in the Detective Division assigned to the Auto Theft Division of the Oklahoma City Police Department, testified that on August 10, 1949, they had a theft reported on a 1949 Ford reported stolen from the Selected Investments Corporation, Mr. Hugh Carroll, the engine number 98 BA 182733, that they made an investigation and on August 15 the car was recovered at Cushing and he learned that it was placed with the Cushing police department.

This completed the evidence on the part of the State. Counsel demurred, assigning as grounds that the evidence was wholly insufficient to support a charge of larceny on the part of the defendant. Counsel also moved for a directed verdict of not guilty. The court overruled both the demurrer and the motion.

Mrs. Albert Jacob, testifying for the defendant, stated that he was her cousin, that she lived in Cushing and was a housewife; that at...