Calhoun v. State

• Decision Date: 22 September 1965
• Docket Number: No. A-13664,A-13664
• Citation: 406 P.2d 701
• Parties: Laverne CALHOUN, 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 701

406 P.2d 701

Laverne CALHOUN, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-13664.

Court of Criminal Appeals of Oklahoma.

Sept. 22, 1965.

Syllabus by the Court

1. Conjoint robbery is merely robbery as defined by statute when committed by two or more persons. 21 O.S.A. §§ 791-800.

2. Before physical object allegedly used in commission of robbery by force is admitted in evidence, it must be sufficiently connected with the crime itself by proper identification, but it is not necessary that such identification should positively and indisputably describe such article, and if it is sufficiently described to justify its admission in evidence, the lack of positive identification goes to the weight of such evidence, rather than its admissibility.

3. Trial judge should carefully refrain from saying or doing anything during course of trial which would in any way indicate to jury that he has an opinion as to guilt or innocence of accused.

4. It is not improper for trial judge, after a jury has been deliverating for some time, to call them into court to ascertain whether there is reasonable probability of reaching a verdict and to inquire of the likelihood of them doing so. However, the court must exercise great caution to say nothing tending to coerce an agreement, to indicate his feelings in the case, or to invade the province of the jury.

5. A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof. 22 O.S.A. § 742.

6. Each fact and circumstance relied upon to corroborate testimony of accomplice need not, standing alone, establish a connection between the defendant and crime, but it is sufficient if all facts and circumstances, when considered together, are consistent with each other and inconsistent with any other reasonable hypothesis but defendant's connection therewith.

7. Evidence corroborative of an accomplice need not directly connect the defendant with the commission of the crime. It is sufficient if it tends to connect him with its commission.

8. Evidence corroborating an accomplice and tending to connect the defendant with the commission of the crime need not be direct, but may be circumstantial only.

Appeal from the District Court of Bryan County; Ralph B. Hodges, judge.

Laverne Calhoun was convicted of the crime of conjoint robbery by force, and appeals. Affirmed.

Wilson Waters, Denison, Tex., Bill Moore, Durant and Atoka, for plaintiff in error.

Charles Nesbitt, Atty. Gen., Joseph C. Muskrat, Asst. Atty. Gen., for defendant in error.

BRETT, Judge.

Laverne Calhoun, hereinafter referred to as defendant, was convicted in the district court of Bryan County on a charge of conjoint robbery by force, and on December 15, 1964 was sentenced to serve five years in the state penitentiary for such crime, in keeping with the verdict of the jury. Appeal has been perfected to this court.

The information in this case charged that one Anderson Bully and this defendant on July 19, 1964 committed the crime of robbery by force.

The record shows that Anderson Bully entered a plea of guilty to this charge and was sentenced to serve five years in the state penitentiary. He was returned to Durant from the state penitentiary and testified for the State on the trial of this defendant.

Anderson Bully testified that on the night in question he went to a beer tavern south of Durant, which is known as 'Harold's Place'. While there, he saw the defendant and Oscar Dennington in the tavern. That later, the defendant approached him and asked if he would like to make some money, and said that Oscar Dennington had two or three hundred dollars in his billfold. She instructed witness to go down the road, 'acting like a hitch-hiker'; that she would get Dennington in her car, and when they reached the place where he was standing, she would pick him up. After he got into the car, he was to hit Dennington on the head and rob him. They would split the proceeds of the robbery fifty-fifty.

According to this witness, Anderson Bully, they carried out this plan. He said when he got in defendant's car he found a small crowbar on the back seat of the car, with which he struck Dennington several times; that Dennington resisted; they fought in the car, and finally 'we wrestled on out', and fought on the ground. His testimony was that the crowbar slipped out of his hand, after they were out of the car, because it was 'slick with blood', and that he took Dennington's billfold out of his hip pocket when Dennington 'went limp'.

Bully testified that he saw a car approaching from the rear, so he got back into the defendant's car, and he and defendant drove on a short distance, then turned the car around and went back to Durant. They both counted the money in the billfold, and discovered it contained only nine twenty dollar bills, totalling $180. He said the defendant then told him that Dennington had some money in his shirt pocket, and she wanted to go back and search for it, but he refused to do this.

Bully continued, that after the fight and on the way back to Durant, he removed his shirt and threw it out the car window, because it was torn and bloody. He said the defendant took the billfold to count the money herself, and after she did that, she gave him $20 and drove him home. He said he wanted to go into his house to put on a clean shirt, but when he got out of the car the defendant gave him another twenty dollar bill, and drove off. He stated that he did not see the defendant again until they were arraigned together in court.

The victim of the robbery, Oscar Dennington, told a story similar to that of Anderson Bully, except that the details concerning his contact with the defendant were included. Without going into those details, it will suffice to say that he entered the automobile of defendant expecting to be driven home. He contended that the defendant suggested they drive to Denison, Texas, and they were en route to Denison when the defendant, against his advice, picked up Anderson Bully. Dennington's testimony corroborated the fight between himself and Bully. His story also corroborated Bully's testimony concerning the approaching car, which he attempted to flag down, but without success, and after which he crawled to a farm house. He said the people at the farm house called the police and ambulance.

G. T. Rich, of Arlington, Texas, testified that he was the driver of the car referred to as the 'approaching car'. Also that he suspicioned something was wrong and obtained the license number of the car. That he drove alongside of it and saw that its occupants consisted of a man and a woman, and the woman was driving. The testimony of Mrs. Rich was essentially the same as that of her husband.

The defendant testified in her own behalf. She contended that Oscar Dennington asked her to drive him to Denison, which she agreed to do, after he paid her $20. She admitted that she saw and talked with Anderson Bully in one of the taverns, which she and Dennington had visited prior to the drive toward Denison. However, she denied any previous arrangements with Anderson Bully, and said that the reason she picked him up on the highway was because she had become afraid of Dennington, and she recognized Bully and knew that he was a friend of her husband. Her testimony corroborated the story of the fight, but said that it commenced when Dennington attempted to make love to her, as they drove down the road. At that time, she contended, she told Dennington, 'just get away and leave me alone.' Bully then said to Dennington, 'God damn you, I will kill you', and struck him on the head. She stated further that she stopped the car and jumped out. After the two men got out of the car and continued the fight, she got back into the car. She experienced some difficulty getting the car started, and when she did, Bully jumped back in, and they drove away. She stated further that they left Dennington on the road, and as they left another car approached from the rear.

Counsel for defendant sets out three errors in his brief. The first error is: 'The district court committed error in admitting certain prejudicial evidence and exhibits in the trial below.' Defendant did not cite any authority in support of this proposition.

Defendant's principal contention is that the admission in evidence of the small crowbar, which Anderson Bully testified he found on the back seat of this defendant's car and which he used in striking Dennington, was error. Counsel contends that a proper foundation had not been laid for the introduction of the crowbar.

In Gouard v. State, Okl.Cr., 335 P.2d 920, this court said:

'Before physical object * * * is admitted in evidence, it must be sufficiently connected with the crime itself by proper identification. However, it is not necessary that such identification should positively and indisputably describe such article. If it is sufficiently described to justify its admission in evidence, the lack of positive identification goes to the wright of such evidence rather than its...